Davis v Tasion [1988] PGSC 2; SC364 (11 August 1988)

Unreported Supreme Court Decisions

SC364

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

S.C.A 45 & 46 OF 1988
BETWEEN
JOSEPH DAVIS & IRENE DAVIS
APPELLANTS
AND
DAVID TASION
CONTROLLER & COMMISSIONER OF POLICE
AND
JOHN LOHBERGER
CHIEF COLLECTOR OF TAXES
AND
LAWRENCE M. NEWELL
SHERIFF OF COURT
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
RESPONDENTS

Waigani

Amet Woods Los JJ
1 March 1988
27 April 1988

AMET J: These are two appeals from Orders of the National Court given on 10th and 11th August 1988 at Waigani wherein two suits W.S. 783/1986 and W.S. 784/1986 were dismissed for want of prosecution for non-appearance of the appellants by their lawyer. The same lawyer represented each appellant. Mr. G. Beaumont QC who also appears in these appeals appeared for the respondents in the National Court.

The appeals against those orders are on the single ground that the learned trial judge erred in law in dismissing the proceedings and seek orders that they be reinstated. The essence of this ground of appeal, it was submitted, was that the matters fixed for the two dates for hearing were not trials of the substantive suits but were interlocutory motions, and so the learned trial judge erred in law in proceeding to dismiss the entire proceedings.

A brief chronology of the background circumstances would be useful in the discussion of precisely what were fixed to be heard on the two dates 10th and 11th August, 1988.

1. The Writs of Summons were issued on 16th December, 1986 and served on or about the same day on the defendants.

2. The plaintiffs then filed a Notice of Motion on 19th December, 1986 returnable on 13th February, 1987 pursuant to Order 8, Rule 2 for various orders relating to the pleadings. This was adjourned generally by consent and for the Defendants to deliver their Requests for Further and Better Particulars.

3. The State Solicitor representing all the defendants filed a Notice of Intention To Defend on 7th January, 1987

4. On 13th March 1987 the appellants wrote to the State Solicitor requesting him to deliver the defendants requests for further and better particulars.

5. By the 31st March 1987 the Defendants had not delivered their requests for further and better particulars. The plaintiffs thus wrote on the same date to the Registrar of the National Court requesting entry of default judgment for default of filing of defence, pursuant to Order 12, Rule 25(b) of the National Court Rules.

6. The Deputy Registrar replied to the plaintiffs lawyers on the same date, 31st March, 1987 in the following terms:

“The default judgment cannot be entered for two reasons:

1. the procedural requirement that there must be Affidavit of search to be filed;

2. there is interlocutory matter dated the 13th February 1987 where both lawyers agreed to have it stood over generally which is pending and it is only fair that the defendant party lawyer ought to be informed of your intended applications.”

7. Upon receipt of this advice lawyer for the plaintiffs caused a search of the National Court Registry to be done and one of the plaintiffs did same and swore the Affidavit on 1st April 1987 of having done the search on 31st March 1987 at 3.15pm and noting that no defence had yet been filed by the defendants.

8. On 1st April, 1987 the State Solicitor wrote to the Registrar in the following terms:

“There are interlocutory proceedings which are adjourned sine die.

These proceedings were adjourned to enable the Defendants to advise the Plaintiffs of objections to the pleadings and to seek further and letter (sic) particulars of the claim. Mr. Reeve has taken longer than was anticipated to formulate the objections and particulars sought but this is now virtually completed and letters will be delivered shortly.----”

9. The defendants had not yet filed defences, insisting that the plaintiffs provide further and better particulars of the statement of claim to enable them to particularise the defences. A stalemate was reached.

10. The State Solicitor provided the defendants’ requests for further and better particulars by cover of letters dated 24th and 25th June 1987.

11. The State Solicitor advised the Chief Collector of Taxes on 27th November that:

“Until such particulars are provided (they are not at the moment) the plaintiffs cannot sign default judgment against the defendants nor the latter to be able to file defences”.

12. On 15th February 1988, the plaintiffs’ lawyer served notice on the State Solicitor that again they would move to enter default judgment in 14 days if defences were not filed.

13. On 24th February, 1988 the State Solicitor was adamant that:

“As put to you no defence will be filed in both actions until such time as each and every particulars sought by the Defendants are fully answered.”

