Kimitora v Home Finance Corporation of Solomon Islands [2000] SBHC 10; HC-CC 001 of 1998 (9 March 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 1 of 1998

BURNLEY KIMITORA & FLORRIE KIMITORA

–V-

HOME FINANCE CORPORATION OF SOLOMON ISLANDS
& JOHN IPO AND ANOTHER

High Court of Solomon Islands
(Lungole-Awich, J)

Date of Hearing: 6 March 2000
Date of Judgment: 9 March 2000

Mr T Kama for the plaintiff
Mrs L Tepai for the defendant

JUDGMENT

(Lungole-Awich, J): The defendant has applied by summons dated 15.2.2000 for order that the action of the plaintiff be dismissed for want of prosecution. The defendant cited Order 38 r 2 (2) of the High Court (Civil Procedure) Rules as the law under which the application was made. There had earlier been two applications for dismissal for want of prosecution. In the latter application, the Court on 20.4.1999 made orders putting the defendant on terms, one of which was that he had to pay costs of the application before he could proceed. The Court stated that the order was mandatory. O38 r2 (2) which defendant relied on states:

(2) Where the plaintiff does not, within the period fixed under the preceding paragraph, set the action down for trial, the defendant may himself set the action down for trial or may apply to the Court to dismiss the action for want of prosecution, and on the hearing of any such application, the Court may order the action to be dismissed accordingly or make such other order as to the Court may seem just.

Mr Kama, learned counsel for the plaintiff, opposed the application, he submitted that the facts in this application could not be the subject of O38 r2 (2). He however, went on to submit that the delay of the plaintiff since the order of this Court was made on 20.4.1999, requiring parties to take certain steps leading to set down of the case for hearing, was excusable delay. He stated the facts from the bar table; no affidavit had been filed on behalf of the plaintiff to explain his failure to comply with the order or his delay generally.

The application, though it cited O38 r2 (2), could in fact have been made simply by citing and grounding it on the order of Court made on 20.4.1999. The order was made on an application under O38 r2 (2) on the ground that the plaintiff had failed to set down the case for trial. The order put the plaintiff on terms. There is no merit in the contention about O38 r2 (2).

I do not see any possible answer that the defendant could give to excuse his non-compliance with the order made on 20.4.1999, especially the order to pay the costs of the application forthwith. He did not protest and apply to the Registrar to have the costs taxed if he considered the bill of $1,735 too high. He failed to make even a start to any of the orders anyway. Moreover, even by the time of hearing the plaintiff has not moved to purge his default.

In an application for dismissal for want of prosecution, the Court may make orders putting the respondent on terms instead of dismissing the case. Failure to comply with the peremptory order then leads to dismissal – see Pryer –v- Smith [1977] 1 All ER 218 and South Pacific Marketing (NZ) Ltd –v- Daniel Maeke [1987] SILR 82. What I have outlined has occurred in this case. The proceedings must now be brought to an end. The application to dismiss the plaintiff’s case is allowed, the plaintiff’s case is dismissed. He is to pay the costs of the proceedings including the costs of this application.

Delivered this Thursday the 9th day of March 2000
At the High Court
Honiara

Sam Lungole-Awich
Judge