Marine Services Ltd v The Owner of the Ship Classique [1992] SBHC 33; HC CC 96 of 1990 (6 August 1992)

CC 96-90.HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 96 of 1990

MARINE SERVICES LTD

v

THE OWNER OF THE SHIP "CLASSIQUE"

High Court of Solomon Islands (Muria ACJ)
Civil Case No. 96 of 1990

Hearing: 28 July 1992
Ruling: 6 August 1992

J. Corrin for the Plaintiff
T. Kama for the Defendant

MURIA ACJ: The plaintiff obtained a Judgement against the defendant on 4 July 1990 in the sum of A$85,000.00. That judgement was subsequently registered in the High Court of New Zealand on 26 November 1990. Attempts by the defendant in the High Court of New Zealand to set aside that registration failed on 25 March 1992. Barker J. commented that provided the defendant admitted liability, he might have grounds for applying in the High Court of Solomon Islands for a re-hearing, limited to quantum. By a Summons filed on 18 June 1992 in this Court, the defendant seeks to set aside the judgment entered against him on 4 July 1990. At the outset I see the defendant’s action as an attempt to have a ‘second - bite’ at the matter again.

The issue for the Court therefore is simply whether it is proper to set aside the judgement which was obtained two years ago.

Mr Kama’s basic argument for the defendant is two- fold.

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 brought in the Courts in England.

On the first argument, I think I can shortly say that it has no merit. The defence as suggested by counsel is not a defence on liability but a dispute as to the quantum. The Affidavit evidence, both those filed on behalf of the plaintiff and the defendant clearly shows that liability had not been seriously challenged by the defendant. In fact the suggested course of action is to apply to have a re- hearing of the quantum only. This is clearly stated in paragraph 20 of the Affidavit of Lois Carol Holmes filed in this Court on 16 June 1992. Further, exhibited to Ms Corrin’s Affidavit of 22 July 1992 "JC5A" shows an extract from the defendant’s note saying; "11. If Reg. could wait for the legal process, he could receive his full entitlement 12. What figure would Reg. accept in cash from me?"

The defendant was clearly prepared to pay Reg. (Reginald Thomas) of the plaintiff company. The only issue which might need to be resolved was the amount of cash to be paid by the defendant. There is therefore no live issue of liability to pay here.

As to the argument of lack of jurisdiction, Mr Kama further submitted that under the Salvage Agreement the applicable law is the English law and that the courts with the jurisdiction in the matter are the courts in England, particularly in London. Ms Corrin, however, argued that even if the courts in London have jurisdiction, in the matter under the Salvage Agreement, the defendant chose not to comply with that Agreement and as such the plaintiff was entitled to proceed in the Courts in Solomon Islands. In any case, counsel argued, the defendant never objected to this court’s jurisdiction to deal with the plaintiff’s claim. As such, counsel says, there is therefore no merit in the defendant’s application.

Firstly, on the question of jurisdiction of this Court in arbitration cases, it is implicit in section 5 of the Arbitration Act 1987 that a party to a written agreement to submit to arbitration is not prevented from commencing legal proceedings in the High Court. The plaintiff in this case who is a -party to a written agreement which contains provisions for arbitration, brought this action before this Court claiming its due for salvage work done on the defendant’s ship. Such due had not been paid and the plaintiff sought to enforce its lien on the ship by the issue of a Warrant of Arrest for the ship. The Warrant of Arrest was issued by this Court on 23 May 1990 in the exercise of its Admiralty Jurisdiction. This Court clearly has jurisdiction to entertain the plaintiff’s claim in this case. The defendant’s argument must fail.

Even for argument’s sake that the Court in London have exclusive jurisdiction under the provisions of the Salvage Agreement, the defendant had, although has the right to object to the want of jurisdiction, waived his opportunity to challenge the jurisdiction. He did not do so then and cannot now, two years later, do so. Order 69 rule 2 of the High Court (Civil Procedure) Rules 1964 provides:

"2. No application to set aside any proceeding for irregularity shall be aI/owed unless made within reasonable time, nor if the party applying has taken any fresh step after knowledge of the irregularity,"

The application to set aside must be made "within reasonable time". What is reasonable time depends on the circumstances of the case. But the circumstances as disclosed in the Affidavits filed on behalf of both parties in this case can hardly justify a delay of two years before applying to set aside the judgement obtained on 4 July 1990 on the ground of want of jurisdiction. See Reynolds -v- Coleman [1887] UKLawRpCh 173; (1887) 36 Ch. D. 453 CA. where the court held that it was too late after a year to set aside the order of service out of jurisdiction.

The above rule further provides for instances where a party has "taken any fresh step after knowledge of the irregularity". In this case the Writ was issued on 23 May 1990 and served on 23 May 1990 and served on the defendant on 25 May 1990. The defendant then entered a Memorandum of Appearance on 1 June 1990. 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. In Moore -v-Gamgee [1890] UKLawRpKQB 115; (1890) 25 QBD 244 at 247, Cave, J. compared the jurisdiction of the county court with the jurisdiction of the High Court, where it is sought to serve a writ on a defendant who is resident abroad. Cave J. stated:

"In such a case in the High Court, if the defendant is served, and takes any step in the action, except moving to set aside the service, he waives the objection of want of jurisdiction and cannot be heard; but a conditional appearance may be entered, which has not the effect of waiving the defendant’s right to object to the jurisdiction;"

He went on to add:

"I think, therefore, that the objection to the jurisdiction of the Court may be waived by taking any step in the proceedings before applying to dismiss the action."

The defendant in this case had no doubt taken a fresh step in the proceedings when he filed an appearance on 1 June 1990. He thus submitted to the jurisdiction of the Court and cannot now complain of want of jurisdiction.

Other matters were raised by Mr Kama included the defendant’s complaint that he was not able to obtain legal advice in Solomon Islands, that the plaintiff used the court process unfairly against him and that the plaintiff made no attempts to resolve the matter under the provisions of the Salvage Contract and proceeded through Court instead. Those matters had already been dealt with by Barker, J. in his judgement on 25 March 1992 in respect of the defendant’s application to set aside registration of a judgement in the High Court of New Zealand and it is unnecessary for me to repeat what His Honour had said.

The Court has discretion whether to set aside a judgement 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 4 July 1990. For the reasons aforesaid, this application must fail.

Application refused with costs.

(G.J.B. Muria)
ACTING CHIEF JUSTICE