Owner of the Ship Classique v Marine Services Ltd [1993] SBCA 3; CA-CAC 008 of 1992 (30 June 1993)

IN THE COURT OF APPEAL OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Appeal Case No. 8 of 1992

BETWEEN:

THE OWNER OF THE SHIP "CLASSIQUE"
Appellant

AND:

MARINE SERVICES LIMITED
Respondent

Connolly P.
Williams J.A.

Delivered the 30th day of June 1993.

JUDGMENT - WILLIAMS J.A.

This is an appeal against the order of Muria A.C.J. of 6th August 1992 whereby he refused to set aside the judgment of Ward C.J. entered on 4th July 1990. Given the grounds which were argued before Muria A.C.J. his judgment was substantially correct for reasons which will appear later, but because of matters which emerged in the course of the argument on appeal it is desirable that this Court take a broader look at what has happened in the course of this litigation.

On or about 29th March 1990 the yacht "Classique" went aground about sixty miles from Honiara, and sent out a "mayday" signal. In a letter dated 12th July 1990 from Norris Ward, then acting as Solicitors in New Zealand for the owner of the yacht to a lawyer in Honiara named Campbell, it was stated that the vessel "grounded on a reef not marked on the chart." In an affidavit by L.C. Holmes, of the New Zealand Solicitors now acting for the owner, it is stated that the vessel "went aground on the coral sand mound". It is not necessary for this Court to make any precise finding with respect to the grounding, but it should be noted that the manner and nature of the grounding could well be relevant to the quantum of salvage. Apparently it would be the contention of the salvor, the plaintiff Marine Services Limited, that the vessel was grounded on a reef.

In response to the "mayday" signal R.J. Thomas, a director of the plaintiff company, and others proceeded to the stranded vessel in order to render assistance. On 30th March Mel Bolton, the owner of "Classique", and Thomas signed a "No Cure - No Pay Salvage Agreement" in a Lloyd's standard form. On 30th and 31st March the plaintiff carried out the salvage and towing operation and by 7.00 p.m. on 31st March 1990 the vessel was "lying safely afloat at Tulagi Harbour" in the Solomon Islands. At that time a Termination of Agreement and a Certificate of Delivery/Acceptance were duly signed by Thomas and Bolton. Then on 1st April 1990 the plaintiff delivered its account for salvage services and towage in the total sum of A$85,000.00.

On 23rd May 1990 the plaintiff caused a writ to be issued naming as defendant "The Owner of the Ship 'Classique'" and exhibited to that writ a copy of the statement of claim seeking A$85,000 for salvage, together with interest and costs. On the same day a Warrant for the Arrest of the Vessel was also issued. The Writ and Warrant of Arrest were duly served on 25th May 1990. In consequence of that the vessel was duly arrested and thereafter was in the custody of the Marshall of the court.

It should be noted that Order 31 provides that English Admiralty Practice shall be followed; this was clearly an admiralty action in rem.

In an affidavit in support of the application for Warrant of Arrest, and in the statement of claim, the allegation was made that Bolton, as owner, had failed to provide security in accordance with the Salvage Agreement to cover the salvage fees, interest, and arbitration costs together with legal fees. The plaintiff had in fact demanded security in the total sum of A$130,000 pursuant to the Salvage Agreement. It should be noted briefly that the Salvage Agreement contained provisions for the quantum of salvage to be determined by arbitration in London and for disputes to be resolved by arbitration by a person appointed by the Committee of Lloyds. Such arbitration was to be in accordance with English law.

On 31st May 1990 Messrs Norris Ward, then acting as Solicitors for Bolton, wrote to Ms Corrin, the Solicitor for the plaintiff. Inter alia the letter stated "as we understand it your client claims salvage costs of A$85,000 and has arrested the yacht, but is prepared to release the yacht upon the substituted security of a mortgage of the farm property at Hamilton owned by our client and his wife. Our client is prepared to give that mortgage to regain possession of the yacht." Ms Corrin replied by letter dated 1st June 1990 acknowledging receipt of the letter of 31st May, and stating she "looked forward to hearing from your further on this matter." She also stated that she had advised Bolton that he should get legal representation with regard to the admiralty proceedings. That statement is a reference to a matter deposed to by Ms Corrin in one of her affidavits, namely that shortly after the arrest of the vessel Bolton came to her office; she then advised that it would be necessary for him to get legal representation.

