Reef Pacific Trading Ltd v Price Waterhouse [1997] SBHC 14; HC-CC 164 of 1994 (7 April 1997)

HIGH COURT OF THE SOLOMON ISLANDS

Civil Case No: 164 of 1994

REEF PACIFIC TRADING (THE COMPANY)
AND JOANNE MARIE MEINERS

v

PRICE WATERHOUSE (THE FIRM), RICHARD ANTHONY BARBER (PARTNERS), WILLIAM DOUGLAS McCLUSKEY (PARTNERS)

Before: Lungole-Awich, J

Hearing: 17th April 1996 - Judgment: 7th April 1997

Counsel: J Meiners in person - J Sullivan for the defendants

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JUDGMENT

LUNGOLE-AWICH, J:

These two applications, for order to strike out defence and enter judgment for plaintiffs, and counter application to strike out statement of claim and dismiss the case, were argued as long ago as 16th and 17th of April 1996. Judgment was reserved to the following week. Then somewhat unusual events occurred. I started to receive letters from a Commission of Inquiry into certain aspects of past court cases in which the plaintiffs were parties. Some aspects of the inquiry seemed to me to be not completely irrelevant to this case. The Commission requested certain case files from me and sought my assistance to have the Sheriff attend before the Commission. Later, the Commission asked me to testify before it and I did testify. I formed the view that I should not be writing judgment when the Commission was still in communication with me. I had in fact drafted judgment. In fact even now, I am not certain that I should proceed to hear this case when it appears that the plaintiffs are still pursuing administrative actions of the Executive. In my view court cases should come only after the Executive has been afforded opportunity and has exhausted administrative actions or has neglected it. I have now decided to deliver this ruling because it seems all is quiet about the Commission.

The plaintiffs, Reef Pacific Trading Limited and Joanne Marie Meiners, applied to court to strike out defence and counter claim of the defendants Price Waterhouse (The firm), Richard Anthony Barber and William Douglas McCluskey. The grounds were that the defendants had failed to comply with the order of this court made on 22.8.1995, for discovery. The defendants denied that they failed to comply with the order for discovery and made counter application that the statement of claim of the plaintiffs be struck out and the suit be dismissed. The grounds were that the plaintiffs had failed to answer interrogatories served on them.

At the hearing of the applications, counsel for the defendants said that he would not insist on the defendants' counter application because service was not certain, it having been effected through a facsimile number of Mr. Michael Rafter, a solicitor who represented defendants at making application for discovery. Counsel said that there might have been error in the fax number. The counter application is treated by court as having been discontinued. No order is made in regard to it. In the circumstances, any costs that may have arisen in regard to the counter application are to be costs in the cause.

The defendants' response to the application of the plaintiffs was simply that they complied with the order. They said that the defendants' filed, on 29.9.1995, discovery affidavit of Richard Anthony Barber, sworn on 28.9.1995. The affidavit was served on 29.9.1995. And further that supplementary affidavit of the same deponent, sworn on 12.10.1995 was also filed and served.

The plaintiffs' case for striking out defence was centred on, not failure to discover, rather on failure to have the plaintiffs inspect the documents after due notice had been given to the defendants

The defendants, in their discovery affidavit, presented two long lists of documents - the first alone was a list of 505 documents, supplemented by another list of 106 . There was also a short list of privileged documents. According to the order for discovery, the discovery was to be done at Honiara, within the jurisdiction of the court. The documents or some of them were in fact not brought to Honiara for inspection. The defendants said that they did not do so because the plaintiffs. by their solicitor, Mr. Michael Rafter, based in Australia asked the defendants' solicitors in Brisbane, to present the discovery documents at an office in Melbourne where Mr. Milte, a barrister and Rafter would inspect them and that the defendants by their solicitor, Mr. Peter Andrew Smith, based in Brisbane, Australia complied. So the defendants say the plaintiffs waived the right arising from the order requiring discovery in Honiara.

