Tong v Kayuken Pacific Ltd [1990] SBHC 47; HC-CC 044 of 1989 (10 August 1990)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 44 of 1989

TONG

-v-

KAYUKEN PACIFIC LIMITED and KHOO

High Court of Solomon Islands
(Lodge, Registrar)

Hearing: 9 August 1990
Judgment: 10 August 1990

J. Corrin for the Plaintiff
Mr Young for the Defendants

LODGE: In this matter the plaintiff has applied to the Court under O.45 r.32 for an order for oral examination of the defendants.

By a summons filed and served on 9th August and heard with the consent of Miss Corrin for the plaintiff at short notice the defendants seek orders setting aside the order for oral examination as irregular, alternatively dismissing the order as oppressive and alternatively for an adjournment of the examination.

It is first submitted that the order for oral examination is irregular on the grounds that the judgment in this case has not been served upon the defendants and that the order was made on the basis of an affidavit of the plaintiff when no such affidavit had been filed.

Order 45 rule 32 permits a party who is entitled to enforce a judgment or order for the recovery or payment of money to apply to the Court for an order for oral examination. It is submitted by the defendant that the plaintiff at the time he applied for the order for oral examination was not entitled to enforce the judgment. He was not so entitled because he had not served the judgment on the defendant in accordance with O.45 r.1 and in the manner prescribed by O.43 r.1 and 6.

Miss Corrin admits that the judgment was not entered and served in the manner prescribed by order but contends that the failure to do so is immaterial as it has not been the practice in this jurisdiction to comply with O.43. She further contends that the irregularity can be cured by order of the court under O.69 r.1.

I do not accept that Miss Corrin's arguments are correct. I feel that were it necessary to serve the judgment debtor with a copy, the mere fact that parties have in the past failed to comply with rules of court could not assist the plaintiff.

However, the first question I must ask myself is whether it is necessary to comply with O.45 r.1 before applying for an oral examination under O.45 r.32. O.45 r.1 of the Rules of the High Court of Solomon Islands is in exactly the same terms as O. 42 r.1 of the Rules of the Supreme Court 1883. The note to that order in the 1961 edition of the Rules at r.1 and r.17 (which is identical to our O.45 r.16) clearly states that service of the judgment or order is not a necessary preliminary to the issue of a writ of fieri facias on a judgment containing an absolute direction to pay or giving an absolute right to recover. A number of authorities are cited in support of this proposition, but quite clearly this construction of O.45 r.1 makes sense when it is read in conjunction with O.43 r.6.

The judgment in the present case gives the plaintiff an absolute right to recover against the defendants. No time for payment is allowed and under O.42 r.17 of the 1883 Rules the plaintiff would be entitled to sue out a writ of fieri facias to enforce payment of the sum due under the judgment.

In my view the same construction must apply to O.45 r.32. I am reinforced in this view by the case of Brown v. Stafford [1944] 1 All E.R. 172. In that case at p.174 Lord Green M.R., discussing Ord. 42 r.32 of the 1883 rules said -

"The phrase in the rule in my opinion was framed not for the purpose of laying any particular emphasis on the word "entitled" ....... but in order to have a comprehensive phrase which would cover not only a successful litigant, but an assignee or his legal personal representative or anybody claiming through him. That appears to me to be the reason why those words are used."

I find that the plaintiff is a person entitled to enforce the judgment in this case and accordingly that in this respect at least the order for oral examination was properly issued.

It is however correct to say that there is an irregularity in the order for oral examination. The affidavit filed in support of the ex parte application for the order is not an affidavit of the plaintiff. It is an affidavit sworn by Miss Corrin on behalf of the plaintiff. That is an irregularity. The effect of such an irregularity was considered by the learned Chief Justice in the case of Co-op v. Poloso (CC 240/87). In that case the learned Chief Justice based his decision upon the authorities cited in the notes to RSC Ord.70 r.1 and in particular the leading case of Anlaby v. Praetorius [1888] UKLawRpKQB 55; (1888) 20 QBD 764. A distinction is to be drawn between proceedings which are a nullity and proceedings which are merely irregular.