14. On 29th February, 1988 Lawyers for the plaintiffs again applied to the Registrar of the National Court for entry of default judgments against the defendants for default of filing of defence, supported by Affidavit of lawyer for the plaintiff Mr. C. Karingu. In this Affidavit Mr. Karingu deposed to conducting a further search of the file relating to the proceedings in the National Court Registry and of finding no defence having been filed. Mr. Karingu also annexed in his Affidavit a copy of a letter of advice from Mr. L. Newell, in his capacity as Sheriff, dated 16th June 1987, to the Secretary for the Department of Justice. The terms of this advice is pertinent:-

“I refer to my letter of 1st June 1987 and advise that there is still no Defence filed.

Fortunately, there is also no Notice of Change of Lawyer from Messrs. John Gawi and Associates filed yet, however obviously when this is done there may well be no further grounds to hold-up entering a Judgment in Default of Defence”.

15. The Notice of Change of Lawyers was given on the 15th February, 1988

16. The Registrar Mr. L. Newell replied to the plaintiffs application of 29th February 1988 in the following terms on 3rd March 1988:

“I refer to your letter of 29/2/88. Please provide evidence that you have supplied or refused to supply the particulars requested by the State Solicitor. It would appear to me that until such time as Particulars are supplied to the State this matter cannot proceed any further”.

This seems to me to be a most extra ordinary ruling on the part of the Registrar, but I will return to it later.

17. The plaintiffs lawyers, not to be deterred in their pursuit of their clients’ interest again applied to the Registrar for entry of default judgment, on 11th March, 1988. I consider it necessary to set out the terms of that letter in full. It was in response to the Registrars advice above-quoted of 3rd March, 1988. It was in these terms:

“We acknowledge receipt of your letter of 3 March 1988 relating to the above. We note your comments therein.

We however, advise firstly that we are not obliged to supply or refused to supply the particulars requested by the Defendants as the requests for the particulars are not informed of pleadings.

Secondly, we advise that the Defendants in both proceedings are in default of filing their defence within time which expired on about 12 March 1987. See Order 8 Rule 4.

Thirdly, we advise that the Defendants are required to file their defence before the request for particulars. This then flows on in our opinion that the Defendants must seek leave of court for extension of time to file defence and to request particulars. See Order 8 Rule 36(3).

We therefore, request that you enter judgment in default as per draft order. We request that you take note of Order 2 Rule 31 too in that respect.”

There does not appear to have been a reply or decision by the Registrar on this application, because events appear to have overtaken it.

18. On the same day, 11th March, 1988 the State Solicitor filed a Notice of Motion returnable on motions day Friday 18th March, 1988 seeking orders that the plaintiff supply answers to particulars requested on 24th June 1987 to the defendants on or before the 31st March, 1988 and that the Defendants have leave to file their defences out of time.

19. The plaintiffs also filed a Notice of Motion on 16th March, 1988 returnable on 18th March, 1988 to move for orders that the defendants motion of 11th March 1988 be dismissed and for the further order that summary judgment be entered against the Defendants.

20. The two Motions were not heard on the 18th March and were stood over a number of times for a number reasons. Lawyers for the plaintiff wrote to the Registrar on 25th April, 1988 requesting the two matters be fixed for hearing in May 1988.

21. It would appear that the parties, in consultation with the Registrar, then put the matters into the civil called-over to be given dates for hearing. It is not clear on the records precisely when the two matters were listed for hearing on the 10th and 11th of August, 1988. Miss Joanne Weigall representing the Chief Collector of Taxes, in her evidence in the National Court on 10th August, 1988 recalled that:

“I attended a call-over of matters of 783 and 784 before the Registrar. It was either in July or it may have been in June.----

My recollection was that the dates were for trial:”

22. Against this mere recollection is a letter dated 9th May, 1988 by Mr. C. Karingu for the plaintiffs to the State Solicitor for the defendants on the matters. The terms of this letter are quite unequivocal. It was as follows:

“We refer to the above which were set down for hearing on the 10th and 11th of August, 1988.

We advise however that our instructions are to have the matters dealt with as soon as possible. The matters are only simple motions and do not need more than two hours for each party to be heard. Our instructions further are that the listing of the matter for hearing in August 1988 causes unnecessary delay.

We suggest in respect of the same that the motion filed by the Defendants be listed for hearing in June 1988. After that we shall list our motions so that we do away with the matter as soon as possible.

Finally, we advise that our instructions are to file Notice of Motions to have defendants motions struck out and list the plaintiffs motions for hearing by way of motion in June 1988, unless you agree to list your Motions for hearing on the first week of June 1988.” (My emphasis).

