Taniana v QBE Insurance (International) Ltd [2001] SBHC 165; HCSI-CC 190 of 1998 (25 April 2001)

CC No 190, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 190 of 1998

PETER TANIANA (Suing in his capacity as the Administrator
of the Estate of Atan Tonga), PETER TANIANA representing Agnes Toreta,
Taniana V. Tamaroa, Itaka Taiana, Eren A. Teraavaka, Bwea Tabaia,
Neiema Tarakabu, Mentin Leikabo, Uenteiti Eden, Tiira Abera, Loana Eden,
Cindy Eden, Kaoro Eden, Inging Teiuaki, Aetea Abera,
Remire Abea by their next friend, PETER TANIANA

–v-

QBE INSURANCE (INTERNATIONAL) LTD

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No 190 of 1998

Hearing: 20 April 2001
Ruling: 25 April 2001

C. Ashley for Plaintiffs
J. Sullivan for Defendant

MURIA CJ: By his summons filed on 22 March 2001 the first. Plaintiff, Peter Taniana seeks the amount of $60,000.00 paid into Court in this matter to be released to him in his capacity as “Administrator of the Estate of Atan Tonga.” The defendant opposes the application, contending that the applicant is not entitled to the $60,000.00 claimed in this application.

The brief background to this matter is that as a result of a road accident on 5 February 1995, two people died and several were injured. The deceased’s were Atan Tonga and Abera Tawai. Proceedings had been instituted in the High Court on behalf of the estate of the deceased’s and the injured victims. In respect of the claim by the estate of the Abera Tawai (Deceased), the Court had been informed by Counsel from the Bar table that the claim was settled out of Court. The present action is still pending before the Court.

In the meantime the defendant paid into Court on 27 October 2000 the total sum of $60,000.00 setting out under the Notice of Payment the various amounts in respect of each claimant. It is that total amount that the applicant now seeks to have it released to him as Administrator of the Estate of the deceased, Atan Tonga.

I have no doubt that the defendant had in mind the provisions of the Motor Vehicles (Third-Party Insurance) Act (Cap 83), in particular, section 5(2), when it paid into Court the amount of $60,000.00. That section provides for the limitation of liability to $60,000.00 “in the case of one accident or series of accidents arising out of one event.” It is not for me to decide at this stage whether that amount is sufficient to settle the claims by all the claimants in this action. The only question which I need to decide is whether the Court should allow the release of the $60,000.00 paid into Court to the applicant on behalf of the estate of the deceased, Atan Tonga.

There are two difficulties which I see confronting the applicant in his application. Firstly, 0.24, r.2(1) of the High Court (Civil Procedure) Rules allows the applicant/plaintiff to take out the money paid into Court provided that he gives notice to the defendant within 14 days of the receipt of the notice of payment into Court. Pursuant to 0.24, the defendant paid into Court, without admission of liability, the sum of $60,000.00 on 27 October 2000. A Notice of Payment into Court was filed and a copy thereof was served on plaintiffs’ solicitor on about 27 October 2000. The attempt now by the plaintiff to obtain the money from the Court came after five months of the receipt of the Notice of Payment into Court. This is clearly well outside the time limit stipulated under 0.24, r.2. Not only that the plaintiff was well out of time but I think even more serious is the fact that the plaintiff has ignored the proper procedure under the Rule on obtaining money paid into Court. There is no notice by the Plaintiff under 0.24, r.2(1) as to whether the plaintiffs accepted the whole of the sum paid into Court in satisfaction of the claim nor is there any indication that the present application can be regarded as notice of acceptance of the amount paid into Court. If late notice is intended, that may necessitate obtaining extension of time to do so. Instead, the plaintiff simply steams ahead, after having learnt that the money had been paid into Court, and asks for the money to be paid to him on behalf of the estate of the deceased.

Again, indiscipline to the Rules in this case raises another serious concern. This is in regard to non-disclosure of payment into Court. 0.24, r.6 of the Rules provides:

“Except in an action to which a defence of tender before action is pleaded or in which a plea under the Libel Acts, 1843 and 1845, has been filed, no statement of the fact that money has been paid into Court under the proceeding Rules of this Order shall be inserted in the pleadings and no communication of that fact shall at the trial of any action be made to the Judge until all questions of liability and amount of debt or damages have been decided, but the Judge shall, in exercising his discretion as to costs, take into account both the fact that money has been paid into Court and the amount of such payment.”

That Rules does not permit disclosure of payment made into Court until the questions of liability and question of damages have been decided. Thus without the plaintiff properly complying with the procedure under the provisions of 0.24, r.2 it would be improper for the plaintiff to make the disclosure now contained in the summons now before the Court.

