Slater and Gordon v Ross Mining (Solomon Islands) Ltd [2000] SBCA 2; CA-CAC 7 of 1999 (6 July 2000)

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NATURE OF JURISDICTION:	Appeal from the judgment of the High Court of Solomon Islands
COURT FILE NO.	Civil Appeal Case No. 007 of 1999 (an appeal from Civil Case No. 230 of 1988)
DATE OF HEARING:	23rd November 1999, Honiara
DATE OF JUDGMENT:	6th July 2000
THE COURT:	Mason P, McPherson JA, Los JA
	SLATER AND GORDON (“A FIRM”) First Appellant DENNIS WALTER REINHARDT Second Appellant METHYR HOLDINGS PTY LTD Third Appellant V ROSS MINING (SOLOMON ISLANDS) LIMITED First Respondent GOLD RIDGE MINING LIMITED Second Respondent ROSS MINING LIMITED Third Respondent
ADVOCATES Appellant Respondent
KEY WORDS	Service of the writ outside the jurisdiction – sufficiency of affidavit in support of application for leave – conditional appearance – necessity for leave to life – consequence of failing to set aside service within time limited for filing appearance – default judgment
EX TERPORE/RESERVED	Reserved
RESERVED/DISMISSED:	Dismissed
PAGES:

This application for leave to appeal is brought against orders made by Muria CJ on 10th June 1999 in an action brought by the respondents against the appellants in the High Court. The action arises out of the alleged activities of the first appellant, an Australian law firm, in conjunction with the other appellants, the second appellant being an individual resident in Queensland and the third appellant being a corporation whose registered office is in Queensland. These activities, it is claimed, amount to conspiracy to injure the respondents by unlawful means, conspiracy with the sole or predominant purpose of injuring the respondents, abuse of process in commencing and maintaining legal proceedings, champerty and maintenance, resulting in loss or damage to the respondents. The activities, so the respondents allege, have been undertaken with the purpose, amongst other things, of placing improper pressure on the respondents to negotiate on various matters and to abandon their Gold Ridge Mining Project near Honiara.

The action was commenced on 17 December 1998 by writ and statement of claim. On 18th December 1998 the Registrar granted leave to serve the writ on the respondents out of the jurisdiction and ordered that the time for entering an appearance to the writ should be 28 days for the date of service. The Registrar, in granting leave to serve out of the jurisdiction, had before him an affidavit by Mr. Andrew Radclyffe, solicitor for the respondents, sworn on 17 December 1998. The sufficiency of the affidavit to ground the grant of leave is a central issue in the appeal.

On 20 January 1999 conditional appearances were filed on behalf of the appellants without any prior grant of leave. On 3 February 1999 the respondents filed a notice of motion seeking an order that the conditional appearances be set aside as an abuse of process and, alternatively, an order that the appellants file and serve an objection to jurisdiction and/or the regularity of process. The notice of motion was subsequently amended to seek additional relief in the form of entry of judgment in the action with an order that damages be assessed.

On 12th February 1999 the appellants filed a summons in which the first and second appellants sought the following orders:

1. That the High Court of the Solomon Islands is not the appropriate forum for the proceedings.

2. That the proceedings be dismissed on the ground that the causes of action set out in the Statement of Claim do not fall within Order 11 r. 1 of the High Court Rules.

3. That the proceedings be dismissed pursuant to Order 27 r. 4 of the High Court Rules.

Although Order 2 as sought in the summons does not seek an order that service of the writ out of the jurisdiction be set aside, it was treated as raising the correctness of such service and of the propriety of the antecedent grant of leave by the Registrar. Service of the writ out of the jurisdiction had been affected on the appellants on 22 and 23 December 1998. Order 3 sought an exercise by the Court of its power under Order 27 r. 4 to strike out a pleading or take other action on the ground that the pleading discloses no reasonable cause of action or that the action is frivolous or vexatious. The appellants did not advance any argument to support Orders 1 and 3. In the result, the appellants advanced two grounds only, before Muria CJ, namely that the case did not fall within Order 11 r. 1 and that Mr. Radclyffe’s affidavit did not comply with Order 11 r. 3.
The judgment of Muria CJ