On 1st June 1990 somebody, presumably Mel Bolton, attended at the Registry of the High Court in Honiara and lodged a handwritten document which has since that date been regarded as an Entry of Appearance by the owner of the vessel in question. After the title to the action taken from the Writ the document merely states:-

"Memorandum of postal address for service of documents-

C/- Wayne Wilkinson Ltd PO Box 6304 Auckland New Zealand"

The document states that it was filed on 1st June 1990 and gives the date of the Writ. The court seal is affixed confirming that the document was filed at 11.12 a.m. on 1st June 1990. The document is not signed. Bolton had instructed Norris Ward prior to that date as they wrote to the plaintiffs' Solicitors on 31st May 1990, but he may well not have been acting on their specific advice in filing that document. Norris Ward in their letter to Campbell of 12th July 1990 stated:

"Mr Blton (without advice) purported to file what we would call an Address for Service (copy enclosed) prior to leaving the Solomon Islands."

Other material in the record establishes that the "Classique" was insured through Wayne Wilkinson Insurance Limited of Auckland.

The action was one in rem, and in accordance with the dnorsement on the Writ an appearance could only be entered by the owner of the vessel or some other person interested in it. In Williams and Bruce Admiralty Jurisdiction and Practice (3rd Edition) at 274 the following observation is made:-

"In practice no objection is raised to appearances being entered for the owners of property proceeded against without the names of such owners being inscribed on the memorandum of appearance."

Here there was only one owner and the appearance could only have been by him. In my view, particularly after the lapse of more than three years and given what he has done, it is too late for the owner to contend that the document filed on 1st June 1990 was not an appearance by him.

Once that appearance was filed the plaintiff was not limited to process against the res, and thereafter had additional rights to proceed in personam against the owner who had entered an appearance (see The Dupleix [1911] UKLawRpPro 25; [1912] P. 8, the cases therein referred to, and British Shipping Laws, vol. 1, Admiralty Practice para. 325).

The next occurrence in this saga was the flight of Bolton on board the "Classique" from the Solomon Islands. Sometime on the evening of 1st June, Bolton sailed from the Solomon Islands notwithstanding the fact his vessel was under arrest. There is no doubt that he then became in contempt of the High Court, and he has done nothing since then to purge his contempt. (See British Shipping Laws, vol. 1, Admiralty Practice paras 270 and 608).

As the time for delivery of defence had expired the plaintiff applied by motion for judgment in default of delivery of defence (O. 29 r.12). Given that the vessel and the owner had fled the jurisdiction an order was made for substituted service of that notice of motion on Norris Ward the New Zealand Solicitors then acting for Bolton. Such service was effected on 29th June. That elicited from Norris Ward a letter to Ms Corrin dated 4th July 1990. Relevantly that letter stated:-

"We confirm our telephone discussions with your Ms Corrin last evening that we had just managed to obtain instructions from Mr. Bolton in connection with the proceedings which have been served on him via this office. We confirm our instructions that Mr. Bolton wishes to defend the claim brought against him, and indeed that the Lloyds open form contract specifically requires arbitration, and resolution by English law, as a means of resolving differences over the amount of salvage whether or not security has been paid.

We confirm that having spoken to you we made strenuous efforts this morning to contract one of the solicitors whose names you have given us ... without success.

We further telephoned the High Court at Honiara to explain that we now had instructions, we wish to oppose via local solicitors, and could not contact local solicitors. We asked that that message be passed to the Judge at a little after 9.00 a.m. your time.

Ms Corrin replied by letter dated 5th July 1990 in which she stated that she informed the High Court on 4th July 1990 in which she stated that she informed the High Court on 4th July 1990 that "you had contacted me indicating that you had instructions to defend the claim." That statement is confirmed by the notes of the hearing on 4th July made by the Chief Justice.

