Totorea v Grainger Corporation (Vanuatu) Ltd [1995] SBHC 84; HCSI-CC 74 of 1995 (27 November 1995)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 74 of 1995

JOSEPH RODI TOTOREA

-V-

GRAINGER CORPORATION (VANUATU) LTD
INTERNATIONAL CASINO SERVICES LTD
ANDY AYAMISEBA
VINCE CONTE
SEAN GULLY

(Palmer J)

Hearing: 27 November 1995
Judgment: 27 November 1995

F Waleilia for Plaintiff
J.C. Corrin for Defendants

PALMER J: Judgment: By summons filed on the 2nd of June, 1995, the Plaintiff sought inter alia orders for a Receiver to be appointed to deal with and manage the operations and assets of the Honiara Gaming Club with specific powers set out in paragraph 1 of that Summons. The Contention of the Plaintiff in essence is that the Defendants have dissipated the disputed properties to an extent which requires intervention by a receiver appointed as an officer of the Court. The Plaintiff seeks to prove that by alleging that those disputed properties have been deposited in accounts in other commercial banks other than the account ordered by the Court. Unfortunately, the Plaintiff has not been able to have access to those other accounts. It appears that the Banks have refused to make any affidavits when approached by the Plaintiff on this issue. As a result of that lack of cooperation or refusal by the Banks, the Plaintiff has reverted to the issue of the subpoena duces tecum to require the attendance of the Banks and the production of certain documents within their possession. A number of subpoenas duces tecum have been issued. It is the issue of those subpoenas which are the subject of the preliminary challenge by the Defendants.

The first objection raised by the Defendants is that subpoenas should not be issued to compel the attendance of a witness for the purpose of proceedings in Chambers except with leave of the Judge or Registrar. It is not disputed that subpoenas may be issued at trial. The English Courts however have thought it necessary for leave to be obtained for Chamber’s hearings. I think there is much common-sense in that requirement. It enables the Court to determine the relevance of a subpoena at that stage of the proceedings, and to decide its appropriateness and any other necessary matters which may be required to be considered or imposed in respect of the subpoena. Unfortunately, that requirement is specifically catered for in the rules of the English Courts. Not here in our Courts.

Mr. Waleilia has correctly pointed to the provisions of Order 39 Rules 26 and 27, which in my view deal with the questions of issue of subpoenas in interlocutory hearings. There is no mention of a requirement for leave to be obtained for hearings in chambers. I am satisfied therefore that that requirement does not apply here, though I can understand the reasons for it in the English Courts, and may be it should also be considered when we get around to reviewing our Court Rules.

The second ground relied on is that a subpoena to produce documents must specify the documents required to be produced with sufficient precision to enable the recipient to know what documents are required. I think there is much sense in this and its relevance is important in such an instance here. In this particular case, although I can accept the description of the documents for production referred to in para. 7 of Mr. Waleilia’s submission as sufficient, there must be a clear indication as to the period of time of which those documents are required. It is my view that the relevant cut-off date would be the 14th of March 1995. So all subpoenas relating to the production of documents for this application should refer to the date of the 14th March and thereafter.

A third argument raised and this has been raised with specific reference to Westpac Bank is that the subpoena had been addressed to the Company name. It is contended that it should have been addressed to a particular officer. I do not think much can be made on this point. The fact that the company has been subpoenaed by name in my view simply means that whoever has been given the mandate by the company to act on its behalf must attend.

Usually that involves the Manager of the company. However, there is an added advantage because, it gives room for the company to send some other responsible officer on its behalf rather than the General Manager or Manager of the Bank. However, if it is to be by the name of an officer of the Bank, then in normally circumstances it must be the Manager of the company.

A fourth argument raised relates to questions of service of the subpoenas. There is no time period given as to the date of service and date returnable of the subpoena. I think common-sense must apply. If it is clear that the production of those documents will require time and effort, then sufficient time must be given.

There is some reference to the question of costs to be incurred in the production of those documents.

I do not think there is any serious impediment to that. That can be raised as a separate issue before the Registrar. Order 39 Rule 46 does deal with questions of expenses and attendance on subpoena of witnesses. The Bank in my view can raise this issue under this head before the Registrar for his consideration as to whether such costs should be awarded and how much.

The application to set aside those subpoenas therefore is denied. In view of the further to set aside those subpoenas therefore is denied. In view of the further requirement imposed that a cut-off point in time be mentioned in the subpoenas (14/3/95), I suggest that that requirement be made known to the persons affected with not less than two days notice from today.

SUMMONS FILED ON 23 OCTOBER 1995 BY THE DEFENDANTS

The first ground seeks a dismissal of the Plaintiff’s claim or that it be permanently stayed on the ground of lack of prosecution. I think it is not disputed at all by the parties that the Court has power to dismiss or stay proceedings on a permanent basis for want of prosecution. One of the common grounds on which such a claim may be granted is where there is inordinate and inexcusable delay on the part of the Plaintiff’s lawyer. There is a reference to the point that had directions been complied with in June then the matter could have been heard by now. The Plaintiff contends however, that it had not been idle, that it had been dealing with other incidental matters, including the application filed in June for the appointment of a receiver. Unfortunately, that application has been delayed until now.

The evidence adduced in my view has not shown to my satisfaction that there has been inordinate and inexcusable delay on the part of the Plaintiff’s lawyer. The application under paragraph 1 therefore should be set aside.

SECURITY FOR COSTS

There are situations in which such an order would be justifiable. I do not intend to say what those would be, but those would be in the Court’s discretion and dependent on the circumstances of each case.

I have considered carefully the grounds relied on by the Defendants for such an order at this point of time. Unfortunately, I must decline to grant such an order when it would appear to be oppressive. There is no evidence to show that the Plaintiff will not be able to satisfy an order for costs. There are triable issues which are yet to be determined before a full hearing. It has not been shown to my satisfaction that there is a lack of bona fides on the part of the Plaintiff and that his chances of success are slim. These are arguable issues at this point of time and it would be unrealistic, in the absence of satisfactory evidence to make an order determinative on such arguable matters.

No security for costs therefore should be ordered and that application is also denied.

The order for directions is justifiable, and I will issue directions as follows:

1. That the Plaintiff provide the further and better particulars of his statement of claim requested in the Defendants Sol.’s letter of 11 April 1995 within 14 days.
   

2. Discovery in 14 days;

3. Inspection in 14 days;

4. Interrogatories 14 days after;

5. Matter be listed for hearing on application, with Judge’s Bundle of pleadings by the Plaintiff.
   
6. Costs in the cause.
   

A.R. PALMER
JUDGE