HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 230 of 1998
ROSS MINING (SI) LTI) LTD,
GOLD RIDGE MINING LTD & ROSS MINING NL
v
SLATER AND GORDON (“A FIRM”),
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DENIS WALTER REINHARDT & MERTHYR HOLDING PTY LTD
High Court of Solomon Islands
Before: Muria, CJ.
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Civil Case No. 230 of 1998
ing: 1 February 1999
Judgement: 10 June 1999
F. Griffith Q.C. with A. Radclyffe for the Plaintiffs
br>
P. G. Nash Q.C. with C. Ashley for the Defendants
JUDGMENT
MURIA CJ:.
There are two applications now before the Court, one filed by the plaintiffs
and the other, by the defendants. At the
commencement of the hearing, it was
agreed that the two applications be dealt with together at the same time.
By their application the plaintiffs seek, inter alia, judgment with
damages to be assessed. The defendants, on the other hand, challenge the
jurisdiction of this Court to
deal with this matter and that the proceedings
be dismissed on the ground that the causes of action pleaded do not fall
with Ord. 11 r1 of the High Court (Civil Procedure) Rules 1964. By
the nature of the applications it is necessary that the court deals with the
defendants' application first before
considering the plaintiffs application.
The Defendants' Application
<
As I understand, Mr. Nash's argument for the defendants' case is this that the
cause of action alleged in this case against
the defendants did not arise in
this jurisdiction and as such this Court has no jurisdiction to deal with
the matter.
That being so, leave granted to serve out of the jurisdiction
should be set aside. Alternatively, if there is jurisdiction,
then
nevertheless, service on the defendants should be set aside on the basis
that the application for leave to serve
out of jurisdiction was made without
any supporting affidavit as required by the Order 11 r 3 of the Rules.
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Mr. Griffith's contention is that this Cous jurisdiction to deal with with
this case; that there was sufficient materials
to support the grant of leave
to serve out of jurisdiction; and that the plaintiffs are entitled to
judgement in default
of pleadings or in default of appearance. On the issue
of Conditional Appearance entered by the defendants, Mr. Griffiths contended
that the defendants could only enter such appearance with leave of the
Court. In this case no leave had been sought and
so there was no appearance
in effect on behalf of the defendants.
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Issuean>
It appears to the Court that there are three main s to be considered
he here. These are:
2. whether leave to serve out of jurisdiction was effective;
3. whether service on defendants shoe set aside.
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There are other subsidiary issues which arnected to the three main
in
ones. However those can be dealt with together
with the three main issues
set out above.
Whether the alleged tort committed within the jurison
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These are cases, cited by Counsel, which coned this issue in the past
ast
from other jurisdictions. I find the cases
cited of great assistance. At the
end of the day, this Court has to come to its own decision based on the
rules applicable
in this jurisdiction. The starting point must, therefore,
be the rule relied upon in this case, namely, rule 1(f) of Order
11 which
provides as follows: -
"Service out of the jurisdiction of a writ of summons or notice of a writ of
summons may be allowed by the Court
whenever -
class="MsoNoMsoNormal" style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
.............
(f) the action is founded on a tort committeditted within the jurisdiction."
Counsel for defendants strongly urged that the plaintiffs in this case could
not bring themselves within this sub-rule
and therefore service out of the
jurisdiction was made without jurisdiction. The authorities on the matter
are very clear,
although they may appear to be somewhat varied in view of
the rules of Court applicable in the various jurisdictions. In some
jurisdictions, the rules expressed the test in the language such as the
action must be founded on a "tort committed within the jurisdiction"
as used in Order11 r1(f) of our Rules. See George Monro Ltd v. American
Cyanamid & Chemical Corporation [1944] 1 K.B. 432; Buttigeig v.
Universal Terminal & Stevedoring Corporation [1977] V.R. 626; Attock
Cement Co. Ltd v. Romanian Bank [1989] 1 W.L.R. 1147; Diamond v. Bank
of London & Montreal Ltd. [1979] 1 Q.B. 333; [1979] 1 All E.R. 561;
Multinational Gas v. Multinational Gas Services [1983] 2 All E.R. 563;
Castree v. E.R. Squibb & Sons Ltd. [1980] 1 W.L.R. 1248; [1980] 2 All
E.R. 589. In other instances the jurisdictional test used was whether "a
cause of action arose within the jurisdiction" as was the case in
Jackson v Spittal
[1870] UKLawRpCP 58; (1870) LR 5 C.P. 542; Distillers Co. (Biochemicals) Ltd. v. Thompson
[1971] A.C. 458. To my mind, it matters not which phrase is used for the
purpose of testing the jurisdiction in a case such as the present one.