The plaintiffs' reply to the argument of the defendants was that Mr. Rafter was not their solicitor nor was Mr. Milte their barrister in the matter, and that they did not authorise the two to accept discovery outside Solomon Islands. The order was mandatory in any case

I accept, on the facts, that the plaintiffs' did not authorise Mr. Rafter and or Mr. Milte to accept discovery outside Solomon Islands. That is consistent with their request during application for discovery. Strangely, it was Mr. Rafter who represented the plaintiffs at that application, and urged for discovery to be made in Honiara. Then later it was Mr. Rafter who started the idea of discovery in Australia, as far as correspondence annexed to affidavits show. The first was his letter dated 13.9.1995 addressed to solicitors for defendants. It reads:

MICHAEL RAFTER & ASSOCIATES
Barristers and Solicitors

Ph/Fax:	2nd Floor
(61) 3 6021623	95 Queen Street
	Melbourne 3000
Feez Ruthning	Date: 13/9/95<9/95
Solicitors, Eagle St.
BRISBANE 4000
Attention: Mr. Niel Rankin

Dear Sir

Reef Pacific Trading Limitmp; Other v Price Waterhouse & Others

I am the Soliciolicitor instructed in this matter with George Trazcyk the acting Barrister and Mr. Philip Tegavota, Solicitor and town agent

Attached are copies of the Order of the High Court for Discovery and the Order of the Court of Appeal refusing a stay of the Discovery. I have also served your town agent in Honiara, Mr. Thomas Kama with the documents.

It maybe of some interest to you to note that at the hearing of the application for leave on the 31st August before Kirby P of the Court of Appeal, when asked which point of law the appeal was based on Mr. Kama did not know and admitted upon questioning that the objection to Discovery was that "there could be some documents that may support the plaintiffs' Statement of Claim". It was also noted by his Lordship that your clients have no office in the Solomon Islands and questioned Mr. Kama as to how they could have been appointed receivers.

I point these matters out to you as you may now wish to reconsider your clients position.

Yours faithfully

(signed)

MICHAEL RAFTER

The reply of the solicitors for the defendants, dated 29.9.1995 suggested that discovery be made in Australia. It, must, however, be noted that the letter pointed out that discovery was to be made in Honiara according to the court order, and that they had sent discovery affidavit to Mr. Kama, their correspondent solicitor in Honiara to deliver to Mr. Tegavota, solicitor for plaintiffs in Honiara. There was no pretence, resistance or unwillingness on the part of the defendant to make discovery in Honiara. I quote their letter:

aligvalign="top" width="29%">Group td valign="top" wop" width="35%">SOLICITORS & NOTARIOTARIES aligvalign="top" width="36%">120 EAGLE STREET BRISBANE AUSTRALIA /tr> td valigvalign="top" width="36%">Partner Responsible: d valigvalign="top" width="36%"> d valign="top" width="36%">29 >29 September 1995

Feez Ruthning		Allen
		Arthur Robinson<
&nb">		Correspondence
RIVERSIDE CENTRE	P O Box 7082
	RIVERSIDE CENi>
	BRISBANE QLD
FACSIMILE	TEL: [phone]	AUSTRALIA 4001
FAX: [phone]
If there are any problems
with this transmission,	<
please call Esther
on (61) 7 3833 3236
To:	Michael Rafter & Associates,	Barristers & Solicitors
Fax No:	(3) 6021623
FROM:	Peter Smith	[Ph. [phone] Direct Line]
	Geoff Rankin
DATE:
Our Ref.:	Price Waterhouse & Ors v	Reef Pacific Trading Ltd.

TOTAL PAGES [1]

We refer to you letter of 13 September 1995.

Our cilents' affidavit of documents has been sent to Mr. Kama by facsimile today to be flied and served on Mr. Tegavota as town agent for the plaintiffs. The original affidavit of documents will be couriered to Mr. Kama this weekend and filed early next week. A copy of the affidavit will accompany this letter by post.