Secondly, the plaintiff claims the whole amount of $60,000.00 from the Court to be paid to him as Administrator of the Estate of the deceased, Atan Tonga. If the Court were to grant him the whole amount in respect of the deceased’s claim, what would be left to pursue their claims through the Court, a course which no doubt would be strenuously objected to by the defendant. Perhaps the applicant who is suing as Administrator of the deceased’s estate as well as suing as representative of the adult injured victims and also suing as next friend of the infants injured victims, would distribute the $60,000.00, if granted, to each of the claimants. Again, I can foresee the objection to such a course of action on the basis that it would be seemingly prejudicial to the fair representation of the interests of each of the injured plaintiffs. To demonstrate the problems arising out of the applicant’s application, Rule 9 of 0.24 would require the Court to sanction payments made on account of the infant victims in this case. It is not shown by the applicant, as to how much of the $60,000.00 would be for the estate of the deceased and how much would be for the injured victims. Only the defendant’s Notice of Payment into Court apportioned the suggested entitlement of each of the claimants. But we do not know if the plaintiff/applicant would follow that apportionment since he simply asks for the whole amount of $60,000.00 in his capacity as administrator of the estate of the deceased nor has he complied with Rule 2 of 0.24 so as to indicate that he accepts the whole sum in satisfaction of the plaintiffs’ claim. I have pointed these obstacles to show the difficulty in acceding to the plaintiff’s application as presented to the Court.

Rules of Court are designed to help in the attainment of a just resolution to the dispute before the court and proper compliance with them greatly assists the Court in achieving that end. Short cuts do not always work just as much as the indiscipline of indifference to the rules of procedure can lead to misconceived cause of action with no purpose served except to incur costs.

In the light of what I have said in this judgment, the first plaintiff’s summons filed on 22 March 2001 cannot succeed and it must be dismissed.

What I have said above has bearing on· the orders sought in the defendant’s first summons filed on 9 April 2001 in which the defendant seeks to have the first plaintiffs summons filed on 22 march 2001 and the supporting affidavit of Charles Ashley together with any order made thereon and any material on the Court file in this case relating to a payment into Court made by the defendant on 27 October 2000 be removed from the Court file and placed in a secure file pending the final determination of this action. The defendant also seeks to have a different judge assigned to try the action in the light of the judge who deals with these applications having knowledge of the materials disclosed by the first plaintiffs application as well as the defendant’s applications.

Having considered the matter, I feel the orders sought in the defendant’s first summons are sensible to grant. This would ensure that the judge who tries the action would be free from the knowledge of those matters already disclosed through these applications. I grant the orders sought therein.

The defendants second summons also filed on 9 April 2001 seeks leave nunc pro tunc to deliver interrogatories for answer by each of the plaintiffs and that the plaintiffs by themselves or by their representatives file answers on oath to the said interrogatories within 28 days. This order must be granted also to ensure the proper resolution to the dispute between the parties in this action. I grant the order sought therein.

The result is that the first plaintiffs summons filed on 22 March 2001 is dismissed.

The orders sought in the defendants two summons both filed on 9 April 2001 are granted.

With regard to costs, the defendant seeks to have the costs of the plaintiffs summons and the defendant’s cross-summons paid by the plaintiff’s solicitor personally and the costs of the defendant’s second summons to be paid by the plaintiffs. The Court’s jurisdiction in such a case is punitive and must be appropriately exercised. Its primary object is to protect the client who has suffered and to indemnify the party who has been injured and not so much to punish the solicitor. Myers -v- Elman [1939] 4 All E.R 484. Before the Court could exercise such punitive jurisdiction over a solicitor it has to be shown that the solicitor has been guilty of a serious dereliction of duty which in the present case must, in my view, include knowingly flouting or deliberately being indifferent to the applicable rules of procedure. I am little hesitant to so find in the present case as there is no evidence to show such a serious dereliction of duty on the part of the plaintiffs’ solicitor. The affidavit of the plaintiffs solicitor filed on 22 March 2001 may indicate an untoward contravention of 0.24, r.6 but many mistakes have been made by plaintiffs solicitors and which are not necessarily warranted costs to be met personally by the solicitor. Each case depends on its own circumstances.

In the present, I feel there is no occasion to justify making an order of costs against the plaintiffs solicitor personally. However, the defendant must have its costs occasioned by the three applications paid by the plaintiffs out of the money paid into court. The terms of the order on costs to be agreed by Counsel for the parties as indicated to the Court and if not agreed, to seek direction from the Court.

(Sir John Muria)
CHIEF JUSTICE