The
rules envisage one thing purposely and that is, to note that the
jurisdiction of the Courts in a Country is territorial,
so that the action,
whether in tort or contract, sued upon must have some connection with the
country concerned before
the Courts can deal with it. As was pointed out in
Distillers Co. v Thompson at page 467:
p class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
"But when the ion is which country's cour courts should have jurisdiction to
try the action, the approach should
be different: the search is for the most
appropriate Court to try the action, and the degree of connection between
the
cause of action and the country concerned should be the determining
factor."
Tyne Improvement Commissioners v Armement Anversois S.A. (The Brabo)
[1949] A.C. 326; [1949] 1 All E.R. 294 which was cited in Distillers Co.
v. Thompson, Lord Porter said:
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"Primarily the jurtion of the Courts in this this country is territorial in
the sense that the contract or tort sued
upon must have some connection with
this country or the defendant must be served here".
Again, in the Australian case in Victoria, Lewis Construction Co. Pty
L Ltd. v. M. Tichauer S.A. [1966] VicRp 45; [1966] V.R. 341, the Court said:
"... uestions to be litigated ined in this action are much more closely
concerned with Victoria than with France
and that the action is one which
properly belongs to the Courts of this State."
So it is the search for the most appropriate Court to try the action that
the Courts in those cases were concerned
with. That is also what we are
about in this case. In so doing we have to ascertain whether the alleged act
on the part
of the defendants which gave the plaintiffs their cause of
complaint arose within the jurisdiction of the Courts in this country.
In
other words, whether the alleged tort of conspiracy by the defendants which
gave rise to the plaintiffs complaint
in this case arose within the
jurisdiction of the Courts here. See George Monro Ltd where Lord
Goddard pointed out that the tort committed within the jurisdiction must be
limited to a wrongful act committed
within the jurisdiction and do not
extend to a case where the wrongful act was committed outside the
jurisdiction but
the damages resulting therefore occurred within the
jurisdiction.
The distinction between ascertaining the place of the commission of the tort
and the place of the resulting damages
suffered does not make the search for
appropriate Court easier in such an action as this. In fact it had led to a
divergence
of views and opinions as can be seen from the cases. In two cases
cited earlier, George Monro Ltd. and Lewis Construction Co. the
Courts were concerned to look at the place where the defendant did the act
which caused the harm complained of an
order to ascertain where the tort
occurred. In Bata -v- Bata (1948) W.N. 366, the Court held that the
tort occurred in the place where the last ingredient necessary to complete
the tort happened.
In the case of the Distillers Co. v. Thompson as
we have seen, the Court held that the place where the wrongful act occurred
was the place where the defendant did
the act which the plaintiff complained
of. In other words, the cause of action arose where the wrong was committed
that
is, where the act on the point of the defendants which gave rise to
plaintiffs complaint occurred. This is the principle laid
down in
Jackson -v- Spittal
which was applied in many other cases including Distillers Co. -v-
Thompson.
Having regard to the principles set out in the cases referred to, I now ask
myself the question: Did the acts done by
the defendants, which gave rise to
the plaintiffs' cause of complain in this case occur with the jurisdiction?
Put another
way, the question to be considered is whether the complaint by
the plaintiff was the result of the tort committed by the defendant
within
the jurisdiction. As the plaintiffs' action is based on the alleged
conspiracy said to have been committed by
the defendants, it would be
necessary to look at what was alleged to have been done here by the
defendants. It is true
that the defendants are all foreigners and are out of
jurisdiction. However, the question is not so much whether the defendants
who are foreigners are out of the jurisdiction but rather whether their
actions as complained of were in substance arisen
in this country. If the
answer is, yes, then the Court has jurisdiction; if the answer is, no, then
the Court has no
jurisdiction and that is the end of the matter.
It is therefore necessary to look at what the defendants were alleged to
have done in this case. The allegations raised
are contained in the
Statement of Claim and they are the basis for the alleged torts of
conspiracy, maintenance and champerty
raised against the defendants.
Allegations of Conspiracy, Maintenance and Champerty
It is alleged in paragraph 8 of the Statement of Claim that from in or about
December 1996, the defendants unlawfully
conspired to injure the plaintiffs
by unlawful means, namely by, procuring various citizens of Solomon Islands,
including
David Thuguvoda, Willie Roni and Billy Gatu to commence and
prosecute various proceedings in the High Court of Solomon Islands
against
the first and second plaintiffs for collateral and improper purpose, that is
placing improper pressure on plaintiffs
to negotiate various matters
including pressure to obtain the electricity supply source for the Gold
Ridge Mining Project
from the Lungga Hydro Power Consortium (LHC) and to
obtain compensation additional that which the Solomon Islanders were
entitled under law. There is also the alleged pressure to force the
plaintiffs to abandon the Gold Ridge Mining Project.