In my view the irregularity in the present case clearly falls into the second category and does not render the proceedings void. There is a discretionary power under O.69 for the court to set aside the proceedings but in this case I am satisfied that the irregularity is not a material irregularity and I permit the plaintiff to amend the order by the insertion of the words "on behalf of" after the word "affidavit" in the first line of the Order.

Paragraph 1 of the defendants' summons is dismissed.

It is submitted in the second paragraph of the defendants' summons that the Order for oral examination is oppressive and thereby an abuse of power and therefore must be dismissed. I do not see that there is any merit at all in this submission.

An order for oral examination is normally granted to a successful litigant as a matter of course. It may, in certain circumstances, be oppressive to allow such an examination to take place but I cannot see that any of those circumstances apply here.

What the defendants in this case are saying, though it is not clear on the face of the summons, is that to allow the oral examination to proceed now would be oppressive on the grounds that an application for a stay of execution pending appeal is listed for hearing in the near future.

If I find that it would be oppressive to proceed now the proper order would be to adjourn the order for oral examination to a date subsequent to the application for stay of execution.

I see no grounds upon which I could dismiss the order as oppressive per se at this stage and I dismiss paragraph 2 of the defendants' summons.

I will consider paragraph 3. Counsel for the defendants has referred me to a number of Australian and English authorities which deal with the power of a liquidator under s.268(1) of the Companies Act 1948 (U.K.) and s.541(2)(b) of the Companies Code (Qld) to obtain an order for oral examination. The general thrust of those authorities is to the effect that it may amount to oppression to allow an examination to proceed when the examination would afford the examiner an opportunity to rehearse cross-examination which may be directed against the examinee in pending litigation.

With respect I feel that the position in this case is totally different. The purpose of the rule in the cases under the Companies Act is to protect the examinee from self-incrimination and to prevent him from being forced to disclose information which may adversely affect the conduct of his defence in other proceedings under the Companies Act. There is no need for such safeguards in this case. The plaintiff in this case has a valid judgment in his favour and is entitled to enforce it. The mere fact that an application for a stay of execution pending appeal has been filed is not of itself sufficient to prevent the plaintiff from enjoying the fruits of his litigation, and that extends not only to execution but to the prosecution of other proceedings under the judgment. This must in my view extend to oral examination.

The defendants submit that to permit an oral examination now would be unfair as it would allow the plaintiff an opportunity to rehearse cross-examination of the defendant on matters which are to be raised upon the application to stay execution, namely the financial situation of the defendant.

I cannot agree. The defendants have applied for a stay of execution pending appeal. The application was filed subsequent to the filing of the notice of appeal and has been dealt with as an application under the Court of Appeal Act 1978. The defendants have been aware of this throughout and have not raised any objection.

Though it is not a matter upon which I am required to reach any decision I am of the view that inability to pay is not a proper ground for staying execution pending appeal. It may be a ground for an application to stay execution under Ord.45 r.19 but the defendants have not applied for a stay under O.45 r.19.

This point having been raised by Miss Corrin Mr Young seeks now to say, in effect, that his application may be brought under either the Court of Appeal Rules or O.45 r.19. Presumably, not having stated in his application which rule he is relying on he intends to elect whichever rule is most convenient for his case.

I cannot permit this. To do so would be to permit an abuse of the process of the court. The application has been brought under the Court of Appeal Act and will be dealt with as such.

As a general rule the only circumstances in which a stay may be granted are when not to order a stay would render the appeal proceedings nugatory. An oral examination of itself cannot fall into this category.

In those circumstances I can see no grounds upon which it could be ruled as oppressive to permit the oral examination to proceed. I decline to order an adjournment of the oral examination and the defendants' summons is dismissed.

(M. W. Lodge)
Registrar of High Court