Allison v Medlin [1996] SBCA 3; CA-CAC 7 of 1996 (15 April 1996)

IN THE SOLOMON ISLANDS COURT OF APPEAL
Civil Appeal No. 7 of 1996

LESLIE ALLISON

V

MONIQUE MEDLIN

Kapi A/P. McPherson JA, Casey JA

Date and Place of hearing: 10 December 1996
Date of delivery of judgment: 15 April 1996, Honiara

Kapi A/President.

This is an appeal against a ruling by the High Court (Palmer J.) that:

(1) the summons and the affidavit filed in support of striking out the Defence and Counterclaim were effectively served on the appellant.

(2) the Defence filed· by the appellant was frivolous and vexatious.

(3) the Counterclaim filed by the appellant did not disclose a reasonable cause of action.

The background to this ruling may be summarised as follows. In about April 1989 the appellant and the respondent commenced living together in a defacto relationship.

On 5 June 1989 they jointly opened a bank account with Westpac Banking Group Ltd in Singapore. For easy reference I will refer to this as the US Dollar Account. It is alleged that each of the parties separately deposited money in the account. It is not necessary to set out the details of the deposits by each of the parties for the purposes of the appeal before us. They deposited a total of US$25,000.00.

In or about August 1989 the parties opened another joint account with Westpac in Singapore. I will refer to this as the Australian Dollar Account. It is alleged that each of the parties separately deposited various amounts to this account. They deposited a total of AUS$155,838.64.

Each of the parties subsequently made further deposits to the Australian Dollar Account (a total of AUS$114,01l.81).

The total deposits in the Australian Dollar account was AUS $269,395.45.

It is alleged that it was the intention of the parties at all times that these joint accounts would be maintained whilst they lived together in the defacto relationship. It was further alleged that the parties agreed that in the event that they cease to live together, the accounts would be divided in the proportions in which monies were deposited; to the accounts by each of the parties.

The parties stopped living, together on 8 August 1991.
It is alleged that subsequent to the separation, the appellant closed the two accounts and opened up two other accounts solely under his name in Singapore in breach of the said agreement.

On 10 September 1992 advocate for the respondent, Mr. Kama filed a writ of summons against the appellant in which she claims that the appellant holds her share of the money in trust. In the statement of claim the respondent claims (1) 18.6% of the balance in the Australian Dollar Account together with interest (2) an account to be taken of the Australian Dollar Account.

The writ was served on the appellant and there is no dispute about that.

The appellant personally filed Memorandum of Appearance on 28 September 1992 giving his address as c/o Forum Fisheries Agency, Honiara, Solomon Islands.

The appellant then subsequently instructed Mr. Andrew Nori as advocate who filed Memorandum of Defence and a Counter Claim on 22 October 1992. Subsequently the advocate filed an Amended Defence on 8 November 1992 in response to an Amended Statement of Claim by the respondent.

The respondent subsequently changed advocate and instructed Mr. Andrew Radclyffe.

Mr. Radclyffe filed summons dated 1 August 1994 to strike out Defence and Counterclaim filed by the appellant under 0 27 r 4 of the High Court (Civil Procedure) Rules, 1964 (as amended) (hereinafter referred to as “the Rules”).

Palmer J. heard the summons on 31 August 1994. There is no dispute that Mr. Nori was still on the record as advocate for the appellant at the time of service. The documents were served at Mr. Nori’s office in the Ministry of Finance by·delivering it to a person who was believed to be Mr. Nori’s secretary. Palmer J. was satisfied that there was proper service.

Palmer J. proceeded with the summons and granted the orders in favour of the respondent without publishing formal reasons for decision. The nature of the ruling can be seen from the terms of the formal orders entered on 19 September 1994:

“ UPON hearing counsel for the Plaintiff and upon reading the affidavits of Andrew Radclyffe filed on the 1 August 1994 and of the Plaintiff filed on the 23rd August 1994 IT IS ORDERED as follows:

1. The Defence of the Defendant filed on 22nd October 1992 be struck out on the grounds that it is frivolous and vexatious.

2. The Counter Claim of the Defendant filed on 22nd October 1992 be struck out on the grounds that it discloses no cause of action and is frivolous and vexatious;

3. The Defence of the Defendant filed on the 19th November 1992 be struck out on the grounds that it is frivolous and vexatious.

4. Judgment is entered for the Plaintiff against the Defendant as follows:-

(a) It is declared that the Plaintiff holds an 18.6% share of the joint bank account being Westpac Banking Corporation, (AUD) 1930 as at July 1991 and;

(b) An account shall be taken of the said Westpac Banking Cooperation account;

(c) It is ordered that there be paid to the Plaintiff such sum together with interest at the appropriate rate as is found to be due to her on the account being taken.

Costs to the Plaintiff.”

The appellant has appealed against this ruling. This appeal raises three basic issues. First, whether or not there was effective service on the appellant. Second, whether the Defence filed on behalf of the appellant is frivolous and vexatious. Third, whether the Counterclaim filed on behalf of the appellant discloses a reasonable cause of action.

