Solomon Island Home Finance v Attorney General [2011] SBCA 3; Civil Appeal 02 of 2011 (2 May 2011)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION: Appeal from Judgment of the High Court of Solomon Islands (Chetwynd, J.)

COURT FILE NUMBER: Civil Appeal Case No. 2/2011 (On Appeal from High Court Civil Case No.126 of 2007)

DATE OF HEARING: 2nd May 2011
DATE OF JUDGMENT: 2nd May 2011

THE COURT: President- Sir Robin Auld
Justice Glen Williams
Justice Bruce McPherson

PARTIES:

SOLOMON ISLAND HOME FINANCE
Appellant

V

ATTORNEY GENERAL
Respondent

ADVOCATES:
Appellant: Gabriel K Suri

1st Respondent: Wilson Rano

3rd Respondent: Attorney General (Muria Junior)

KEY WORDS:

EX TEMPORE/RESERVED: Ex Tempore
ALLOWED/DISMISSED: Dismissed
PAGES: 1 - 2

JUDGMENT OF THE COURT

This is an application or an appeal by Mr Suri on behalf of the Solomon Finance Limited (“the Company”) seeking to renew an application notified on the 31st of January of 2011 by the Company, a defendant in a civil case in the High Court. The notice of application sought leave for an extension of time in which to file a notice of appeal argued in the Court below against an adverse decision of the Court on the 7th of December 2010.

At the time Mr Suri filed and served that application, the Company was already 21 days out of time for filing a notice of appeal. Mr Suri allowed a further two months until early April 2011 to lapse without further notifying the Court or the other parties, by affidavit exhibiting a proposed notice of appeal of the grounds of appeal that the Company had in mind. All there was, was a letter on the 2nd of March 2011, to the other parties which he characterised to the Court as advice to them of “the gist of the appeal”. Plain reading of the letter shows that it did not take even to do that, and it certainly did not develop the proposed grounds of appeal that he sought to argue.

Mr Suri had left for Malaita on the 28th of March 2011and did not return until 8th April. He seemingly did so without arranging cover for his designated points for service notification and from the Court, namely his pigeon hole in the High Court. Nor did he check his email. During the two months, he did nothing to progress the proposed application for an extension of time, either by seeking a date for a hearing or otherwise, or by service of an affidavit exhibiting the proposed notice of appeal. He seems to have considered it a sufficient indication of his reason for continued delay in notifying of the High Court, not the Court of Appeal, of other commitments requiring adjournment or deferment of cases in that jurisdiction in which he was instructed.

The Court of Appeal brought the matter to a head/to be heard? on 31st March 2011 by issuing and serving on Mr Suri through his High Court pigeon hole, notice of hearing the application for 6th April and also - importantly - posting the next day, the 1st of April a copy of the Cause List for that date listing it for hearing. Those are conventional means of notification by the Court of proposed dates for dealing with matters in its process and which have to be brought before the Court at some time of the Court’s choosing if not also with the cooperation of the parties.

Mr Suri was not present at the hearing of application by Mr Justice Goldsbrough on the 6th of April nor was anyone else for the Company. In his absence and that of the Company, Mr Justice Goldsbrough dismissed the application made long before for an application for an extension of time. Now we have heard Counsel this morning on both sides, there has been much discussion about what might have been an issue and what would be an issue if the matter were to proceed and as to the reasons for non-representation of the Company at first instance.

But on the Court’s view, the matter is governed by a much simpler principle. It is simply not good enough for Counsel, who is instructed in and has the carriage of a appellate proceedings, or proposed appellate proceedings, to delay progressing them for a period of several months spanning the time within which a notice of appeal should be filed and long after the expiration of that period. Nor did he properly provide information of the fact that he had other commitments requiring his attention and or absence from Honiara. In short, he should have established a simple mechanism for alerting him to the inevitable responses of Court to his silence and inaction over such a period, namely to list the matter for hearing for disposal one way or the other.

Clients deserve better than that. The other parties deserve better than that and so does the Court of Appeal Registry. For all those reasons, we dismiss this application or appeal, whichever it is, with costs.

Sir Robin Auld P
President of the Court of Appeal

Williams JA
Member of the Court of Appeal

McPherson JA
Member of the Court of Appeal