Chief Justice Ward heard the motion for judgment on 4th July and the order on the record is in the following terms:-

"Upon hearing Counsel for the Plaintiff it is Ordered That:-

1. Judgment be entered for Plaintiff in the sum of A$85,000 together with interest at 18% from 31st March, 1990.

2. Costs of the Plaintiff be paid by the Defendant.

3. On taxation of costs the restrictions imposed by the Scale of Costs in Appendix J to the High Court (Civil) Procedure Rules be removed and all reasonable costs be allowed together with all reasonable fees incurred in instructing overseas Counsel."

The notes of the learned Chief Justice and documents on the file indicate that, whilst there was material establishing the default in delivery of a defence, there was no material, other than the account of 1st April, before the court establishing the quantum of the salvage claim; there was nothing establishing that the defendant had agreed to the quantum of salvage. There was also nothing in either the Salvage Agreement or other material supporting an award of interest at the rate of 18%.

There has been a vast amount written about the principles upon which the quantum of salvage should be determined. It is not necessary to refer to specific authorities for the proposition that the amount is to be determined in the discretion of the trial judge, and numerous factors have been established as being relevant to that task. There is a useful collection of relevant cases and principles in Parks The Law of Tug, Tow, and Pilotage at 1130-1137 and in Williams and Bruce Admiralty Jurisdiction and Practice at 151. It is beyond dispute that a claim for salvage is not a claim for a liquidated amount; it is analogous to a claim for damages at common law. Here the learned Chief Justice had no material before him upon which he could determine, applying the relevant principles, the quantum of salvage to which the plaintiff was entitled; all he had was the account of 1st April and that was in no way sufficient to enable him to assess salvage. In the circumstances the plaintiff was, at best, entitled to interlocutory judgment for an amount of salvage to be assessed. Given the material before the court on 4th July 1990 it would appear that the claim was treated as one for a liquidated sum and that is why judgment was given for the amount claimed in the statement of claim. There are grounds in the light of all the material before this Court for concluding the amount of A$85,000 was greatly excessive, but that is not to say that that amount could not ultimately be justified by proper evidence.

In my view the judgment was irregularly obtained. There is some authority for the proposition that judgment entered on the basis that the claim was for a liquidated sum when it was not was an irregularly obtained judgment (Alexander v. Ajax Insurance Co. Ltd [1956] VicLawRp 5; [1956] V.L.R. 436 at 449). There is also a line of authority, culminating in the decision of the Court of Appeal in Bolt & Nut Co. (Tipton) Ltd v. Rowlands Nicholls & Co. Ltd. [1964] 2 Q.B. 10, establishing the proposition that a default judgment entered for too large a sum was irregular. This Court cannot finally conclude that the judgment was for too large a sum, but it is clear that there was no evidence at all before the learned Judge supporting the quantum of the judgment. By analogy with the cases to which I have referred, this judgment was irregularly entered.

The usual consequence of a default judgment being irregularly obtained is that it will be set aside ex debito justitiae and there is no need for the defendant to establish a defence on the merits. The leading authority in support of that proposition is Anlaby v. Pretorius [1888] 20 Q.B.S. 764 (cf. Farden v. Richter [1889] UKLawRpKQB 79; [1889] 23 Q.B.D. 124). But there are numerous authorities supporting the proposition that where a defendant seeks to have a default judgment set aside on the basis that it was irregularly obtained then the irregularity must be specified in the application. That has not been done here, and there was no suggestion on the hearing of the application before Muria A.C.J. that the defendant was relying on any irregularity.

Before considering the consequences of the irregularity in the circumstances of this case it is necessary to refer briefly to certain events which have occurred in the three years since the judgment in question was obtained.

On 5th July 1990 Ms Corrin sent by fax a copy of the judgment to Messrs Norris Ward. Those New Zealand solicitors in turn contacted a solicitor in Honiara by letter dated 12 July. In that letter it was acknowledged that default judgment had been entered, but it was asserted that "the amount claimed for salvage is vastly excessive." It also raised the question as to whether or not the High Court of the Solomon Island had jurisdiction given the arbitration clause in the Salvage Agreement. The letter went on to state: "Our instructions in connection with this matter are that we must seek to promptly set aside the judgment or appeal it."

Nothing appears to have been done as a direct result of that correspondence.