The judgment of Muria CJ dealt first, with the appellants’ summons and, secondly, with the respondent’s motion. The appellants’ case was that the cause of action pleaded did not arise within the jurisdiction and that service out of the jurisdiction or the grant of leave should be set aside. Alternatively, the appellants submitted that Mr. Radclyffe’s affidavit was insufficient to support the grant of leave.
The Chief Justice, after reviewing the statement of claim, concluded that the causes of action pleaded were committed within the jurisdiction. Accordingly, it was a case in which the Court had jurisdiction under Order 11 r. 1 (f) to grant leave to serve outside the jurisdiction. The Chief Justice found that Mr. Radclyffe’s affidavit, the contents of which we shall discuss later, was sufficient.
The Chief Justice, after noting that no action was taken by the appellants to set aside the proceedings from the time of service (22 and 23 December 1999) to 12 February 1999, being a period outside the 28 days limited for the filing of an appearance in the order made on 18 December, held that the conditional appearances stood as unconditional appearances, because they were entered without leave. Accordingly, there was no default in the filing of appearance. There was, however, default in the filing of defences. A defence must be filed within 14 days of the time limited for appearance or from the delivery of the statement of claim, whichever is the later (Order 23 r. 6). This default enabled the respondents to set down the action on motion for judgment and empowered the Court to give such judgment as upon the statement of claim the Court should consider the respondents to be entitled (Order 29 r. 8). The amendment to the respondents’ motion was intended to take advantage of these provisions in the rules.

In these circumstances, the Chief Justice held that the respondents “are entitled to judgment in default of pleading”. He continued

There is no counter-argument to say that the plaintiffs would not be entitled to judgment ... The defendants only sought to explain away their failure to file defences.

The Chief Justice noted that the delay on the part of the appellants’ solicitors was due to (a) the closure of Slater & Gordon’s office from 24December 1998 to 11January 1999, (b) the closure of the High Court for Christmas vacation from 11December 1998 to 18 January, and (c) the delay in briefing counsel due to his absence overseas and the absence on leave and the illness of Ms Foley (who had the conduct of the matter in Slater & Gordon’s office). However, his Lordship did not regard the appellants’ evidence as a satisfactory explanation of their delay. He considered that the appellants’ solicitors were aware that the High Court Registry in Honiara was open for two hours each week day during the Court vacation and that Slater & Gordon’s resources were large enough to enable it to deal with matters on behalf of its clients in such manner as to comply with the rules. His Lordship gave judgment for the respondents in default of pleading with damages to be assessed.

At no time, whether before or after the Chief Justice delivered his judgment on 10 June 1999, have the appellants presented a defence to the action or indicated that, in the event that they failed on the jurisdictional challenge, they would file a defence on the merits. Evidently they were prepared to run the risk that default judgment might be entered against them. The amended form of the notice of motion should have clearly alerted them and their solicitors to the form of judgment which was being sought against them.

Although the Chief Justice referred to a “search for the most appropriate Court to try” the action, he did not consider the issue of forum non conveniens or the factors relevant to it. That was because the appellants did not challenge service outside the jurisdiction on that ground.
The case pleaded in the statement of claim

Paragraph 8 of the statement of claim alleges that in or about December 1996 the appellants unlawfully conspired to injure the respondents by unlawful means by

(a) procuring various citizens of the Solomon Islands, amongst them David Thuguvoda (“Thuguvoda”), Willie Roni (“Roni”) and Billy Gatu (“Gatu”), to commence and to prosecute various proceedings in the High Court against, inter alia, the first two respondents in a manner contrary to law, being for a collateral and improper purpose, namely:

(1) for the placing of improper pressure on the respondents and each of them to negotiate on various matters, including:

(i) to obtain the electricity supply source for the Gold Ridge Mining Project from the Lungga Hydro Power Consortium (LHC) in which the third appellant has an interest; and/or

(ii) to obtain compensation additional to that to which the citizens mentioned were entitled; and/or