A number of overt acts
of pressure were alleged in paragraph 8(a)(2) in particular, the following:
"(i) The institution in the High Court of Solf Solomon Islands civil cases: 59 of
1997 (hereafter "the Gatu
Dismissal Proceedings"); 60 of 1997 (hereafter
"the Roni/Thuguvoda Proceedings"); 168 of 1997 (hereafter "the
Maningelea
Proceedings"), 169 of 1997 (hereafter "the Saki Proceedings").
(ii) The Gatu Dismissal Proceedings were dismissed on 17th
September 1998.
(iii) oni/Thuguvoda Proceedings were discontinued on or about 3rd
October 1997 and an application attempting to revive those proceedings was
dismissed.
th October 1998.
(v) Letter dated 10th March 1997 from Nicholas Styant - Browne
(hereafter "Styant -Browne") on behalf of S&G being a partner of the
said
firm to Dr. Lambertus de Graaf, CEO RML threatening that unless the Ross
Mining Companies negotiated with S&G,
it would "embark upon lengthy and
internecine litigation".
Then there is alion of providing funding by the present defendants to
the plaintiffs in those various proceedings
in which the present defendants
did not have a genuine or legitimate interest and agreeing to share the
fruits of the
proceedings. In this regard it is alleged against the
defendants in paragraph 8 (b)(1) that:
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"(i) In or about February 1997, Reinhardt, on hion his own behalf and on behalf
of Merthyr and/or Styant - Browne
on behalf of S&G (being a partner of the
said firm) funded a return trip (including accommodation and living
expenses)
from Solomon Islands to Australia by Thuguvoda and Gatu in return
for Thuguvoda's and Gatu's promise to commence and prosecute
proceedings
against RMSIL and GRML.
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(ii) Between about 11th March 1997 1997 and about 13th
March 1997, S&G funded a return trip (including accommodation and living
expenses) by Thuguvoda and Roni from Honiara,
Solomon Islands to Australia
for the purposes of prosecuting proceedings against RMSIL and GRML.
(iii) Between about 13th June 1997 and about 21st June
1997, S&G funded, together with Merthyr, a return trip (including
accommodation and living expenses) by Thuguvoda,
Roni and Alfred Maeke
(hereafter "Maeke") from Honiara, Solomon Islands to Brisbane, Sydney, and
Melbourne,
Australia for the purpose of prosecuting proceedings against
RMSIL and GRML and related purposes.
(iv) Between about 20th July 1997 and about 26th July
1997, S&G funded, together with Merthyr, a return trip (Including
accommodation and living expenses) by Thuguvoda,
Roni and Alfred Maeke
(hereafter ''Maeke'') from Honiara, Solomon Islands to Brisbane, Melbourne,
Sydney, and Brisbane,
Australia, for the purpose of prosecuting proceedings
against RMSIL and GRML, and related purposes.
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(v) On or about 22 September 1997, S&&G funded Roni's
accommodation expenses in Honiara, for the purpose of prosecuting
proceedings
against RMSIL and GRML.
(vi) en about 30th November 1997 and about 6thth
December 1997, S&G funded, together with Merthyr and/or Reinhardt, a return
trip (including accommodation and living
expenses) by Maeke, Thuguvoda and
Roni from Honiara, Solomon Islands to Brisbane and Melbourne, Australia for
the purpose
of prosecuting proceedings against RMSIL and GRML, and related
purposes.
(vii) Onbout 13th Januaranuary 1998 S&G funded a return trip
(including accommodation and living expenses) by Thuguvoda, Maeke and Roni
from Honiara, Solomon Islands to Brisbane, Australia, for the purpose of
prosecuting proceedings against RMSIL and GRML.
(viii) Betweeut 15th Februaryruary 1998 and about 20th
February 1998, S&G funded a return trip by Thuguvoda and Roni from Honiara,
Solomon Islands to Brisbane, Australia,
for the purpose of prosecuting
proceedings against RMSIL and GRML and related purposes.”
As against the first defe, it is alleged against them in paragraph
8(b)(2) tha) that they entered into agreement with
the Solomon Islanders
plaintiffs in those earlier mentioned proceedings, other than the Gatu
Proceedings, whereby the
said plaintiffs purported to assign a right to the
fruits of the proceedings to the first defendant in consideration for
financial and other support. In support of that allegation, the plaintiffs
in this case relied on a circulated document
entitled "Authority and
Retainer Agreement."