When Bolton fled the Solomon Islands in the "Classique" he went to New Zealand. In consequence the plaintiff made attempts to have the judgment of 4th July 1990 registered in New Zealand. On 26th November 1990 the judgment was provisional registered in New Zealand in the total sum of NZ$121,080.67. Bolton, the judgment debtor, was given a period of thirty days from the date of service to make an application to have that registration set aside. Notice of Registration was served on 20th July 1991 and he applied to have it set aside on 16th August 1991. That application was heard by Barker J. of the High Court of New Zealand on 18th February 1992 and his judgment was delivered on 25th March 1992. As appears from the reasons for judgment a number of arguments were addressed to the court in support of the contention that registration of the judgment should be set aside. Barker J. concluded that "the court in the Solomons had jurisdiction to enforce the salvor's maritime lien by ordering the arrest of the ship." He also concluded that Bolton's notice of appearance may well have been "a step in the proceedings which waived the arbitration agreement."

Barker J. then considered the principles regulating the assessment of salvage and concluded that, rather than undertaking such an exercise, the court on 4th July 1990 appeared to have given judgment "for a simple contract debt." He went on:-

"However, the fact that damages may have been calculated on a wrong basis does not deprive the Solomon Islands Court of jurisdiction. All that can be said is that there may be grounds for seeking a re-hearing on quantum. That is a far cry from saying there was no jurisdiction to enter judgment."

The reasons then dealt with other arguments addressed to the court, and though the learned Judge was understandably "unhappy about the basis of the judgment," he concluded that there was no basis for setting aside its registration in New Zealand. The conclusion he reached was stated in the following terms:-

"To do justice to the debtor I direct that the final entry of judgment in this Court be deferred for two months to enable the debtor (if he so wishes) to seek a re-hearing of quantum only in the Solomon Islands. It will of course be for the Judge in that Court to decide whether in accordance with the practice of that Court the re-hearing ought to be entertained and if so, whether the damages ought to be reduced. I emphasise that the judgment is entitled to be registered, but I have some misgivings about the quantum in the circumstances related."

Bolton obtained an extension of time from Barker J. and on 16th June 1992 made such an application. He sought an order that the judgment entered on 4th July 1990 be set aside and a further order staying execution of that judgment. The hearing of that application took place before Muria A.C.J. on 28th July and he gave his decision on 6th August 1992. It is from that decision that this appeal is brought. It is clear that his Lordship considered there had been undue delay in making the application; there are frequent references in the reasons to the two year period. That was a factor which obviously affected his reasoning. As his Lordship recorded in his reasons, Mr. Kama, who appeared for the defendant-applicant, raised two basic arguments in support of the application:-

"First Mr Kama argued that the defendant has a defence in law in that the amount claimed by the plaintiff was unreasonable as being too excessive. Secondly he argued that the High Court in Solomon Islands does not have jurisdiction to entertain the claim which he said, it should be bought in the Courts in England."

The first argument was rejected on the ground that the asserted defence was not a defence "on liability but a dispute as to the quantum." The only attack on quantum was that it was "too excessive" and impliedly the learned Chief Justice recognised that, whilst such a point was appropriate to an appeal against the decision, it was not relevant of itself on an application to have the judgment set aside.

As to the question of jurisdiction his Lordship pointed to the fact that Bolton had "waived his opportunity to challenge the jurisdiction" and that it was too late, some two years later, to attempt to do so. He rightly observed: "The entry of appearance is not conditional and as such the defendant had taken a step in the action and cannot now complain of want of jurisdiction." The reasons concluded as follows:-

"The Court has discretion whether to set aside a judgment or not. In this case, I am not satisfied that this is a case in which the Court can exercise its discretion in favour of setting aside the judgment obtained by the plaintiff two years ago, on 4th July 1990. For the reasons aforesaid, this application must fail."

As I have already stated the learned Chief Justice was, subject to one matter to which I will later refer, substantially correct in rejecting the arguments addressed to him on the application to have the judgment of 4th July 1990 set aside.

The New Zealand proceeding for registration of the judgment in that country was then again brought before Barker J. on 22nd October 1992. He made further conditional orders relating to the registration of the judgment but it is not necessary to refer to what he then said in any detail.