(b) variously funding the High Court proceedings and agreeing to share in their fruits in a manner contrary to law, including:

(1) by providing financial and other support to the plaintiffs in the proceedings in which the appellants or any of them did not have a genuine and legitimate interest;

(2) by the first appellant entering into agreements with plaintiffs in the proceedings other than the Gatu proceedings whereby the plaintiffs purported to assign a right to the fruits of the proceedings to the first appellant in consideration for financial and other support;

(c) making and/or procuring the making of, by various means, including procuring various citizens of the Solomon Islands to make false and/or defamatory statements to the Solomon Islands and Australian media, the Australian Stock Exchange, the shareholders of Ross Mining NL, the financiers of the respondents and others, thereby placing pressure on the respondents and each of them:

(ii) to obtain compensation additional to that to which the citizens mentioned were at all times legitimately entitled; and/or

(d) attempting to bring about a situation in which the respondent were forced to obtain their electricity for the Project from LHC contrary to the right granted to the second respondent by the Solomon Islands Electricity Authority according to law; and

(e) attempting to bring about a situation in which the second respondent abandoned its mining operations in the Solomon islands, thereby damaging the interests of the respondents and each of them by undertaking the unlawful acts referred to in par. 10 of the statement of claim.

The statement of claim gives particulars of the matters alleged in pars 8(a), (b), (c), (d) and (e). It is unnecessary to refer to them except to mention that the particulars of par. (c) refer to the making of statements of such a kind as to damage financier and investor confidence in the Project and the respondents’ ability to manage the Project successfully. The statements include a letter written to the British High Commissioner in the Solomon Islands and the Commonwealth Development Corporation (CDC), the financier of the Project, purporting to inform them that CDC should not provide project finance, and falsely stating that the respondents lacked the right to land machinery for the Project without further negotiation. Another letter to shareholders of the third respondent attributed to one or more of the respondents’ deceit (in obtaining a Compensation Agreement). The Compensation Agreement provided for landowners in the Project area to vacate their land in return for compensation. Another letter to the Australian Stock Exchange alleges that the third appellant misled its shareholders. Yet another letter to the Research Director of a stockbroking firm enclosed the letter to the High Commissioner and CDC, falsely alleged that the respondents did not have a firm contractual basis for the Project and falsely compared the situation with Bougainville. The particulars also refer to “press conferences and interviews arranged and/or funded” by the appellants, including conferences and interviews on 16 and 17 June and 21 July 1997 and to a meeting on or about 18 June 1997 with a merchant banker, attended by plaintiffs in the proceedings against the respondents’ and a representative of the first appellant.

Paragraph 9 alleges that each of the means pleaded in paragraph 8 were engaged in by the appellants in concert and/or with the mutual consent and approval or knowledge of each of them and knowing that or in circumstances in which each of them ought reasonably to have known that the carrying out of those means would cause damage to the interests of the respondents and each of them (“the Conspiracy”).

Paragraph 10 pleads a series of overt acts done in pursuance of the Conspiracy. The overt acts pleaded specify acts, of which particulars were given under par. 8, including:

2. the funding of return trips (including accommodation and living expenses) from Solomon Islands to Australia by Thuguvoda and Gatu as consideration for each of them promising to commence and maintain proceedings against the respondents;

3. the first appellant wrongly procured citizens of the Solomon Islands by various inducements, including travel, food and financial assistance, to retain the first appellant for the purposes of commencing proceedings against the respondents in return for the first appellant funding the litigation and being entitled to a share of the proceeds;

4. the first appellant wrongly commenced proceedings in the High Court against the respondents in the name of Nelson Tave without his authority or retainer;

5. the second appellant and George (of the first appellant) procured Roni to sign a letter to shareholders of the third respondent containing misleading or false allegations;

6. Mr. Styant Brown on behalf of the first appellant approached Michael Rafter at a meeting in the first appellant’s office in Melbourne for the purpose of inducing the Government of Guadalcanal Province to become a plaintiff in the proceedings against the respondents with the unlawful intention of increasing pressure on them and each of them to negotiate on various matters, including the matters mentioned in par. 8 (a)(1) and (2) of the statement of claim; and

7. the first appellant purchased a boom gate and procured Thuguvoda and/or Maeke to make arrangements for its installation on a declared public road for the purpose of unlawfully hindering the operation of the Project and in fact hindering it between 26 June and 30 June 1997.