There were allegs in paragraph 8(c)(1) also that the defendants made
and/or procured the making of false or defamatory
remarks about the
plaintiffs to the Solomon Islands and Australian media, Australian Stock
Exchange, third plaintiff's
shareholders, and plaintiff companies financiers
with a view to putting pressure on the plaintiffs to negotiate to obtain the
electricity supply source for the Gold Ridge Mining Project from LHC and to
obtain additional compensation for Solomon
Islanders. The alleged false or
defamatory Statements were made for the purpose of forcing the plaintiffs to
abandon
the Mining Project. The overt acts alleged in paragraph 8(c)(2) in
support of this part of the claim are:
"(i) On or about 30th January 1997, Reinhardt procured Thuguvoda
to sign a letter written by Reinhardt addressed to CDC and the British High
Commissioner for Solomon Islands purporting to inform them that the CDC
should not provide project finance to GRML, and which
falsely alleged that
the Ross Mining Companies or any of them lacked the right to land machinery
for the purposes of
the Gold Ridge Mining Project without further
negotiation.
(ii) On or about 11th November 1998, Ma8, Marita Foley for and on
behalf of S&G issued a press release concerning a complaint filed by Mr.
John McLeod in the Trade Disputes Panel, and which contains material which
was false and defamatory.
(iv) Letter 8th April 1997 1997 to Mr. Terri Pawlyszyn, Research
Director, Pembroke Josephson Wright, stockbrokers, under the hand of Gatu
which enclosed the letter particularised in (i) hereof and falsely alleges
that the Ross Mining basis for the Gold Ridge
Mining Project and falsely
compared the situation to Bougainville.
(v) Letter dated 28th May 199y 1997 to the Australian Stock Exchange
under the hand of Maeke, which falsely suggests, that RML has mislead its
shareholders.
(vi) Letter dated 24th July 1997 to RML shareholders under the
hand of Thuguvoda, Roni and Saki which falsely suggested that the Ross
Mining
Companies had acted improperly in relation to the resolution of
proceedings.
(vii) Various press conferences and interviews aews arranged and/or funded by the
Defendants, including press conferences
and radio interviews on 16th
and 17th June and 21st July 1997.
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(viii) Meeting held on or about 18th June 1997 between Bankers
Trust and Maeke, Roni, Thuguvoda and George on behalf of S&G."
Each of the allegations of conspiracy pleaded in the Statement of Claim were
said to have been done by the defendants
in concert and/or with mutual
consent and approval and knowledge of each of them. Repeating the overt acts
pleaded in
paragraph 8 of Statement of Claim, the plaintiffs further pleaded
in paragraph 10 further overt acts on the alleged conspiracy,
as follows: -
"(a) on or about 30th January 1ary 1997, Reinhardt procured Thuguvoda
to sign a letter written by Reinhardt addressed to CDC and the British High
Commissioner for Solomon Islands purporting to inform them that the CDC
should not provide project finance to GRML, and
which contained false
statements;
(b) in or about February 1997, Reinhardnhardt on his own behalf and on behalf of
Merthyr and/or Styant -Browne on behalf
of S&G (being a partner of the said
firm) funded a return trip (including accommodation and living expenses),
from
Solomon Islands to Australia by Thuguvoda and Gatu as consideration for
Thuguvoda's and Gatu's promise to commence and maintain
proceedings against
the Plaintiffs and in connection with the Roni/Thuguvoda and the Gatu
Dismissal Proceedings respectively;
(c) in and from about March 1997, Mary Polis, Marita Foley, StyanStyant-Browne,
and George on behalf of S&G, wrongfully
procured citizens of the Solomon
Islands by various inducements, including travel, food and financial
assistance, to
retain S&G for the purposes of commencing proceedings against
the Plaintiffs in return for S&G funding the litigation
and being entitled
to a share of the proceeds;
(d) in or about March 1997, S&G wrongfully coly commenced proceedings 60 of 1997
in the High Court of Solomon Islands
against the Plaintiffs in the name,
inter alia, of Nelson Tave without him having retained S&G or otherwise
consented
to the commencement of the said proceedings;
(e) in or about April 1997, Reinhardt and and George procured Roni to sign a
letter prepared by Reinhardt and send it
to RML's shareholders which letter
contained misleading or false allegations;
(f) in or about April 1997, Styant-Bron behalf of S&G. approapproached
Michael Rafter for the purpose of inducing
the Government of Guadalcanal
Province to become a plaintiff in the Proceedings or any of them and with
the unlawful
intention of increasing the pressure upon the Ross Mining
Companies and each of them to negotiate on various matters, including:
(1) to obtain the electricity supply souy source for the Gold Ridge Mining
Project from LHC; and/or
(2) to obtompensation additional to t to that to which the plaintiffs in the
Proceedings may be legitimately entitled;
and/or
(3) to abandon the Gold Ridge Mining Project.
