Tino v Earthmovers (Solomons) Ltd [2001] SBHC 141; HC-CC 184 of 1998 (18 September 2001)

HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE NUMBER 184 OF 1998

EDWIN TINO & OTHERS

–V-

EARTHMOVERS (SOLOMONS) LIMITED

HIGH COURT OF SOLOMON ISLANDS
(PALMER ACJ)

HEARING: 14TH SEPTEMBER 2001
JUDGMENT: 18TH SEPTEMBER 2001

Bridge Lawyers for the Applicant/Defendant
A & A Legal Service for the Respondent/Plaintiff

PALMER ACJ: This is an application commenced under Order 61 Rule 4(1) of the High Court (Civil Procedure) Rules, 1964 for orders of certiorari and mandamus against the decision made by the Registrar of High Court refusing to list the Applicant’s summons filed on 10th July 2001.

Background facts

On 20th June 2001 the Respondent/Plaintiff (“the Plaintiff”) sought orders before the Registrar of High Court (“the Registrar”) inter alia for further and better particulars of Defence and Counter-Claim to be filed within 14 days in default thereof the Defence and Counter-Claim were to be struck out and Judgement entered for the Plaintiffs as sought in their Statement of Claim. The Applicant/Defendant (“the Defendant”) did not object to those orders. The Registrar perfected the orders on 2nd July 2001. I quote:

“That unless the Defendant, within 14 days provide particulars of Defence and Counter-Claim as sought by the Plaintiffs in their request filed on 25th June 1999, the Defence and Counter-Claim be struck out and Judgment entered for the Plaintiffs as sought in their Statement of Claim.”

The due date fell on 4th July 2001. The Defendant failed to file the further and better particulars as ordered. On 10th July 2001, Counsel for the Defendant filed summons, seeking orders inter alia to have the order of 20th June 2001 struck out and for further orders for directions. On 11th July 2001, the Registrar returned the summons of the Defendant. There followed exchanges of correspondences between the Registrar and Defendant’s Counsel. On 27th July 2001, Registrar advised Counsel that he was not going to list his summons, giving rise to this application.

Reasons for refusal to list summons

The reasons for the refusal by the Registrar to list the summons of the Defendant can be gleaned from his replies to the letters of Defendant’s Counsel. At exhibit No. “AN4” attached to the affidavit of Andrew Nori filed 31st July 2001, second paragraph, the learned Registrar states:

“The order says that unless the defendant provides further and better particulars of the Defence and Counter-Claim ... within 14 days ... the Defence and Counter-Claim shall be struck out and judgment entered for the Plaintiff. That order was effective on 20th June. As I understand it, the further and better particulars have not been supplied. If they have I regret to say that there is no copy on the Court file. The unless provision has therefore become effective. There has been a formal hearing and the matter was judicially considered. That was on 20th June.”

In exhibit “AN6” the learned Registrar further stated:

“I appreciate that there is one line of argument which says that an “unless” order once effective should be treated as a default judgment and therefore subject to Order 29 rule 12. I am also aware of the alternative argument, which I feel is much stronger, which suggests that the only possibility is to appeal against the original order. Of course, in the present case that raises difficulties about being out of time for appealing.”

See also exhibit “AN9” of same affidavit of Andrew Nori.

Submissions of the Defendant

Defendant’s submission is fairly simple. Learned Counsel argues that the question whether to list a summons or not is an administrative function. Provided fees had been paid, the Registrar is obliged to list the summons for determination by the Court. He argues the Registrar does not have power to make judicial decision regarding listing of the Defendant’s summons. The right time for it is when matter comes before the Court and arguments for and against had been heard. He submits Registrar’s actions are ultra vires. No authority however has been cited in support of Counsel’s submissions.

The order of the Registrar

What was the order of the Registrar and what did it say? Basically it was a guillotine order. It was effective on the date of issue but suspended for 14 days on certain conditions being fulfilled. If those conditions are not fulfilled on due date, the order is enlivened, unless application is made to enlarge time before the due date. The order does not need to be enlivened on further application. It had simply been suspended for 14 days to give time to the Defendant provide further and better particulars of Defence and Counter-Claim. On 5th July 2001 therefore, the Defence and Counter-Claim of the Defendant were deemed struck out and judgment entered for the Plaintiff. Thereafter the Plaintiff had a valid Judgment in his favour. The effect of such order is that it has the effect of finality [Bozson v. Altrincham UDC [1903] UKLawRpKQB 44; [1903] 1 KB 547 applied; Felix Ano Suva’ahu and Another v. Omex Limited and Others, Civil Case No. 173 of 2000 (Kabui J.); Peter Taniana & Ors. V. QBE Insurance International Limited, Civil Case No. 190 of 1998 (Palmer J.)].

The summons of the Plaintiff

The summons (copy annexed as Exhibit AN1 to the same affidavit of Andrew Nori filed 31st July 2001) of the Plaintiff was an application to the Registrar in Chambers inter alia for orders “That the order of the Court dated 20th June 2001 requiring the Defendant to supply further and better particulars be set aside”.

Conclusion

The Registrar was correct in refusing to list the Defendant’s summons, as it was erroneous. This must surely come within his administrative functions to refuse to list applications that are manifestly erroneous on their face. Otherwise, the result would be to have unnecessary applications being placed before the Courts. The Defendant is not without recourse because as indicated in the correspondences exchanged the correct application to be made is by way of appeal. Judgment becoming effective from 5th July 2001, the Registrar was obviously functus officio regarding any further applications concerning the Order of 20th June 2001. Proper course would have been to file application by appeal to a Judge of the High Court against that order.

Orders of the Court:

1. Refuse orders for certiorari and mandamus.
   

Costs of the Plaintiff in this application to be borne by the Defendants.