Paragraph 12 pleads that each of the acts alleged in pars 8 and 10 was done by the appellants as joint tortfeasors. Paragraph 13 alleges that the respondents suffered consequential expense, loss and damage.

Paragraphs 14-16 plead a case of conspiracy with the sole or predominant purpose of injuring the business of the respondents and the Project. The overt acts alleged include those pleaded earlier as well as acts identified in particulars of pars 8 and 10. In addition, the following overt acts are pleaded:

(b) writing on diverse occasions between January 1997 to date to the third respondent’s shareholders, investors, the Australian Stock Exchange and the media in Australia and the Solomon Islands warning against investing in the third respondent; and

(c) from April 1997 orchestrating a media campaign against the respondents and each of them in the Solomon Islands and Australia.

Paragraphs 17-19 plead a case of abuse of process based on the proceedings and each of them, the allegation being that they were brought predominantly for a collateral and improper purpose, outside the ambit of the claims “brought thereunder”.

Paragraphs 20-23 plead a case of champerty and maintenance. This case is based on the claim that the appellants have maintained the proceedings in a manner contrary to law and on the claim that the conduct is champertous.

The relief claimed includes damages, an injunction in relation to the conspiracies, a declaration that certain proceedings brought against the first two respondents and known as “the Saki proceedings” are an abuse of process and/or champertous.

One of the deficiencies in the particulars given in the statement of claim is that they do not identify the location of conferences, interviews and of meetings (other than the meeting in the Melbourne office of the first appellant referred to in par. 10(f) of the statement of claim). Nor do the particulars indicate the place from which letters containing statements were sent or the place where a press release (referred to in the particulars) issued. In one or more instances it would seem that a letter was sent to an institution (the Australian Stock Exchange) or shareholders in Australia. In some cases the destination of the letter is not clearly stated.

Mr. Radclyffe’s affidavit stated that the appellants are residents out of the jurisdiction and are not, to the best of his knowledge, British subjects. It stated the first appellant’s office address in Melbourne, the second appellant’s Queensland place of residence and the third appellant’s registered office in Queensland. The affidavit contained only two paragraphs directed specifically to the issues in this appeal. The paragraphs were as follows:

3. In my belief the Plaintiffs have a good cause of action against the Defendants.

7. The ground for the application for leave to serve out of the jurisdiction [is] that the Statement of claim alleges torts committed by the said Defendants within the jurisdiction.

The affidavit in support of the application for leave is perfunctory and deficient. It fails to identify any error in the judgment of the Chief Justice, let alone identify the grounds which are set forth in the notice of appeal and have been supported by argument. The affidavit simply puts the case for appeal on the basis that the appellants will suffer injustice if the judgment stands and they cannot appeal.

The grounds for leave to appeal, which were filed, contain a number of errors. They state that Mr. Reinhardt and Ms Bath were unable to enter the country for the purpose of defending the proceedings. The grounds fail to disclose that under the Solomon Islands immigration law, there was discretion to permit them, although they were prohibited immigrants, to enter the country. The grounds incorrectly identify 3 February 1999 as the date when the appellants issued their summons contesting jurisdiction. In fact the summons did not issue until 12 February. The grounds contain the statement that the appellants took every step available to them to have the question of jurisdiction determined. That statement leaves out of account their failure to obtain leave to file the conditional appearances and their delay until 12 February (almost 3 weeks after the time limited by the Registrar for filing appearances) before filing the summons to contest jurisdiction.

Notwithstanding these serious shortcomings in the grounds, we consider that the appellants have a sufficiently arguable case involving some questions of some practical importance to warrant the grant of leave to appeal.