A
meeting to this effect between Rafteyant-Browne, and Mary PolisPolis was
said to have taken place on or after 10th April 1997 at the
offices of S&G in Melbourne.
<
(g) on or befoth June 1997, S&7, S&G purchased a boom gate and
directed and procured Thuguvoda and/or Maeke to make arrangements for its
installation on Ngalibiu Road, a declared public road, for the purpose of
unlawfully hindering the operation of the Gold
Ridge Mining Project, and the
operation was so hindered between about 26th June 1997 and about
30th June 1997.
The plaintiffs allege,he alternative, that the defendants unlawfully
conspionspired with each other with the sole or predominant
purpose of damaging
or destroying the business of the defendants in general as well as the Gold
Ridge Mining Project.
The following overt acts were pleaded in paragraph
15(b) and (c) of the Statement of Claim in addition to the overt acts
pleaded in paragraphs 8 and 10:
"(a) writi diverse occasions between ween January 1997 to date to RML's
shareholders, investors, the Australian Stock
Exchange, and the Solomon
Islands' and the Australian Media warning against investing in RML;
(b) From April 1997 orchestrating a media campaigmpaign against the Ross Mining
Companies and each of them in Solomon
Islands and Australia."
There is also the alternative claim by the plaintiffs in this case, that the
the
defendants have used the previous proceedings
mentioned above predominantly
for a collateral and improper purpose outside the ambit of the claims
brought under those
proceedings. Thus, it was an abuse of the Court's
process. In support of this claim, the plaintiffs rely on the matters
pleaded in paragraphs 8 of the Statement of Claim.
On the above alleged acts as pleaded, where can it be said that the tort was
was
committed, in this case? Accepting the
principle stated in Distillers Co.
v. Thompson and applied in Castree -v- E. R. Squibb & Sons the
same test ought to be applied here, namely: to look back over the series of
events constituting the tort and to ask
the question where in substance this
cause of action arise.
One of the elements of the tort of conspiracy is an agreement between the
parties to do an unlawful act. It may well be
true in this case to suppose
that such an agreement (if any) could well have been made in Australia but
the tort was
not complete unless some acts were done in execution of the
agreement. If those acts were shown to have been done within the
jurisdiction and it is those acts which cause injury to the plaintiffs or
gave the plaintiffs their cause of complaint,
then the requirement of Order
11, r 1(f) were satisfied. See Lonrho Ltd. v. Shell Petroleum
Co. Ltd
[1982] A.C. 173; Enzaeor Technology Pty v. Thomas Ko Sai Ying, No.
6928/1992 (Victoria) (Unreported).
Were there overt acts which, on the face of the materials before the Court,
could be said to have been done in Solomon
Islands the consequence of which
gave rise to the plaintiffs' cause of action? I have considered the
materials before
the Court, and in my judgment, there are certainly acts
alleged to have been done by the defendants in Solomon Islands. They
were
part of the acts carried out in execution of the alleged conspiracy. These
acts were pleaded in the Statement of
Claim, particularly in paragraphs 8, 9
and 10. There is the alleged unlawful act of procuring three Solomon
Islanders
Thuguvoda, Roni and Gatu to exert pressure and threat on the
plaintiffs through initiating Court proceedings which they did
by
instituting Civil Cases Nos. 59, 60, 168, all of 1997 in the High Court of
Solomon Islands. Fundings were provided
by the defendants to the three
Solomon Islanders litigants to prosecute the said High Court cases against
the plaintiffs.
Not only fundings were made available to prosecute the High
Court cases but also to bring the various named Solomon Islanders,
Thuguvoda,
Roni, Maeke, Saki and Kebu to Australia for the purposes of prosecuting the
cases against the plaintiffs.
There is also the act of securing the right to
the fruits of these High Court cases to the first defendant in consideration
for the funding assistance to the Solomon Islanders in those cases. A
document entitled, “Authority and Retainer Agreement” to this effect
was made. In addition, there were the actions by the Solomon Islanders, at
the instigation of the defendants,
to make untrue statements about the
plaintiffs in the Solomon Islands media as well as the Australian media. On
or about
30th January 1997 at the instigation of second defendant, Thuguvoda
wrote to CDC and British High Commission in Solomon Islands
conveying to
them untrue statements about the plaintiffs' capability to sustain the Gold
Ridge Mining Project. There
were letters written by Roni, on 7th April 1997
and by Gatu on 8th April 1997 at the instigation of the defendants which
were false and misleading about the plaintiffs and the Gold Ridge Mining
Project. Further letters were written by other
Solomon Islanders against the
plaintiffs at the instigation of the defendants: Maeke to Australia Stock
Exchange, 28
May 1997; Thuguvoda, Roni and Saki to RML Shareholders 24th
July 1997. There were various press conferences and interviews
funded by the
defendants held on 16 and 17 June and 21 July 1997. There was the meeting on
18th June 1997 between Bankers
Trust and Maeke, Roni, Thuguvoda and George
on behalf of first defendant. On or about 26th June 1997 the first defendant
purchased a boom gate and procured and directed Thuguvoda and Maeke to have
it installed on Ngalibiu Road on Guadalcanal
with the result that such
action hindered the Plaintiffs operation between 26 and 30 June 1997. In
addition to using
individual Solomon Islanders, the defendant had also
exerted pressure on the plaintiffs' operation through the Guadalcanal
Province. This was said to have been done in or about April 1997.
