Avaiki Shipping Company Ltd v Attorney-General [2001] SBHC 114; HC-CC 248 of 2000 (5 June 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 248 of 2000

AVAIKI SHIPPING COMPANY LIMITED

-V-

ATTORNEY GENERAL AND OTHERS

HIGH COURT OF SOLOMON ISLANDS
(F.O. KABUI), J)

Hearing: 29th May 2001
Judgment: 05th June 2001

Mrs N. Tongarutu for the Applicant
Mr J. Keniapisia for the Respondent

JUDGMENT

(Kabui, J): By Notice of Motion filed on 6th December 2000 and repeated on 15th December 2000, the Respondent seeks the following Orders-

1. An Order to strike-out the Applicant’s Originating Summons for non-compliance with Order 58 of the High Court (Civil Procedure) Rules, 1964.
   
2. Such other orders as the Court thinks fit.
   

This is an unusual step to take in this case. I had already ruled in favour of the Respondents in my judgment delivered on 24th January 2001 in the absence of the Plaintiff’s attendance at the hearing. What is there to strike out under Order 58 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules)? In that Judgment on 24th January 2001, I said the Plaintiff had no case to argue under Order 58 of the High Court Rules and so I ruled against the Plaintiff. To come again to Court by Notice of Motion to strike out the Originating Summons is an abuse of the Court process. What was a foot is the Plaintiffs Summons filed on 22nd February 2001 seeking to set aside my default judgment on 24th January 2001. The position was rather complicated by the fact the hearing date was fixed for the hearing of the Respondent’s Notice of Motion than hearing the Plaintiff’s Summons which had been adjourned for a date to be fixed. Counsel for the Respondent then took that opportunity to argue his Notice of Motion first, followed by Counsel for the Plaintiff who likewise argued her Summons to set aside. In any case, both actions were heard together by the Court by agreement of both Counsel. As a matter of procedure and common sense, I cannot grant the order sought in the Notice of Motion filed by the Respondent. Such order is self-defeating in that it asks the Court to do what it had already done.

I therefore reject the Respondent’s Notice of Motion accordingly. The application is dismissed.

The Plaintiff’s Summons

By Summons filed on the 22nd February 2001, the Plaintiff seeks the following orders-

1. That the Judgment entered by this Court on 23rd January 2001 against the Plaintiff be set aside.
   

2. Any other orders that this Court deems fit to make.

As I have said, I dealt with the Plaintiff’s Summons filed on 31st October 2000 on 23rd January 2001 and gave my judgment on 24th January 2001. I dealt with that case under Order 38, rule 6 of the High Court Rules 1964. That is to say, I proceeded to hear the Respondent in the absence of the Plaintiff who for some unknown reason was not in Court at the hearing of its Summons. I gave judgment in favour of the Respondent. In terms of Order 38, rule 7 of the High Court Rules, my judgment on 24th January 2001 can be set aside provided that the Plaintiff makes an application to set aside within 21 days after the trial. In this case, the Plaintiff filed its application to set aside on 22nd February 2001, 31 days after the trial. Clearly, the Plaintiff was out of time. No application having been made under Order 64, rule 5 of the High Court Rules for extension of time, the Plaintiff is now time-barred. There is no choice but to dismiss the Plaintiff’s application. I make no Order as to costs.

(F.O. Kabui)
Judge