In the National Court on the 10th August 1988 Mr. Beaumont QC led the evidence of Miss Weigall, parts of which I have quoted already and then stated from the bar table that he had spent the last two days interviewing witnesses; the Sheriff, Mr. Reeve, a number of police witnesses and a Mr. Kochannek. “Witnesses statements were prepared and we were prepared to fight the matter. We were and are prepared to go to trial today.”

Mr. Beaumont continued:

“I came today prepared to argue interlocutory matters. There are a number of problems with the plaintiffs pleadings. But also I came today prepared to argue the merits of the case. My instructions were to get on with the case and argue the merits and get it concluded.”

I have quoted verbatim a good deal of the exchange of correspondences between the lawyers for the plaintiffs and the Registrars Office, and also between the plaintiffs lawyers and the State Solicitor representing the defendants. I considered it necessary to put the circumstances preceding the dismissal of the proceedings into their proper perspective, together with what transpired on the two dates, in my consideration of the essential issue; what were the proceedings that were fixed for hearing on the 10th and 11th August 1988.

It is abundantly clear to me that the plaintiffs were most persistent in their legal conclusion that default judgment should have been entered by the Registrar in their favour. They made application to the Registrar three times with no success. They then moved by cross-motion for the Court to rule, on the 16th March 1988, in response to the motion of the defendants. These motions were deferred a number of times. The plaintiffs were understandably anxious that they be heard as soon as possible. On April 25, 1988 they requested the Registrar to arrange for a judge to hear them in May 1988.

Although no precise notation or record was included in the Appeal book, I am quite satisfied that the two dates of 10th and 11th August, 1988 were allocated between 25th April and 9th May, 1988. The letter of 9th May, 1988 by Mr. Karingu for the plaintiffs, to the State Solicitor quite unequivocally states the two matters were set down for hearing on the 10th and 11th August, 1988. The letter further also quite clearly refers to the matters that were set down for hearing as “only simple motions and do not need more than two hours for each party to be heard.”

In all the circumstances that preceded this letter I have not the slightest doubt that as far as Mr. Karingu believed and understood on the 9th May, 1988, when he wrote the letter, that the matters fixed for hearing on the 10th and 11th of August 1988 were the two Notices of Motion, one by either party. He advised the same to the State Solicitor and I note that a copy of the letter was sent to the Registrar.

If this letter to the State Solicitor was to be given some weight to the effect that the dates of 10th and 11th August 1988 had already been allocated before 9th May 1988, then this would clearly contradict Miss Weigall’s vague recollection that the call-over was “either in July or it may have been in June”. This is just not good testimony to be relied upon. Her further recollection “that the dates were for trial” must also be viewed with grave reservation.

Mr. Beaumont QC stated before the National Court that he came prepared to argue interlocutory matters. He admitted that the trial proper would take more than the one day allocated to each suit. I do not believe that, if in fact it were the trials of the suits that were set down for hearing at the call-over, the lawyers representing either side would have agreed to only 1 day each. On just a very very approximate estimation I do not imagine the trials could have been completed in less than a week, let alone 1 day.

I have no doubt whatsoever in my mind on a review of all the circumstances that what were in fact fixed for hearing and allocated only one day each were the two motions and not the hearing of the main suits.

I consider that the learned tried judge erred in dismissing the whole suit which was not properly before him. I would therefore quash both the National Court Orders and reinstate the proceedings.

As the National Court proceeded on the wrong premise at the outset, and purported to dismiss the substantive proceedings, it could not be deemed to have validly dismissed the plaintiffs motion nor could it be deemed to have upheld the defendants motion in terms. In the event the National Court did not deal with these two opposing motions. They must as a necessary corollary be also reinstated for proper determination.

I return to the aspect of these proceedings relating to the plaintiffs applications to the office of the Registrar for entry of default judgments. As I have noted the plaintiff applied on three different occassions. The first application was replied by the Deputy Registrar on 31st March 1987.

In reply to the second application by the plaintiffs on the 29th February 1988, the Registrar wrote in these terms:

“I refer to your letter of 29/2/88. Please provide evidence that you have supplied or refused to supply the particulars requested by the State Solicitor. It would appear to me that until such time as Particulars are supplied to the state this matter cannot proceed any further.”

I repeat that I find those positions by the Registrar to be most extraordinary. The first reason given by the Deputy Registrar on 31st March 1987 why default judgment could not be entered, that is the procedural requirement to file an Affidavit of search, had long been complied with. The second reason that the defendants had to be informed was also complied with a number of times.