Most of the acts pleaded on the Statement of Claim and in particular, the
matters I rs I have just outlined above, demonstrate
that there is a strong
arguable case to support the plaintiffs' argument that the acts which gave
rise to the plaintiff's
cause of complaint were acts done by the defendants
within the jurisdiction of the Courts in Solomon Islands. Some of the acts
complained of were done outside the country. However, there are alleged
overt acts, particularly those set out above,
of the defendants that must be
seen as done in this country.
I
am satisfied that a strong arguable case has been made out by the plhe plaintiffs
in this case that the alleged tort
of conspiracy against the defendants
arose within the jurisdiction. Thus the action brought by the plaintiffs in
this
case is one founded on a tort committed within the jurisdiction. This
court has jurisdiction in this case.
Whether leave to serve out of jurisdiction effectspan>
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For leave to be granted by the court to sout of jurisdiction, there here
must be shown that the tort alleged against the
defendants was committed
within the jurisdiction. In this case, the court has found the tort of
conspiracy alleged against
the defendant was committed within the
jurisdiction. While the power to grant leave to serve court process out of
jurisdiction
is provided for under Order 11 r1, the actual exercise of such
power by the court is determined by Rule 3 of that Order which
provides as
follows:
"Every application for leavserve such writ or notice oice on a defendant out
of the jurisdiction shall be supported
by affidavit or other evidence,
stating that in the belief of the deponent the plaintiff has a good cause of
action,
and showing in what place or country such defendant is or properly
may be found, and whether such defendant is a British subject
or not, and
the grounds upon which the application is made; and no such leave shall be
granted unless it shall be made
sufficiently to appear to the Court that the
case is a proper one for service out of the jurisdiction under this Order"
It is the exercise of that jurisdiction which ought to be done with caution
taking into account all the facts which on
the affidavit should show the
grounds upon which the application is made; that in the belief of the
deponent the plaintiff
has a good cause of action; in what place or country
the defendant may be found, and whether the defendant is a British Subject
or not. Generally, these requirements must be complied with. However as
Kekewich J said in Collins -v- North British and Mercantile Insurance
Company [1894] UKLawRpCh 106; [1894] 3 Ch 228, 234 - 235:
"Generally, I agree that thedavit should be in conformiformity with the very
words of the rule; but if the substance
is there, I sometimes, though not
without hesitation, do not insist upon exact compliance with the language of
the rule."
With respect, I agree with what his Lordship said there. It is the substance
of the case that must be ascertained and
not merely relying on matters
necessary under the rule for the purpose of founding the jurisdiction of the
Court. As
recognised in Rosler -v- Hilbery [1925] 1 Ch. 250:
"It is all very well to comply with the letter of the sub - rules of r. 1
,but one ought to have regard to the true
spirit of the rule."
See also Dickson -v- Law and Davidson [1895] UKLawRpCh 46; [1895] 2 Ch. 62 where itre it was
held that non - compliance with the rule 4 of Order 11 (equivalent to our
rule 3 of Order 11) which
are mere irregularities and not matters of
substance does not entitle the writ and the service thereof to be set aside.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Applying the principles set out in those cases, I do not see any substancstance
in the defendants' argument in this case
that the plaintiffs had not shown
any basis for the order granting them leave to serve out of jurisdiction.
The affidavit
sworn by Mr Radclyffe and filed on 18th December 1998 in
support of the application is in my judgment sufficient to comply
with the
rule concerned. The affidavit referred to the Statement of Claim which I
have already found to have contained
overt acts of the defendants done
within the jurisdiction and which gave the plaintiffs cause to complain. The
affidavit
also deposed to the other matters required under Rule 3 of Order
11. The reference to those requirements may be brief but in
my judgement
there is enough to satisfy the Court that the plaintiff has a good cause of
action and to justify leave
to be granted to serve out of jurisdiction.