The Registrar has directed that our clients produce the discovered documents to our clients for inspection in Honiara. If you prefer to Inspect the documents In Melbourne (as an alternative to Honiara) we are happy to make arrangements for that to occur. Otherwise, we will make the documents available for inspection in Honiara within the next four weeks at a time mutually convenient An articled clerk from our firm will accompany the documents to Honiara and supervise the inspection.

Would you please contact Peter Smith as soon as possible to arrange inspection.

Yours faithfully

(signed)

The defendants were led to believing that Mr. Rafter and Mr. Milte had the mandate of the plaintiffs, first by the deception of the practitioners, but which had appearance of being authorised by the plaintiffs. Both had acted for plaintiffs earlier in the case, and in the case of Rafter, as recently then as in the making of the application for the discovery which is now being fought in court. The plaintiffs or their new or joint solicitor, Mr. Tegavota had not filed notice of change of solicitors. I think the second letter of Mr. Rafter to solicitor for defendants put it beyond doubt that they would accept discovery in Melbourne Australia. I quote it here:

MICHAEL RAFTER & ASSOCIATES

Barristers and Solicitors

Barristers & Solicitors < r>

2nd Floor, 95 Queen Street	Our Ref.
MELBOURNE, 3000	Your Ref.
Tel: [phone]
Fax: [phone]
October 6, 1995
Messrs Feez Ruthning
123 Eagle Street
Brisbane 4000
QUEENSLAND	Att: Mr. Peter ,Smith

Dear Sir

We refer to our conversation today.

We would be pleased to inspect thuments referred to in your Affidavit of Discovery very In Melbourne on or about 16 October.

We will produce any documents you may require as listed in our affidavit Could you Identify those you would like to view and we will do likewise.

Yours Faithfully

MICHAEL RAFTER & ASSOCIATES

Per:

Encl.

The plaintiffs made the point that the order to discover in Honiara was mandatory and could not be changed. I think that is taking it too far in regard to interlocutory orders about pleadings in civil cases. The suit itself could be ended by consent order. It is my decision on the facts made available, that the defendants were entitled to regard Mr. Rafter as having been authorised by the plaintiffs to accept discovery in Melbourne, a city far away from defendants' solicitors, and that when the defendants presented the discovery documents to Mr. Milte and Mr. Rafter, the defendants may be regarded as having acted by consent or on instruction of the plaintiffs. The plaintiffs cannot, because of their deemed consent, be heard to complain about the discovery being at a place other than Honiara. The application of the plaintiffs are dismissed.

In the circumstances, I now make the order that the defendants make available the discovery list together with the documents, or copies of the documents at the office of their solicitors in Honiara. The defendants are to do so within 30 days of today's date. Notice that the documents are available are to be given to the plaintiffs as they have now dismissed Mr. Tegavota who was their solicitor in Honiara.

I was minded to order costs for this application against the plaintiffs because they have lost the application, and particularly because at the hearing Mr. Sullivan made offer that the defendants were willing to make repeated discovery, for inspection in Honiara on a mutually agreed date. The plaintiffs did not respond to that offer. In the end I was swayed by the fact that the defendants, knowing the difficulty in cooperation between themselves and the plaintiffs in related cases, should have filed a draft consent order varying the terms of the order for discovery dated 22.8.1995 before they could proceed to tender discovery outside Honiara. I finally decided that costs be in the cause of the action itself. There is the question of costs relating to two days at the beginning of the hearing. On the first day the case had to be adjourned because Mr. Tegavota, Solicitor for the plaintiff did not attend court and left no message although he was aware of the trial and in fact had attended at the court registry. Adjournment was granted to the plaintiffs. Then another day had to be wasted because when the second plaintiff decided that the plaintiffs would proceed without counsel, she and the first plaintiff did not file company resolution authorising that decision. Wasted costs for the two days only are awarded against the plaintiffs in favour of the defendants.

Delivered this 7th day of April 1997

At the High Court, Honiara

Sam Lungole-Awich,
Judge