Aerolift International Ltd v Mahoe Heli-Lift (SI) Ltd [1997] SBHC 79; HC-CC 387 of 1995 (14 November 1997)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 387 of 1995

AEROLIFT INTERNATIONAL LTD

-V-

MAHOE HELI-LIFT (SI) LTD AND OTHERS

High Court of Solomon Islands
(Palmer J.)

Hearing: 13th November, 1997
Ruling: 14th November, 1997

J. Sullivan for the Applicant
Attorney-General representing the Third Defendant
No appearance by First and Second Defendants.

PALMER J.: This is an application by summons filed on 3rd November, 1997 on the part of the Plaintiff for a number of orders. One of these related to a request for further and better particulars filed on 14th October, 1997 in which the following particulars were sought:

1. As to paragraph 4 of the Statement of Defence - State with particularity the authority by which the Third Defendant detained the helicopter.

2. As to paragraph 6 of the Statement of Defence - State with particularity the alleged defects in the Plaintiff’s helicopter or other circumstances of lack of airworthiness of the helicopter upon which the Third Defendant relied when grounding the helicopter including but not limited to any legislation or subordinate legislation said to be breached by the operator of the helicopter giving rise to its grounding.

In paragraph 4 of his Statement of Defence, the Third Defendant denied that he had wrongfully detained the helicopter. As to whether this is correct in law or not is with respect a matter of law and evidence to be determined at trial. It is sufficient that he has indicated clearly what his defence is about and to let the Plaintiff know what he has to meet in terms of the defence. The request for further and better particulars is refused.

The second request made in my respectful view is a proper one and should be provided. I do note though that the learned Attorney-General did indicate that those particulars had actually been provided by way of a letter to the Plaintiff’s Solicitors dated 4th June, 1997. If that was the intention then that letter should formally be made part of the pleadings. The Third Defendant is to file further and better particulars within 21 days of this order.

The second order sought against the Third Defendant is for discovery of documents which the Plaintiff believes the Director of Civil Aviation may still have had in his possession but may not have discovered. These relate in particular to communications which the Plaintiff believes were held by the Director with overseas persons concerning the airworthiness or otherwise of the helicopter.

In response to this, the learned Attorney-General has indicated quite clearly that if no document has been discovered, then it simply meant that there was none.

I am prepared nevertheless to grant the order sought to give the Director another opportunity to re-check his files on this specific matter.

As to the request for the qualifications of the Director to be produced, in my respectful view is unnecessary at this stage. That is a matter which can be addressed at trial and is clearly a matter of evidence and law.

As to whether any guillotine orders should be granted, in my respectful view that is not necessary. If there is default, then the Plaintiff can make a separate application to have the defence of the defendants struck out. This court will seriously consider any such applications in view of the concerns raised by the Plaintiff now on delay, and if justifiable, such orders will be granted.

As against the First and Second Defendants, the Plaintiff alleges that there are documents which have not been discovered. He referred to a number of items in the list discovered by the Attorney-General in which copies of correspondences to the First Defendant had been discovered but no corresponding matches from the documents discovered by the First Defendant. I note Counsel for the First and Second Defendants did not appear to oppose application. I am satisfied in the circumstances that this request should also be granted.

ORDERS OF THE COURT:

1. The Third Defendant file and serve his affidavit of further and better discovery within 21 days of the making of this order.
   
2. The Third Defendant file and serve his further and better particulars in response to the Plaintiff’s request for further and better particulars of the defence of the Third Defendant filed on 16 September 1997 which request was filed on 14 October 1997 as contained in paragraph (B), within 21 days of the making of this order.
   
3. The First and Second Defendants file their affidavit of further and better discovery within 21 days of the making of this order.
   
4. Inspection of documents to take place within 28 days of the date of the making of any order herein.
   
5. Each party shall notify the other of the discoverable documents of the other of which copies are required within 7 days of completion of inspection of documents.
   
6. Provided that the solicitor requesting the copies gives the usual undertaking to pay for the copies the subject of order 3 hereof, copies of the documents os ordered be made by the party possessing those documents and delivered to the solicitor ordering same within two business days of the date of the receipt of the list for copying.
   
7. Each party to deliver interrogatories for the answer of the other parties, if any, within 28 days of the receipt of the copies of documents requested by it from all other parties pursuant to order 6 hereof and in the absence of ordering any such copies then within 28 days from the completion of inspection of the other party’s documents.
   
8. Answers to interrogatories to be delivered within 28 days of the date of the service of any interrogatories by the interrogating party.
   
9. The Plaintiff is at liberty to apply to have the defence of the defendants struck out in default.
   
10. The parties to have liberty to apply for further orders or directions on the giving of two business days notice to the other.
    
11. The costs of this application to be borne by the Defendants.
    
12. The First and Second Defendants file and serve their Notice of Change of Advocate within 7 days of the date hereof.
    

THE COURT.