This procedure of obtaining default judgment is a litigants tool often made use of for default of a variety of procedural requirements, in the pleadings, in particular in default of filing of defence.

Order 7 Rule 9 states that:

“The filing of a notice of intention to defend under this Order does not relieve the defendant from any obligation under these Rules to file a defence or other pleading.”

The defendants were required to file and serve upon the plaintiff their defences before the expiry of 14 days after the date of expiry of the time limited for them to give notice of intention to defend. See Order 8, Rule 4(1)(a). Order 8 Rule 36(1)(a) provides that:

“the court may, on terms, order a party to file and serve on any other party particulars of any claim, defence or other matters stated in his pleading, or in any Affidavit ordered to stand as his pleading.”

Order 8 Sub Rule 36(3) however states that:

“The court shall not make an order under this Rule before the filing of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the defendant to plead or for some other special reason.”

For over 16 months the defendants defaulted in filing their defences as required by the Rules. Only on 11th March, 1988 did they file motion seeking a court order for the supply of further and better particulars as required by Order 8 Rule 36(3). In these circumstances I consider the attitude adopted by the Registrar against the enforcement of these appellants’ right to be grossly misconceived.

I find it further appalling that when the two motions could not be heard in March and April of 1988 and following Mr. Karingu’s letter of 25th April 1988 to the Registrar seeking dates in May 1988, that two days could not be found any earlier than 10th and 11th August 1988, over 3 months later, for two motions which would have taken only a matter of several hours each.

I have dealt with these procedural matters at some length although they were not relevant to the arguments on the appeals nor their outcome because on a full review of them I was troubled. They involved the principal administrative office of this court, the incumbent of which is a defendant in the proceedings the subjects of these appeals, in another official capacity. It is absolutely imperative that the performance of the functions of the office of the Registrar is not only seen to be impartial and independent, but is in fact and law, doing justice to all manner of people and litigants.

With respect I do not think that the tenor of the letter by the Registrar to the State Solicitor of 16th June 1987 could be considered altogether impartial. In hindsight I think it was unwise for Mr. Lawrence Newell in his capacity as Registrar to continue to deal with the appellants’ applications, to avoid insinuations of prejudice and partiality towards the defendants. This should have been avoided.

Finally, I do not consider that the issues involved in these appeals required briefing of overseas lawyers. The appeals are allowed with costs.

WOODS J: These appeals are against the dismissal of proceedings by the National Court on 10th and 11th August 1988. The history of these matters is that Writs of Summons were filed in December 1986 and Notices of Intention to Defend were filed in January 1987. There was then correspondence seeking particulars of the Claim and a change of lawyers. There was also an attempt to enter default judgements but they were rejected for the obvious reason that the claims were not for a liquidated amount. Then in 1988 there were motions by the Defendants seeking particulars and motions by the Plaintiff for summary judgment.

There is then correspondence pressuring to have the matters set down for hearing. It is not clear whether the matters mean the above referred to motions or a full hearing of the writ, although the only material in the Appeal Book suggest it was the motions, see the letter of May 9. There is no material anywhere to suggest that the motions had been dealt with and that a full hearing of the writs was ready. The next material in the Appeal Books is the hearing before Bredmeyer J. on 10th and 11th August. There was no attendance on behalf of the Plaintiffs and there appeared to be some doubts as to what actually was listed for hearing. There was only one day listed for each matter but were they to be full hearings of the original claims? There was evidence before the Judge but the words were - “my recollection was that the dates were for trial”.......”it was canvassed that interlocutory proceedings would be heard at the same time”...

There is nothing to suggest that the motions for summary judgement and for supplying particulars had been dealt with, there was no full pleadings so how could it possibly be held that the matters were ready for hearing of the full claims. I could envisage there may have been some argument on the motions for summary judgement only.

The power to dismiss for want of prosecution is set out in the rules and usually applies on default of pleadings or some such failure. But such application is usually made on motion or with appropriate Notice. There is of course the inherent power to dismiss for prolonged or inordinate delay. Normally of course the plaintiff is given the opportunity to remedy a default. There is nothing in the history of these matters to show that there has been a prolonged or inexcusable delay or a default only of the plaintiffs making and there has been no clear formal notice to the plaintiff to remedy any delay. And further the material strongly suggests that the dates 10th and 11th August were really for the hearing of the interlocutory applications.

I cannot understand how the Judge on 10th and 11th could have been dealing with full hearings of the matters and therefore have been able to exercise his discretion to dismiss the proceedings. I find he has erred.