The essential question is whether or not the appellant (effectively Bolton) is entitled to rely on the hearing of this appeal on an irregularity in the judgment sought to be set aside when the irregularity was only brought to light by members of the Court of Appeal during the hearing. Ultimately the answer to that question in this case must also be dependent upon the relevance of the period of delay between the entering of the irregular default judgment and the application to have it set aside, and also the circumstance that at all material times the appellant has been in contempt of court.

The failure to particularise the irregularity in the application is itself no more than an irregularity in this particular proceeding which need not necessarily, in the exercise of the court's discretion, vitiate the application. Ordinarily where a judgment irregularly obtained is set aside ex debito justitiae the plaintiff who initially obtained that judgment will be ordered to pay costs occasioned thereby and of the application to have it set aside. If the irregularity was not particularised in the application then that may well be good ground for the court, in the exercise of its discretion, declining to make that usual order as to costs. But as Sir Owen Dixon said in R.T. Company Pty Ltd v. Minister of State for the Interior [1957] HCA 39; (1957) 98 C.L.R. 168 at 170: "It is an irregular judgment and ought not to be on the records of the Court...." That is also my view; once it is established that a judgment has been irregularly obtained and is therefore bad it ought to be set aside and not allowed to remain as a judgment of the court. That is really inherent in saying that such a judgment will be set aside ex debito justitiae.

Delay has always been recognised as a relevant factor when considering the setting aside of a judgment regularly obtained; but even in such cases the courts have recognised that the overriding factor is whether or not the other party would be prejudiced by having a default judgment set aside so that there could be a hearing on the merits (cf. Evans v. Bartlam [1937] A.C. 473). Indeed in Paterson v. Wellington Free Kindergarten Association Incorporated [1966] N.Z.L.R. 975 the appellate court allowed a default judgment regularly obtained, to be set aside notwithstanding the extraordinary length of the delay in making the application, namely fifteen years.

But the authorities indicate that delay will not ordinarily prevent the setting aside of a judgment irregularly obtained. The Court of Appeal in Atwood v. Chichester [1878] UKLawRpKQB 4; [1878] 3 Q.B.D. 722 was concerned with an application to set aside an irregularly obtained judgment. The action as constituted was in the view of the court "not maintainable." In the course of his judgment Bramwell L.J. said at 723-4:-

"But it has been argued that the defendant is now too late.....Here the action in its present form is not maintainable, and it must be taken that when the plaintiff issued the writ, he knew that he could not succeed. What harm will be done to the plaintiff by allowing the defendant to appear? The objection of lateness ought not to be allowed to prevail."

Bret L.J. considered that the plaintiff in the circumstances had "suffered no irreparable mischief by the delay" (724). The question came before the Court of Appeal in a more acute form in Muir v. Jenks [1913] UKLawRpKQB 82; [1913] 2 K.B. 412. In that case the plaintiff had irregularly signed judgment in default of appearance for a sum in excess of that which was due to him. From May 1912 to March 1913, no question as to the judgment was raised by the debtor. It was argued that the debtor was therefore precluded by delay from having the judgment set aside. Dealing with that Buckley L.J. said at 415:-

"In my opinion that is wrong. It is the duty of the creditor if he obtains a wrong judgment to have it set right. It is not the duty of the debtor against whom he has obtained the judgment to do so. The question therefore does not turn upon delay by the debtor. The position is this. Here is a judgment which is wrong. The person who holds it has not sought to set it right. On the contrary he has said there was no good in doing so."

That decision was considered by Harman L.J to be determinative in Bolt & Nut Co. (Tipton) Ltd v. Rowlands Nicholls & Co. Ltd. As noted above the judgment in that case was irregularly obtained because it was for too large a sum. The judgment was entered on 13th September 1962 and it was not until 29th July 1963 that an application was made to have it set aside. Notwithstanding the delay the court considered that the judgment should be set aside ex debito justitiae. The question of delay was also raised in R.T. Company referred to above. The full passage in the judgment of Sir Owen Dixon is to following effect:-

"I have had some doubt as to the course I should take having regard to the delay and to the attempted use made of the existence of the judgment in the proceedings before Fullagar J. But I think I ought not to allow the delay or the course taken by the defendants before Fullagar J. to operate to keep on foot against the defendants an irregular judgment imposing on them a liability jointly to which the claim did not extend. It is an irregular judgment and ought not to be on the records of the Court notwithstanding that I can see that the imposition of a joint liability is probably a matter which has no great practical importance. But I think that so far as to the delay affected the course afterwards taken by the plaintiff I may take it into account in imposing terms and that I will proceed to do." (170)

The only case I could find in which delay alone formed the basis of a refusal to set aside an irregularly obtained judgment was a single judge decision in Victoria: Nevill v. Hanley [1888] VicLawRp 97; (1888) 14 V.L.R. 270. In that case the delay was a mere three weeks. In the circumstances I do not find that decision persuasive given the more considered approach adopted in the other authorities to which I have referred.

