Aerolift International Ltd v Mahoe Heli-Lift (SI) Ltd [1998] SBHC 48; HC-CC 387 of 1995 (16 November 1998)

HC. CC387 of 1995

HIGH COURT OF SOLOMON ISLANDS

AEROLIFT INTERNATIONAL LIMITED

-V-

MAHOE HELP LIFT (SI) LIMITED AND OTRS

High Court of Solomon Islands
(Palmer J.)
Civil Case No. 387 of 1995

Hearing: 3 September, 1997
Ruling: 12 September, 1997

Attorney-General for the Applicant Third Defendant
J. Sullivan for the Respondent Plaintiff

PALMER J.: The Attorney-General applies by summons filed on 29th April, 1997 for orders to set aside the default judgment entered against him on the 8th day of April, 1997, on the ground of non-compliance with rule 14 of Order 29 of the High Court (Civil Procedure) Rules.

Order 29 Rule 14 reads:

"In proceedings against the Crown no judgment for the plaintiff shall be entered in default of pleading without leave of the Court, and any application for such leave shall be made by notice of motion or summons served not less than seven days before the return day.

The Applicant argues against the orders of this Court issued on the 12th of March, 1997, which states inter alia that, in default of filing and serving affidavit of documents within fourteen days of the said order, the Defence of the Third Defendant shall be struck out without further order or direction and the Third Defendant placed in the position of a Defendant who has not filed and served a Defence. The Applicant argues that such order is inconsistent with the requirement placed in Rule 14 of Order 29. He submits that leave must first be obtained before judgment in default can be entertained by the Court. In this case, the terms of paragraph (1) of the Order of this Court issued on 12th March was inconsistent with the requirement imposed by R. 14 of 0.29 and therefore must be set aside.

Counsel for the Respondent on the other hand argues that it would have been implicit in paragraph (1) of the Order that leave had been granted by the Court and therefore R. 14 of O.29 had been complied with. With respect, I must disagree. The terms of paragraph (1) of the Order issued on 12th March, 1997 makes no mention of any leave being incorporated in the order of the Court. It simply states that in default of pleading the Plaintiffs claim shall be struck out without further order or direction. It makes no provision for leave to be granted to enter judgment thereafter. The Respondent accordingly has to apply for leave under R. 14 of O.29 to enter judgment. There is no evidence of any such application having being made. The judgment in default therefore filed and entered on the 8th of April and issued on the same day had been irregularly obtained contrary to O.29 R. 14 and accordingly should be set aside.

This brings me next to consider paragraph (2) of the Order sought by the Applicant; that the Court grants an extension of time within which the Third Defendant to file its List of Documents. Unfortunately, this cannot be granted in view of the fact that the Third Defendants' Defence had been struck out by virtue of this Courts' Order issued on 12th March, 1997. That order issued on 12th March, 1997 had not been set aside, only the judgment in default had been set aside. This meant that the Respondent can still come back to Court for leave to enter judgment against the Applicant. Mr Sullivan however has opted for a more practical and realistic approach by seeking directions from the Court that in the event the judgment is set aside that the Court should impose strict requirements against the Third Defendant in the following terms:

(1) that a defence be filed within two weeks.

(2) that he pleads to the particulars relied on (that is the facts, matters and circumstances) for the grounding of the aircraft and for requiring it to leave the country, in default the Respondent should have leave to sign judgment without any further application under O.29 R. 14;

(3) that an order for costs in favour of the Respondent be made in this application and an order for fixed costs in the sum of $1,000.00 each for two earlier appearances in which costs had been granted in favour of the Respondent.

Taking the above submissions into account, I make the following orders:

1. Set aside Judgment in default entered on 8th April, 1997.

2. A new Statement of Defence to he riled within 14 days.

3. Discoveries by lists 7 days after.

4. Replies 7 days thereafter.

5. Inspection and interrogatories within 14 days.

6. Answers to interrogatories 14 days after.

7. The matter to be listed for trial with Judges' bundle of pleadings after 56 days.
   

8. Liberty to apply on two days notice.

On the question of fixed costs, that should be the subject of a separate application. 1 see no basis to incorporate costs in the orders sought above. As to costs in this application, it should fall within costs in the cause.

ALIBERT R. PALMER

The Court.