The appellants challenge the orders made by the Chief Justice on the following grounds:

1. the insufficiency of Mr. Radclyffe’s affidavit to support the grant of leave to serve out of the jurisdiction;

2. the absence of evidence to show that the torts were committed within the jurisdiction;

3. the absence of evidence to show that it was a proper case for service out of the jurisdiction

Because, as will appear, we reach the conclusion that, in the circumstances which have occurred, the appellants’ conditional appearances have become unconditional and constitute an acknowledgment of the jurisdiction, it is unnecessary for us to deal with this question. However, as the questions may have importance for future cases, we shall deal with them.

Service out of the jurisdiction of a writ of summons may be allowed by the Court wherever

Every application to serve such writ ... on a defendant out of the jurisdiction shall be supported by affidavit or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or may properly be found, and whether such defendant is a British subject or not, and the grounds upon which the application is made; and no such leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this order.

These provisions were taken from the English Rules scheduled to the Supreme Court of Judicature Act 1873 as amended in 1883 following the decision of the English Court of Appeal in Great Australian Gold Mining Co. v Martin (1877) 5 Ch 0 1, esp. at 16-18, 18-19. The grounds upon which the application is made, required to be stated in the affidavit, have been understood to embrace not merely the head of jurisdiction relied upon but also the cause of action invoked by the plaintiff as falling within that head of jurisdiction (Seaconsar Far East Ltd v Bank Markazi [1993] 4 All ER 456 at 462 per Lord Goff of Chieveley). Lord Goff went on, however, to observe (at 462) that the requirement that the deponent had to state his belief that the plaintiff had a good cause of action would not necessarily be enough to establish for this purpose the existence of the relevant cause of action, because the court still had to decide whether it would exercise its discretion to grant leave. For that purpose the court had to consider whether the evidence showed that the cause of action was sufficiently firmly established (see Societe Generate de Paris v Dreyfus Brothers [1885] UKLawRpCh 106; (1885) 29 Ch D 239; revsd [1887] UKLawRpCh 235; (1887) 37 Ch D 215. In this respect, the concluding words of r. 3 have been regarded as going only to the making out of the jurisdictional grounds set out in r. 1, not to the exercise of the discretion to make an order. It is for the plaintiff to make out a good arguable case that brings the matter within r. 1 (Seaconsar at 464).

Once the jurisdictional ground is made out, according to that standard, the court must consider whether there is a serious issue to be tried so as to enable the discretion to grant or refuse leave to be exercised. In exercising the discretion, the court will take account of forum non conveniens considerations as well as the strength of the cause of action. In Seaconsar (at 463) the House of Lords held that the standard of proof in respect of the cause of action can broadly be stated to be whether, on the affidavit evidence, there is a serious question to be tried. The position was succinctly stated (at 467) by Lord Goff in these terms:

... a judge faced with a question of leave to serve proceedings out of the jurisdiction under Ord 11 will in practice have to consider both (1) whether jurisdiction has been sufficiently established, on the criterion of the good arguable case ..., and (2) whether there is a serious issue to be tried, so as to enable him to exercise his discretion to grant leave, with particular reference to the issue of forum non conveniens.

It has been consistently said that it is a serious question whether the jurisdiction under Ord. 11 and like provisions should be exercised to put a person outside the jurisdiction to the inconvenience and annoyance of being brought to contest his rights in the country exercising jurisdiction (the Dreyfus Case (1885) 25 Ch D 239 at 242-243 per Pearson J). But this factor is satisfied by the application of the forum conveniens principle established by Spiliada Maritime Corporation v Consulex Ltd [1986] UKHL 10; [1987] AC 460 at 481-482. The insistence on the plaintiff establishing that the court in which the proceedings have been commenced is the most appropriate forum stems from the need to take care before exercising jurisdiction against someone who is a stranger to the jurisdiction (Seaconsar at 467).

In the event, it was for the respondents on their application for leave to serve out of the jurisdiction to establish (1) jurisdiction under r. 1 (f) on the criterion of a good arguable case; and (2) that there was a serious issue to be tried. If these matters were established, the question of the exercise of the discretion to grant leave arose, with particular reference to forum conveniens.