I have come to the conclusion that because of the irregularity in the judgment of 4th July 1990 even the delay of three years prior to the irregularity being considered ought not prevent the court from setting it aside. However the delay is such that if the judgment were set aside it ought not affect the plaintiff's position as regards costs of proceedings taken in the intervening period, and the defendant should pay all of the costs associated with having the judgment set aside.

In the light of what I have just said Muria A.C.J. placed too great a reliance on the question of delay in his reasons for judgment. In the circumstances it is not necessary to say more in that regard. As already noted insofar as he disposed of the arguments specifically addressed to him his reasoning was proper.

That leaves for consideration the question of the relevance of the appellant being in contempt of court. As previously noted the appellant placed himself in contempt of court on 1st June 1990 when he fled the jurisdiction in his yacht. The last known whereabouts of the yacht and Bolton, so far as revealed in the material before this Court, was that they were, some months ago, sailing towards the Caribbean via Cape Horn and Rio de Janiero. Bolton has neither done anything nor offered to do anything in order to purge his contempt. When in the course of argument I raised with his counsel the question of a payment into court being a condition of setting aside the default judgment, the response was that counsel had no instructions to accept any such condition.

It has been long recognised that a party in contempt faces a hurdle in making any voluntary application to the court in the proceedings in which he is in contempt. Lord Bacon laid down the rule in Chancery in 1618 that "they that are in contempt are not to be heard neither in that suit, nor in any other, except the court of special grace suspend the contempt." (Quoted in Hadkinson v. Hadkinson [1952] P. 285 at 295.) Lord Chief Baron Gilbert in about 1712 stated the principle as follows: "Upon this head it is to be observed, as a general rule, that the contemnor who is in contempt, is never to be heard, by motion or otherwise, till he has cleared his contempt, and paid the costs: as, for example, if he comes to move for anything or desires any favour of the court." There is a useful discussion of the principle as it was applied in earlier times in Daniell's Chancery Practice (7th Edition) vol. 1 at 724-7.

Recent authorities suggest some weakening in the application of the principle. In Leavis v. Leavis [1921] P. 299 the husband was in contempt of the Divorce Division in that he had failed to pay costs and alimony. He applied to the court for an order staying proceedings brought by his wife. Hill J. determined that in the circumstance he ought not entertain the summons. He recognised that in the circumstances it was in the discretion of the court to refuse to entertain the application if the contempt was due to the fault of the husband.

The matter was considered in greater depth by the Court of Appeal in Hadkinson. On dissolution of marriage the wife was given custody of the only child until further order, but was directed that the child should not be removed out of the jurisdiction of the court without its sanction. Subsequently the wife caused the child to be removed to Australia. The father obtained an order directing the mother to return the child to the jurisdiction by a certain date. The mother sought to appeal against that order but the Court of Appeal upheld the preliminary objection that the appeal should not be heard because the mother had been at all times, and still was, in contempt. Romer L.J. (with whom Somervell L.J. agreed) observed at 288 that it was "the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void." He then went on to deal with the consequences of a person being in contempt and stated that "no application to the court by such a person will be entertained until he has purged himself of his contempt." (289) Relevantly he also said:-

"It appears to me that this is the very kind of case in which the ordinary rule should be applied in all its strictness. Disregard of an order of the court is a matter of sufficient gravity, whatever the order may be . . . Least of all will the court permit disobedience of an order that a child shall not be removed outside its jurisdiction. The reason for this is obvious. The court cannot exercise its quasi-parental powers in relation to a child unless effect can be given to its orders, and it cannot enforce its orders if the child is taken abroad. Once a child is removed from the jurisdiction no satisfactory means have ever been devised of ensuring or enforcing its return." (292)