Was There Effective Service on the Appellant?

The question of service of a summons is regulated by the Rules, 0 9 r 14:

“14. (1) Service of a notice, summons, order or other document, shall wherever it is practical, be effected personally on the person to be served and service thereof shall be completely effected by the delivery of a duplicate or attested copy of any such notice, summons, order or document without the exhibition of any original:

Provided that where service as aforesaid cannot be affected the provisions of Rule 2 of this Order as to substituted service shall, mutatis mutandis, apply.

(2) Service on the advocate or recognised agent of the person to be served shall be deemed to be effective service on such person.”

In the present case there is no dispute that the summons was not served personally on the appellant in accordance with 0 9 r 14 (1). At the time of service the appellant was not in the Solomon Islands. The respondent did not obtain an order from the Court for substituted service in accordance with the proviso in 0 9 r 14 (1) or for service outside the jurisdiction under 011.

However, the respondent purported to serve the advocate or recognised agent of the appellant under 0 9 r 14 (2) of the Rules. The question we have to determine is whether there has been effective service on the advocate or recognised agent. Such service would be deemed to be effective service on the appellant.

First, we have to determine whether the respondent has served the summons and the affidavit “on the advocate or the recognised agent” of the appellant. 0 9 r 14 (1) requires that such service should be “effected personally”.

Before I determine this, I should consider a preliminary argument Mr. Nori advanced with regard to service, namely, that at the time the documents were delivered at his office, he was no longer in practice as an advocate. Instead he was a Minister of the Crown in the Solomon Islands Government. He argued that for the relevant period, he did not have a “Current Practising Certificate” pursuant to Pacific (Barristers and Solicitors) Order in Council 1913 (as amended). However, we do not have to consider and determine this issue. Even if Mr. Nori ceased to be advocate of the appellant as suggested, he is obliged to file change of advocate in accordance with 0 7 of the Rules. Until this document is filed, he shall be considered the advocate of the appellant until completion of the matter or cause (0 7 r 2 (1)). Mr. Nori did not file such a document in this matter.

On the other hand if he was not an advocate and unable to practise as one, I am satisfied that he was the recognised agent of the appellant. I would infer this from the same fact that he still appears on record as advocate of the appellant.

I come back to the question, whether there was personal service on Mr. Nori as required by 0 9 r 14 (1)? In this regard the affidavit of Steve Blundy, a clerk employed by Andrew Radclyffe is relevant. He deposed that on 15 August 1994 he delivered the summons and the affidavit to an employee, possibly Mr. Nori’s secretary at the office of the Minister for Finance.

In my view this cannot be personal service within the meaning of the Rules. Personal service must be effected on the person in the manner set out in the Rules. There is no suggestion that Mr. Nori was present with the person who took delivery of the documents on 19 August 1994.

If Mr. Nori was not served personally, the question then arises whether the Rules provide for other means of service? The proviso to a 9 r 14 (1) provides for substituted service where it is not practical to effect personal service. There is no evidence to indicate where Mr. Nori was at the time the summons and the affidavit were delivered to his office. It can be inferred from this that he was not available and therefore it was not practical to serve the documents personally. The proviso provides that a party who has such practical difficulty may apply to the Court to get an order on substituted service. No such application was made by the respondent.

0 l0 r 1 provides that a Court may order substituted service by delivering the documents to some adult inmate at the usual or last known place of abode or business of the person to be served.

What the respondent should have done in the circumstances of this case was apply to the Court for substituted service under the proviso to 0 9 r 14 (1) and 0 10 of the Rules. If the respondent had obtained an order in accordance with 0 10 (1) (a), the delivery of the documents by Steve Blundy to Mr. Nori’s secretary would have been effective service on Mr. Nori.

Did Mr. Nori in fact received the documents before the hearing of the summons on 31 August 1994? This is a question of fact. On matters of fact this Court may determine any such matter on the basis of evidence in the Court below subject to any further evidence the Court may wish to receive under rule 22 of the Court of Appeal Rules 1983 (as amended). No such application was made before us to receive further evidence on this point.

As I have pointed out before the only evidence before the trial judge on this point was the affidavit of service. There is no evidence in the affidavit that Mr. Nori did receive the documents.

Can we infer from the facts before the trial judge that Mr. Nori must have received the documents? I must say I have had some difficulty in determining this issue. This difficulty arises from two factors. The first is that the trial judge did not give any reasons for coming to the conclusion that there was effective service. The second is that the affidavit of service does not provide sufficient primary facts relevant to the issue of whether Mr. Nori received the documents during the relevant period.

I have concluded that there are insufficient primary facts from which I can make a finding that Mr. Nori did in fact receive the documents between 19 and 31 August 1994. I have reached this conclusion on the following basis. First, it is not clear from the affidavit of service if the person who received the documents was Mr. Nori’s secretary. Second, there is no evidence that Mr. Nori came to his office on 19 August or on any other day before 31 August 1994.