It is in this context that the sufficiency of the affidavit evidence is to be considered. On this question, we have the authoritative statement of Lord Davey in Badische Anilin und Soda Fabrik v Chemische Fabrik Vormals Sandoz ((1904) 90 LT 733) where, after referring to the requirement that the application is to be supported by evidence stating that in the belief of the deponent the plaintiff has a good cause of action and the-concluding words of the then English r. 3 (our r. 4), his Lordship said (at 735):

This does not ... mean that a mere statement by any deponent who is put forward to make the affidavit that he believes that there is a good cause of action is sufficient ... But I think that the application should be supported by an affidavit stating facts which, if proved, would be a sufficient foundation for the alleged cause of action, and, as a rule, the affidavit should be by some person acquainted with the facts, or, at any rate, should specify the sources or persons from whom the deponent derives his information.

This passage was quoted by Lord Goff with evident approval in Seaconsar (at 462).

The words “grounds” in r. 3 is intended to cover the alleged facts which bring the case within r. 1 as well as any additional facts which are relevant to the exercise of the discretion. As Lord Radcliffe pointed out in Vitkovice Horni & Hutni Tezirstvo v Korner [1951] AC 869 at 870,

This requirement by itself seems to me to show that the judge is expected to exercise some more critical function than that of merely accepting the statement on affidavit that the plaintiff is believed to have had a good cause of action. Indeed, that belief would be quite consistent with the absence of any of the conditions necessary to justify service out of the jurisdiction.

The two relevant paragraphs in Mr. Radclyffe’s affidavit are directed to the existence of the cause of action (par. 3) and the grounds for the application (par. 7). It is convenient to consider par. 3 in the first instance, although it is not directed to the jurisdictional question. Paragraph 3 attested merely to the deponent’s belief that the respondents had a good cause of action without linking it to the cause of action pleaded in the statement of claim. The paragraph did not purport to speak to the deponent’s knowledge; nor did it identify either the information or the source of the information on which the belief was based. In these respects the affidavit did not comply with the general rule that an affidavit should depose to matters within the deponent’s knowledge or, where appropriate, to matters based on information and belief.

Paragraph 7 is extremely limited in what it says. It does no more than identify the allegations in the statement of claim of torts committed within the jurisdiction as the basis of bringing the case within r.1. The paragraph does not depose to facts which bring the case within r. 1 (f). Nor does the paragraph deal with any matters which would be relevant to the exercise of the discretion to make or to refuse to make an order.

These deficiencies go to the substance of the matter. They are not mere irregularities in complying with the rules which would ordinarily be overlooked (cf. Collins v North British and Mercantile Insurance Company [1894] UKLawRpCh 106; [1894] 3 Ch 228 at 234-235; Dickson v Law and Davidson [1895] 2 CR 62). Accordingly, there was an absence of material which could justify the Registrar arriving at the conclusion that there was a good arguable case bringing the matter within r. 1 (f). Even if one were to attribute evidentiary effect to Mr. Radclyffe’s belief, that belief would be consistent with the absence of any of the conditions necessary to justify service out of the jurisdiction.

Nor could the material before the Registrar justify the conclusion that there were serious issues to be tried. The material did not enable him to form a view as to how firmly establish the cause of action was. And, thirdly, it followed that the cause of action was not sufficiently firmly established to justify the making of an order as a sound exercise of discretion. In particular, there was no evidence directed to the aspect of forum conveniens.

Having regarded, however, to the conclusion we have reached with respect to the appellants’ appearances, the deficiencies in the affidavit evidence are no longer material.

Did the appellants' appearances or conduct in any other respect amount to a submission to. or acknowledgment of. the jurisdiction?

The Chief Justice considered that, under the High Court Rules, the filing of a conditional appearance required the leave of the Court. The Rules do not make express provision for leave to file a conditional appearance. Order 12 r. 17 (the counterpart of the old Order 12 r. 30 of the English Rules of Court) provides that a defendant may, without obtaining an order to enter or entering a conditional appearance, take out a summons or serve a notice of motion to set aside the service of a writ, or to discharge the order authorising such service. In England, the practice was to obtain an order granting leave to enter a conditional appearance before filing such an appearance. The purpose of granting leave ex parte was to prevent such an appearance being entered for the purpose of delay, and to limit a time on the expiration of which, if the defendant did not apply to the court to give effect to his objection, or applied and failed, the appearance should stand as unconditional, and the action proceed accordingly. See the discussion in Carmel Exporters (Sales) Ltd v Sea-Land Services Inc [1981] 1 WLR 1068 at 1071-1072 per Robert Goff J.