I allow the appeals and order that the order dismissing the actions be quashed and the matters WS.783 and 784 of 1986 be reinstated.

LOS J: The appeals arise from the decision of the National Court sitting at Waigani on the 10th and 11th August 1988. In either case the Appellant was not present while Mr. G. Beaumont QC and Mr. Karri appeared for the Defendants.

The following orders were made by the National Court:

In the first case, “W.S. 783/86 is dismissed with costs to the defendants. I certify the case as an appropriate one for overseas counsel.”

In the second case, “The cause of action is dismissed with costs awarded to the defendants. I certify the case as a suitable one to engage overseas counsel”.

The grounds of appeal and the relief sought are stated in identical terms:

That the learned Judge erred in law in dismissing the proceedings;

That the order dismissing the proceedings be quashed; and

That the proceedings be reinstated.

The thrust of the Appellant’s argument in each appeal is that if any matter was to be dismissed it would have been the notice motion in each case; not the substantive proceedings. On the other hand the Respondents argue that the two cases were set down for trial. The Appellants knew that the dates set were for substantive hearing. At any rate, even if the dates were for hearing of the motions, the Respondents were entitled to seek to dismiss the proceedings because the appellants did not bother turning up at all in each case.

What were the two dates allocated for. Joanne Weigall of the Taxation Office apparently called to testify that the Appellants knew about the dates for hearing, said that from her recollection the dates were for trial. The Counsel for the Respondents points out that the fact that the matters came for Call-Over at all meant that dates were for substantive hearing. He had also said in the National Court that he came prepared to argue interlocutory matters as well as the merits of the cases.

What had transpired up to the date of the decisions as shown by the Appeal Books and so far as relevant are as follow: After the Writs were issued on the 16th December 1986 Notices of Intention To Defend were filed by the Respondents on the 7th of January 1987. On the 13th February at the hearing of a motion filed by the Appellants, all the parties agreed to stand over the motion on an understanding that the Respondents would deliver written requests for further and better particulars of the claims. On the 13th March 1987 the Appellants lawyers wrote to the Respondents lawyers asking them to deliver their request. On the 1st April 1987 the Acting State Solicitor advised the Registrar of the National Court that particulars sought were not yet completed but they were virtually completed. Two months later, on the 24 June 1987, the Respondents lawyer sent the completed request for further and better particulars. In the following year, February 15 1988, the Appellants’ lawyers advised the lawyers for the Respondents that if within 14 days no defences were filed they would be seeking to enter default judgments. The Acting State Solicitor responded on the 24the February saying no defences would be filed until such time as each particulars sought were provided. Five days later - 29th February - the Appellants requested the Registrar of the National Court to enter judgments by default. On the 3rd March 1988, the Registrar responded by saying that default judgments could not be entered in a claim for Liquidated Demand unless there was a default of verification, and further no default judgements would be entered when particulars requested had not been supplied. On the 11th March the Appellants put forth legal arguments to the Registrar saying that the Respondents were in default of filing their defences within the time limit. They must seek extension of time and file their defences before they requested for particulars. The Registrar was again requested to enter default judgments. Up to this stage, it appears, there was a deadlock. Each party filed a Notice of Motion returnable on 18th March 1988 wherein the Respondents were seeking orders to compel the Appellants to supply the particulars requested and also seeking leave to file defences out of time, while the Appellants were seeking orders, as well as to dismiss the motion by Respondents, to enter summary judgments against them. On this day before the Motions were heard a preliminary point was raised and the counsel proceeded to argue that point. As it became necessary to reserve the decision on the preliminary point, the motions were stood over. On April 25, 1988 the Appellants’ lawyer wrote to the Registrar urging him to organize a judge to hear the motions in May expressing concern that the matters were dragging on. Next, the Appellants’ lawyer somehow having heard that the matters were set down for hearing on the 10th and 11th August 1988 wrote a letter to the Acting State Solicitor on the 9th May and said the matters should be heard sooner than August as they were simple motions.

The sequence and the nature of events as I outlined make certain things clear: The Appellants were gearing up to argue the Notices of Motion. Up to this stage even the Respondents’ lawyer neither directly nor indirectly mentioned anything about a substantive hearing.