Mr. Blundy needed to enquire of two factors (1) was the person receiving the documents Mr. Nori’s secretary (2) Was Mr. Nori available in his office at the time of delivery of the documents. These are the relevant primary facts upon which a Court may make findings on whether Mr. Nori received the documents.

If a document is delivered at an office in the circumstances of this case without more, I do not think that it can necessarily be inferred that the documents will reach the person on the relevant date. It cannot be assumed that a person may go to his office every working day of the year. We know from our experience as judges that we are not in our offices for every working day of the year. There are many reasons why a person may not be in his office for a day or days at a time. A Minister of the Crown is no exception and he may be away from his office for a variety of reasons.

In the result I find that there was no effective service on the appellant. I would allow this ground of appeal.

Was the Defence Frivolous and Vexatious?

In the event that I am wrong on the issue of service, I will consider the other two issues. The second issue raised by this appeal is whether the trial judge erred in striking out the Defence on the grounds that it is frivolous and vexatious.

Basically the defence raised by the appellant is that there was a subsequent agreement between the parties which stipulate that the balance in the two accounts would be shared as set out in paragraph 2 (c) of the Defence. The Defence alleges that the balance in the accounts were in fact fairly distributed between the parties. These are matters of fact and they raise serious questions to be tried. In my view the Defence raised is not frivolous or vexatious.

Incidentally, when the question of extension of time to appeal out of time came before Palmer J and when he considered the matter again, he held differently from his earlier ruling and found that the defence raised is not frivolous and vexatious (see page 96 of the record). With respect the trial judge was right the second time. I would allow this ground of appeal.

Is there a Reasonable Cause of Action in the Counterclaim?

This ground of appeal can be disposed of very briefly. Counsel for the appellant has submitted that this is a claim based on some form of an agreement. With respect the Counterclaim does not plead the essential facts which would disclose such a cause of action. The Counterclaim is badly drafted in its present form and in my view it does not disclose a cause of action in law. It is also clear that the appellant did not further plead the Counterclaim in the subsequent Defence filed on 8 November 1992. The trial judge did not make any error in dismissing the Counterclaim. I would dismiss this ground of appeal.

Even though I dissented on the question of effective service, I agree with the orders proposed by the majority.

Sir Mari Kapi
A/President

............................................................................................

McPherson & Casey JJ.A.

In Evans v. Bartlam [1937] A.C. 473, at 480, Lord Atkin said that “unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure”. His Lordship was speaking there of a judgment entered in default of appearance. Here the judgment was entered against the defendant in this action after his amended defence was struck out on the hearing (on which the defendant did not appear) of an application by the plaintiff on the ground that the defence was frivolous and vexatious.

For the reasons given by Kapi A.P., the amended defence ought not to have been struck out. The pleading in question can scarcely be considered a model of the pleader’s art; but it went at least as far as to allege and raise triable issues that were capable, if established, of affording an answer of fact or law to the plaintiff’s claim. So much appears to have been candidly acknowledged by Palmer J., when he granted the defendant leave to appeal against his own earlier judgment in this matter. The jurisdiction summarily to terminate an action “is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion”. Those remarks of Barwick C.J. in General Steel Industries Inc. v. Commissioner for Railways (N.S. W) [1964] HCA 69; (1964) 112 C.L.R. 125, at 129, were made in reference to striking out an action as frivolous and vexatious; but in principle they apply with equal force to defences as well.

The defendant is therefore entitled to have the judgment against him set aside as matter of right. This conclusion makes it, in our respectful opinion, unnecessary to consider whether or not the plaintiff’s summons to strike out the defence was effectively served. At most that matter can go only to the costs of the appeal and the costs thrown away in the course of the now abortive proceedings in the court below. As to that, the case is one in which both parties to some extent bear responsibility for the state of affairs that has developed. In the circumstances, a proper exercise of discretion is to order that the costs of both parties of and incidental to this appeal, and also of the proceedings below beginning with the time of issuing the summons to strike out the defence, should be costs in the cause. It is a matter for some regret that so much has now been expended all costs and to so little effect.

We agree with what the Acting President has said in his reasons on the subject of the counterclaim. In its present form it discloses no cause of action. As to it, the appeal should be dismissed; but the defendant should have leave to deliver an amended or further amended counterclaim within 28 days.

We would therefore make the following orders:

(1) Allow the appeal and set aside the judgment entered against the defendant on 19 September 1994.

(2) Set aside the order on the date striking out the defence of the Defendant filed on 19 November 1992.

(3)Dismiss the appeal against the order on 19 September 1994 striking out the counterclaim.

(4) Grant leave to the defendant within 28 days to file and serve a further amended counterclaim.

(5) Order that the costs of both parties of and incidental to the appeal, and of the proceedings below beginning with the issue of the summons dated 1 August 1994, be costs in the cause.

Mr. Justice McPherson
Judge of Appeal

Sir Maurice Casey
Judge of Appeal