Their Lordships' final conclusion is expressed in the following passage:-

"Undoubtedly the mother should be heard before a final decision is reached on a matter so vital to the infant as his future domicile. Let her be heard, however, when the boy's return within the jurisdiction will have produced the dual effect of partially purging the mother's contempt and of enabling the court to enforce such order with regard to the child as it may then think proper to make." (294)

The other member of the court, Denning L.J., entered into a more detailed history of the principle. It is worthwhile noting some of his observations:-

"The rule which we are asked to invoke - that a party in contempt will not be heard - was never a rule of the common law. It was a rule of the canon law which was adopted by ecclesiastical courts and the Chancery Court ... If an order of the Chancery Court or the ecclesiastical court was disobeyed, the party was held to be in contempt. .. It was left to the ecclesiastical courts and the Chancery Court to enforce their own orders in their own way. But each of those courts also adopted the rule of the canon law that they would not hear a party who had disobeyed its orders." (295)

His Lordship then referred to the statements of principle quoted above as formulated by Lord Bacon and Gilbert C.B. It was noted that before the Judicature Acts the rule was extensively used in Chancery where there had been failure to obey an interlocutory order. The judgment goes on:-

"The ordinance of Lord Bacon was, however, capable of working great injustice, and in the course of practice it came to be much restricted in scope. It was confined to cases where a party in contempt... came forward voluntarily and asked for an indulgence in the self-same suit. It was no indulgence for a plaintiff to bring his cause to a hearing or for a defendant to defend himself." (296)

It was then pointed out that the Divorce courts inherited power from the ecclesiastical courts and the Chancery court. A number of cases in that court were referred to, including Leavis, wherein it was stated that it was a matter for the discretion of the court, and all the circumstances of the case, whether the party in contempt would be heard or not.

Denning L.J. then went on to discuss what he termed "the modern rule"; he said:-

"It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance.... Applying this principle I am of opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.... So long as this boy remains in Australia it is impossible for this Court to enforce its orders in respect of him. No good reason is shown why he should not be returned to this country so as to be within the jurisdiction of this Court. He should be returned before counsel is heard on the merits of this case, so that whatever order is made, this Court will be able to enforce it." (298)

The rule as formulated by Denning L.J. may be more limited than that applied by the other members of the Court, but all concede that the power is discretionary. Speaking for myself I prefer the formulation adopted by Denning L.J., and it is sufficient for present purposes to adopt the narrower approach.

Here there is no doubt that the plaintiff is entitled to salvage. The only issue is as to the quantum which should be awarded. One of the advantages of admiralty proceedings in rem is that the judgment may be enforced against the vessel itself either pursuant to a maritime lien or because the vessel has been arrested and is in the custody of the court. In those circumstances the order of the court can include a decree that the vessel be appraised and sold to satisfy the judgment.

In my view the defendant's contempt here is impeding the course of justice because whilst the vessel remains out of the jurisdiction the court is not able to make an appropriate order enforcing a judgment for salvage. That is the direct result of the very act constituting the contempt.

It follows, in my view, that no order should be made setting aside the default judgment of 4th July 1990 on the ground that it was irregularly obtained unless and until the "Classique" is surrendered into the custody of the Admiralty Marshall of the Solomon Islands. In the meantime that judgment should stand as a final judgment of the Court and be enforceable as such.

If and when the contempt is purged then it follows from the foregoing reasons that the default judgment should be set aside and the plaintiff should be entitled to enter interlocutory judgment for salvage to be assessed. Once the proper quantum of salvage is assessed then formal judgment can be given including an order for the appraisal and sale of the "Classique" to satisfy that judgment.

In the circumstances I would make an order along the lines of that made by the Court of Appeal in Hadkinson at 294.

It appearing that the appellant is in continuing contempt of court by retaining the vessel "Classique" outside the jurisdiction of the court, Let the appeal stand over generally with liberty to the appellant to apply to restore it to the list after the vessel "Classique" has been returned within the jurisdiction.

In the circumstances the appellant should pay the respondent's costs of and incidental to the appeal to date to be taxed.

WILLIAMS J.A.
28/6/93