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Thus the order granting leave to serve out of jurisdiction made by the
Registrar on 18th December 1998 was properly
granted. It must follow that
the argument that 'It ought to be set aside cannot be sustained.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The defendants' application is refused.
The Plaintiffs' Application
class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1">
The plaintiffs' application seeks an order that judgment be entered for tfor them
with damages to be assessed. Alternatively,
they seek the conditional
appearances entered by each of the defendants be set aside. Basically, the
plaintiffs' case
is that the defendants were in default of appearance or in
the alternative, the defendants were in default of pleading. In
either case,
the plaintiffs should be given a summary judgement in their favour.
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Conditional Appearance
Following the order of 18 h December 1998 granting leave to e to serve out of the
jurisdiction, the defendants were given
28 days from the date of service of
the Writ upon them to enter an appearance. On 22 and 23 December, 1998
respectively
each of the defendants were served in Australia with the Writ,
Statement of Claim and the Registrar's Order of 18th December,
1998. On 20th
January, 1999 conditional appearances were filed on behalf of each of the
defendants. The form of the defendants'
conditional appearances is:
"Enter a Conditional Appearance for [name of defendefendant] in this action"
It is argued on behalf of the plaintiffs that under the Rules a conditional
appearance can only be entered with leave
of the Court and that no such
leave was obtained in this case. In this regard it is worth noting that
under the Rules,
in particular Order 12, r. 17, it is provided that:
lass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
"A defendant before appearing shall be at liberty, without obtaining an
order to enter or entering a conditional
appearance, to take out a summons
or serve notice of motion to set aside the serve upon him of the writ or
notice of
the writ, or to discharge the order authorising such service."
By that rule, a defendant who was served with the or notice of the writ
can apply to have such service set aside
even before entering an appearance.
That rule also allows entry of a conditional appearance after service. It
must be
pointed out that a conditional appearance preserves the defendant's
right to object to the jurisdiction of the Court and irregularity
of the
writ or service. So that if a defendant wishes to object to the jurisdiction
of the Court or the irregularity
of the writ or service, he must enter a
conditional appearance which must properly show that the conditional
appearance
is entered without prejudice to the defendant's right to apply to
object to jurisdiction or to set aside the writ or the service
thereof. So
the position envisaged under the rule is that if the defendant intends to
object to jurisdiction, he ought
to apply for leave to enter conditional
appearance. Once leave is granted, no judgement can be entered against him
in
default of appearance. The other alternative is for the defendant to
apply to set aside the proceedings before entering an
appearance. The
position which is still applicable under our rules is succinctly put by
Robert Goff J in Carmel Exporters -v- Sea - Land Inc. [1981] 1 W.L.R
1068, at page 1072 where his Lordship said:
"If a defendant wished to challenge the jurisdiction tion of the Court, there
were two courses open to him. First
he might, with the leave of the court,
enter a conditional appearance in the action. This had the effect of
preventing
the plaintiff from entering judgement in default of appearance,
while maintaining the defendant's right to object to the jurisdiction
of the
court, or indeed to any irregularity in the issue or service of the writ.
However, subject to that right, a conditional
appearance was a complete
appearance to the action for all purposes. Accordingly, on the expiration of
the relevant time,
if no application had been made by the defendant to set
aside the proceedings, or he had made such an application and it had
been
dismissed, the appearance stood as unconditional and the plaintiff could
proceed with the action. So, if a defendant
wished to avoid submitting to
the jurisdiction, his safer course was not to enter a conditional
appearance, but to take
the second course open to him, which was to apply
before entering an appearance for an order setting aside the proceedings.
This was of course the usual application made by a party outside the
jurisdiction, served with proceedings by virtue
of leave given under Order.
11, if that party did not wish to submit to the jurisdiction."
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
That wasposition previously in England and it is still the positionition in
Solomon Islands and in some states in Australia.
The new procedure under the
new Order 12, r.8 of the UK
R.S.C.
is not applicable here. Leave is required for conditional appearance under
the rules presently applied in Solomon Islands
where the defendant intends
to exercise his right to challenge the jurisdiction or Irregularity. Subject
to that right
a conditional appearance is a complete appearance for all
purposes to an action. So that if the defendant had not applied within
the
time allowed to object to the jurisdiction or irregularity then the
appearance stands as an unconditional one.