The appellants did not obtain an order granting leave to file conditional appearances, though that seems to have been the old practice in Victoria (the jurisdiction in which the first appellant practiced). Perhaps they considered that leave was not necessary as the Rules do not make specific provision for obtaining leave.

The question in these circumstances is: what effect should be given to the appearances? It would not be right to treat the appearances as unqualified appearances ab initio as it is clear that the appellants did not intend to submit to the jurisdiction of the Court. In our opinion, the Chief Justice was correct in regarding them as conditional appearances, despite the irregularity constituted by the absence of leave, and in attributing to them the legal consequences attaching to a conditional appearance regularly filed, at least while they remained on the file.

Speaking with reference to a conditional appearance filed pursuant to an order granting leave which fixed a time for filing an application to set aside service of the writ, Robert Goff J said in Carmel Exporters v Sea-Land Inc [1981] 1 WLR 1068 at 1072,

[O]n the expiration of the relevant time, if no application had been made by the defendant to set aside the proceedings, or he had made such an application and it had been dismissed, the appearance stood as unconditional and the plaintiff could proceed with the action. So, if a defendant wished to avoid submitting to the jurisdiction, his safer course was not to enter a conditional appearance, but to take the second course open to him, which was to apply before entering an appearance for an order setting aside the proceedings. This was of course the usual application made by a party outside the jurisdiction, served with proceedings by virtue of leave given under Ord. 11, if that party did not wish to submit to the jurisdiction.

What his Lordship said accords in principle with the “well-known and much criticised” decision of the Court of Appeal in Harris v Taylor [1915] 2 KB 580, to repeat the words of Roskill LJ in Henry v Geopresco International Ltd [1975] 2 All ER 702 at 708. However, the facts of that case are rather different from the present case.

Here, the first of the events identified by Robert Goff J as causing a conditional appearance to become unconditional has not taken place in this case. But it may have been otherwise had the appellants applied for leave to file conditional appearances in which event a time would have been fixed within which an application to set aside service should be made. The appellants cannot be in a better position by reason of their failure to obtain leave than they would have been in, had leave been granted. It would not be right to hold that they had an unlimited time within which to apply to set aside service of the writ without working any change in the conditional character of the appearances. In this respect, we agree with the Chief Justice that, on the expiration of the time limited for appearances, no application to set aside service of the writ having been made, the appearances became unconditional.
As such they constituted an acknowledgment of jurisdiction and therefore overcame any deficiency in the making of the order for service of the writ out of the jurisdiction.

The order sought in the appellants’ summons is declaratory in form. If the appellants had raised the forum non conveniens argument on an application made within time and had it succeeded, it would have resulted in an order setting aside service of the writ. Otherwise such an argument, if successful, results in an order for stay of the action. However, as the issue of forum non conveniens was not raised before the Chief Justice, it would not be right for us to consider it now.

We should mention that the statement of claim fails to identify a location for many of the acts pleaded in the statement of claim. Although that omission does not constitute a defect in pleading, the omission would have made it more difficult to resolve forum non conveniens issue.

On the other hand, the nature of the torts alleged and the acts which are said to constitute them, looking at the allegations in the statement of claim above, I do suggest a strong connection between the acts and this jurisdiction.

The jurisdiction in which the tort is committed is prima facie the natural forum for the determination of the dispute (see Cordoba Shipping Co. Ltd v National State Bank, Elizabeth, New Jersey, The Albaforth [1984] 2 Lloyd’s Reports 91 at 94-96 per Ackner and Goff LJ). Where acts are committed inside and outside the jurisdiction, the tort is committed in the place where in substance the cause of action arises (see Multinational Gas & Petrochemical Co. v Multinational Gas & Petrochemical Services Ltd [1983] 2 Ch 258 at 272,284. As Lord Pearson expressed it, in Distillers Co. (Bio-Chemicals) Ltd v Thompson [1971] 1 All ER 694 at 700,

“[t]he right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question: where in substance did this cause of action arise?”