It seems to me there was a serious misunderstanding between the lawyers for the two parties. Clearly the correspondence by the lawyers for the Appellants to the lawyers for the Respondents relate to motions. Ms. Weigall’s evidence shows she was not aware of the contents of the letters to the State Solicitor after the Call-Over because since the Call-Over she had “had no discussions with the other side or correspondence over these two cases”. I do not intimate that there was a deliberate attempt by anybody to mislead the Court. But it appears clearly to me the hearing on each day was commenced on a wrong premise. His Honour’s decisions on both matters followed from the hearings based on wrong premises. I think therefore the authorities cited by the counsel for the Respondents, though very useful for the principle they stand for, are not relevant here: Jonesco v. Beard [1930] AC 298, Hip Foong Hong v. H. Neotia & Company [1918] UKPC 65; [1918] AC 888, Cabassi v. Vila [1940] HCA 41; [1940] 64 CLR 130.

Counsel also relies upon O 7 R 9 of the Rules of the Supreme Court as a support for the proposition that the appeals must fail for the grounds of appeals lack particularity:

9. “Without affecting the specific provisions of Rule 8, it is not sufficient to allege that a judgment is against the evidence or the of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law”.

I agree to an extent that the formulation of the ground “That the learned judge erred in law in dismissing the proceedings” is very broad and hence open to a criticism. However, the Appellants lawyer was able to point to the materials in the Appeal Book accepted and certified by both parties to show what the grounds meant.

It may be argued that even if the motions were set down for hearing the Respondents were entitled to ask the Court to dismiss the proceedings on the sole ground that neither the Appellants nor their lawyers appeared to argue the motions.

It is obvious to me that the proceedings could not have been dismissed for want of prosecution because on the material supplied in the Appeal Books the Appellants had done everything to a point where they were pushing for default judgments. Except for non appearance on those two days there was nothing on the part of the Appellants that could be described as intentional, contumelious, inordinate or inexcusable: Allen v. Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229, cited by Woods, J. in Ronald Nicholas v. The Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133.

As far as it is apparent to me, the dismissal of the proceedings were penalty for non-appearance by the Appellants on both occasions. In my respectful view, apart from the wrong premises in which the cases had proceeded, the dismissals of the cases were not justified. The Respondents had taken so long to formulate requests for further and better particulars. No defence had been filed. The Appellants therefore sought to obtain Default Judgements in accordance with the National Court Rules. But they were denied from what appears to me to be a misunderstanding of the Rules. The Appellants had forced the issues to be argued before the Court. Under O 7 R 9 filing of a notice of intention to defend does not relieve a party from any obligation to file a defence. A request for further and better particulars does not alter the obligation to file defence: O. 8 R. 23. Whether the Appellants took the view that their claims were for liquidated demand or for unliquidated damages, it did not matter because the Respondents were way out of time required by O 8 R 4(1). The Appellants were entitled therefore to rely on the defaults and urge for default judgements to be entered against the Respondents. If the claims were for unliquidated damages, the Appellants were quite entitled to seek to invoke O. 12 R. 28 to enter judgement against the Respondents for damages to be assessed. For a comparable practice in other jurisdictions I refer to Odgers’ Principles of Pleading and Practice 21st edition at page 56:

“If, however, the plaintiff’s claim is for unliquidated damages, he cannot immediately obtain final judgment since the damages have to be assessed. He gets instead what is called an interlocutory judgment which he can afterwards convert into a final judgment. (Order 13, r.2.) If the action be solely in detinue the plaintiff may at his option either enter interlocutory judgment against the defendant for the return of the goods or their value to be assessed and costs, or enter interlocutory judgement for their value to be assessed and costs. (Order 13, r.3.).

In my respectful view the circumstances I have shown did not warrant the dismissal of the substantive proceedings. A dismissal of each Motion with costs would have been the most proportionate ‘penalty’ under the circumstances. His Honour the trial judge has erred in this respect. I would uphold the appeals therefore and quash the orders dismissing the proceedings. I would order that the proceedings in WS 783/86 and WS 784/86 be reinstated. I would award the costs of these appeals to the appellants.

As to the costs before the National Court, I would affirm the National Court decision. But as to the level of costs because the only matters expected to come for hearing were the motions, it was unnecessary to engage overseas Counsel. I would therefore quash the decision certifying the costs on overseas counsel level.

ORDERS BY THE COURT

1. Appeals be allowed.

2. Orders dismissing the proceedings be quashed.

3. The proceedings W.S. 783/1986 and W.S. 784/1986 be reinstated.

4. Defendants Notice of Motion dated 11th March, 1988 be reinstated.

5. Plaintiffs’ Notice of Motion dated 16th March, 1988 be reinstated.

6. The orders for costs to the defendants in the National Court be affirmed but without certification for overseas counsel

7. Costs of these appeals against the Respondents.