In the present case, no leave for conditional appearance was granted and no
application for the same was made. Each of
the defendants simply "Enter a
Conditional Appearance ........." on 20th January, 1999. No action was taken
by the defendants to set aside the proceedings from the time they were
served (22 and 23 December 1998) to 12 February 1999
when their summons was
filed, a period of almost two months. As pointed out in Carmel Exporters,
a conditional appearance is a complete appearance, subject to the right to
object to jurisdiction or irregularities,
such right to be exercised within
the time allowed. This had not been done in this case.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Default of Appearance
The defendants in this case had failed to exercise their right to apply to
set aside proceedings within the 28 days granted
under the Order of 18
December 1998. The result must be that each of the "conditional appearance"
filed on
20 January 1999 must stand as unconditional appearance. There is
therefore no default of appearance by the defendants here.
The plaintiffs,
however, are entitled to proceed with the action thereafter.
Default of Pleading/p>
In the alternative, the plaintiffs seek judgment in default of defence. The
defendants had entered Conditional Appearances,
which are unconditional and
by their inaction for three weeks after filing such appearance, that is, no
defence being
filed as required by Order 23, r.6, the plaintiffs are
entitled to seek judgement in default of pleading under Order 29, r.8.
There
is clearly a default by the defendants in filing defence here and the
plaintiffs are entitled to judgement in default
of pleading. There is no
counter - argument to say that the plaintiffs would not be entitled to
judgement in default
of filing defence in this case. The defendants only
sought to explain away their failure to file defences.
Defendants' Explanation for Delay
Ms. a Helen Foley swore an affidavit which was filed on 12 Dece December
1998 and gave oral evidence seeking to explain
the course of conduct of the
defendants' solicitors in this matter and the reasons for the delay in
taking the necessary
actions within the time allowed. In essence Ms Foley's
evidence was that the delay was due to the closure of Slater and Gordon's
Office from 24 December 1998 to 11 January 1999 coupled with the closure of
the High Court for Christmas vacation from
11 December 1998 to 18 January
1999. Then there was also the delay in briefing counsel due to his absence
overseas. It
was on 20 January 1999 which was the last day allowed for
appearance by the defendants, that "conditional appearances"
were filed.
Whilst I can accept that briecounsel could not be done done due to counsel's
absence overseas, I cannot overlook the fact
that service was effected on
the defendants on 22 and 23 December 1998 and arrangement to have conference
with counsel
was not done until sometime after 1 February 1999 after Ms
Foley's return to work. In fact a brief was sent to Jonathan Beach
of
counsel on 23 December 1998 and it appeared that nothing was done on it
until it was returned to Ms Foley after her
return to work. Sometime after 1
February 1999, Mr. Nash of counsel was briefed after his return from
overseas vacation.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
It is important to note also that the defendants' solicitors in Australia
wore represented in Solomon Islands by A &
A Legal Services as their local
agent. Mr. Ashley of A & A Legal Service only filed conditional appearances
on 20
January 1999 after being instructed by Ms. Foley of Slater and Gordon
The next instruction received by Mr. Ashley was on 12
February 1999 and that
was to file summons seeking to object to the Court's jurisdiction. I do not
believe that the defendants'
solicitors were not aware that the High Court
Registry in Honiara was open for business from 8.00 a.m. to 9.00 a.m. and
from 1.00 p.m. to 2.00 pm each day, Monday to Friday, during the Court
Vacation as stated in the Notice of Court Vacation
and published in the
Gazette on 31. December, 1998. Both parties to this case are represented
in Solomon Islands by local legal practitioners who have the
benefit of
support of overseas counsel and solicitors. The defendants, in particular,
were represented by a large law
firm of Slater and Gordon whose resources
must certainly be adequate to deal with the matter on behalf of their
clients
in such manner as to properly comply with the rules. The evidence so
far does not seem to provide appropriate explanation for
the lack of
compliance with the rules of Court in this case by the defendants
solicitors. The explanation so given by
Ms Foley in this case does not
justify the default committed by the defendants.
<
Conclusion
The dents summons seeks to challenge the jurisdiction of the Cour Court and
to set aside the proceedings in this case.
That has been refused. The Court
clearly had jurisdiction in this case and with that jurisdiction it granted
leave to
serve out of jurisdiction.
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
As to the plaintiffs' motion seeking jud in default of appearance, nce, the
defendants argued that conditional appearance
prevented judgement in default
being entered. That is true only where a conditional appearance is properly
entered. In
this case, the conditional appearance entered on 20 January 1999
was entered without leave of the Court. It is therefore ineffective
as a
conditional appearance which must stand as an unconditional appearance for
all purposes. The plaintiffs are entitled
to proceed with the action. They
have done so and they now seek judgment in default of pleading.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
In this case, there is a clear default by the defendants of pleading and and the
plaintiffs are entitled to judgement.
I therefore grant judgement in default
of pleading to the plaintiffs with damages to be assessed.
Costs to the plaintiffs.
(Sir John Muria)
C CHIEF JUSTICE
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