The application of that test in the context of civil conspiracy may mean that the jurisdiction in which the tort is committed is the place where acts are done in furtherance of the conspiracy other than the place where the agreement giving rise to conspiracy is made, particularly when the acts in question consist of commencing and maintaining litigation for an ulterior purpose or when they amount to an abuse of process.

In the case of the alleged tort of abuse of process, there is obviously a strong case that the tort, if it was committed, was committed in this jurisdiction. See Metall & Rohstoff v Donaldson Inc [1990] 1 QB at 405; the decision of Gatehouse J was varied on appeal but the variation did not relate to his remarks on this point. Likewise with champerty and maintenance, there is much to be said for the view that they are committed in the place where the litigation is maintained and that they have a substantial connection with that jurisdiction.

We have no hesitation in rejecting the challenge to the Chief Justice’s refusal to accept the appellants’ explanation of the delay in moving to set aside service of the writ and in taking other steps in the action. Nothing has been shown to cause us to disagree with what his Lordship said about the history of the proceedings and the conduct of the appellants. The appellants’ explanation of the delay in responding to service of the writ was rejected by the Chief Justice as not providing an appropriate explanation for the lack of compliance with the rules of Court in this case by the [appellants’] solicitors.

The Chief Justice expressly rejected the appellants’ solicitors’ claim that they were unaware that the High Court Registry in Honiara was open for business from 8 am to 9 am and 1 pm to 2 pm each day Monday to Friday during Court Vacation. Moreover, it appears that, apart from delivery of a brief to counsel on 23 December 1998, nothing was done until Ms Foley returned to the office on 1February from leave (which expired 18 January) and illness. Counsel had evidently been on leave and on his return said he was unable to attend to the matter so another counsel was then briefed. Part of the problem was that the office of the first appellant was closed from 24 December 1998 to 11 January 1999.

In these circumstances, Ms Foley was aware of the time limited for appearance (28 days), the writ, the statement of claim and Registrar’s order having been served on the first appellant on 22 or 23 December 1998. There is nothing to indicate whether an inquiry was made of counsel to ascertain whether he could deal with the matter promptly. Nor does it appear that he was instructed that the matter was urgent.

It was to be expected that, even if Ms Foley was going on leave, arrangements would have been made to ensure that counsel was attending to the brief in good time so as to enable appropriate action to be taken within the time limited by the Registrar’s order. Alternatively, action should have been put in train to request an extension of time both from the respondents’ solicitors and the Court. The first appellant’s lack of attention to the matter in the circumstances was both cavalier and irresponsible. The first appellant’s attitude was compounded by the response of the appellants’ solicitor when, in a latter dated 27 January 1999 in answer to the respondents’ solicitor’s letter of 22 January, he wrote “we will not be bound by your unilaterally declared time limits”. As his clients were then in default, he would have been better advised to adopt a conciliatory tone than to have adopted a lofty, high-hanged posture.

Had the appellants sought and obtained leave to file conditional appearances, some of the difficulties and unnecessary argument would have been avoided.

It would have been open to Muria CJ to have extended the time for filing defenses instead of granting judgment in favour of the respondents. But no application was made to his Lordship for such an order. On appeal it cannot now be said that his Lordship was in error in declining to make such an order.

There was, in the circumstances, a clear default of pleading within Order 23 r. 6 entitling his Lordship to grant judgment.

Accordingly there is no basis for setting aside the default judgment, in the absence of an affidavit or affidavits making out a defense on the merits.

3. Appellant to pay the respondent’s costs of the appeal (including the application for the application for leave to appeal).

Court of Appeal of Solomon Islands

Slater and Gordon v Ross Mining (Solomon Islands) Ltd [2000] SBCA 2; CA-CAC 7 of 1999 (6 July 2000)