Idufanoa v Livestock Development Authority [1992] SBHC 49; HCSI-CC 284 of 1992 (15 December 1992)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 284 of 1992

LIBORIO IDUFANOA

-v-

LIVESTOCK DEVELOPMENT AUTHORITY

High Court of Solomon Islands
(Palmer J.)
Civil Case No. 284 of 1992

Hearing: 14 December 1992
Judgment: 15 December 1992

J.C. Corrin for Appellant
P. Tegavota for the Respondent

PALMER J: This is an application by summon filed on the 20 November 1992 to set aside a default judgment and for leave to file a defence out of time.

The statement of claim under a Writ of summon was filed on the 15 September 1992. It was served by registered post, due date of posting being on the 22 September 1992.

On the 8 October 1992 a notice of motion for judgment was filed. The motion I was heard on the 5 November 1992 and judgment made against the Defendant.

The application is made pursuant to Order 29 Rule 12 of the High Court Civil Procedure Rules.

The Head of Mamara Industry, Luke Maenia gave sworn evidence as to the merits of the application. He stated that on the 28 September 1992 he duly instructed his first Solicitor for the Defendant Company. He did not hear anything further until he was served with a copy of the judgment dated the 5 November 1992. He then instructed Mr. Tegavota who now appears in this action on behalf of the Defendant.

The blame for the failure to enter an appearance and to file a defence is attributed wholly on the Defendant’s first Solicitor.

Ms Corrin in response to the application referred to the case of Kayuken Pacific Limited v Harper SILR 1987, 54 in which it was pointed out that the English Courts have taken a more stringent approach against Solicitors who do not “get on” with their cases. The learned Chief Justice Ward referred to the statement of Denning M.R. in Allen v Sir Alfred McAlpine and Sons [1968] 1 All E.R. 543 at page 546 which stated:

“These emphatic decisions of the court of Appeal, which lay down a more stringent practice than was formerly followed have injected a new element of expedition in the conduct and preparation of cases by trial ..... Plaintiff’s Solicitors who do not “get on” with their cases, will be at risk of having the plaintiff’s action dismissed for want of prosecution and themselves rendered liable for negligence.”

It was submitted by Ms Corrin that the application should not be granted on the grounds that the first Solicitor of the defendant had been at fault.

I accept that the case cited recognises the courts more stringent approach, however the other matters relating to the application need to be considered as well.

In Kayuken’s case at page 59 paragraph 3 the learned Chief Justice stated:

“In this case, the conduct of the lawyer first instructed by the defendant appears to have been negligent and totally unjustified.”

I am of the view that the same perhaps could have been said inrespect of the actions of the first Solicitor of the defendant.

At paragraph 4, he stated:

“I am reluctant to take any step that appears to save a lawyer from the consequences of his own negligence but I fear there is a serious chance of injustice here. The defendant has delivered a viable defence, the delay since judgment is not inordinate ......and the facts are such that a trial at this stage will not prejudice the plaintiff’s case.”

On the question of whether there is a viable defence, Mr. Maenia submitted as exhibit a copy of the Defendant’s instructions to their first Solicitor. I am satisfied there is a triable issue for a court of law to try.

The reason for the failure to appear was due solely it seems to the inaction of the defendant’s Solicitor.

As to the delay since judgment, I am not satisfied the delay is inordinate or inexcusable. It is clear that the 2nd Solicitor was enlisted shortly after it was discovered that nothing had been done by the first Solicitor.

On the question of prejudice, I am also not satisfied that the plaintiff will be unduly prejudiced. To the contrary, there is a strong possibility that injustice will be perpetrated if the judgment is not set aside. The defendant cannot be blamed for the Solicitors lack of action and negligence.

The courts must be careful in my view when considering such applications against a defendant whose Solicitor has been negligent and inactive. The over-riding consideration must always be the balance of justice.

In this case I am satisfied that judgment should be set aside. Accordingly the judgment dated the 5th of November is hereby set aside. I give leave to the defendant to file a defence within 14 days. No more extensions of time will be allowed.

All costs in the default proceedings to be borne by the Defendants.

(A. R. Palmer)

JUDGE