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Koroi v Transwest Shipping Company Ltd [2001] SBHC 23; HC-CC 007 of 2001 (23 April 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 007 of 2001

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TRANSWEST SHIPPING COMPANY PANY LIMITED

class=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1"> High Court of Solomon Islands

Before: F.O. Kabui, J

Civil Case No. 007 of 2001

Hearing: 19th April 2span>

Judgment: 23rd April 2001

Defendant Mrs. M. Samuel for the Defendant

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(Kabui, J): By a Writ of Summons filed on 26th January, 2001, the Plaintiff claims against the Defendant, declarations, damages and costs in respect of the Plaintiffs termination f employment contract entered into with the Defendant on 28th February, 2001. The Writ of Summons and Statement of Claim were served by registered mail at the Defendant's address P.O. Box 291, Honiara in accordance with section 370 of the Companies Act (Cap. 175). The receipt for that registered mail was numbered 830 and dated 31st January, 2001. Advocates for the Defendant, Crystal Lawyers, filed a Memorandum of Appearance on 8th of March, 2001. This was done well beyond 14 days. The Defendant took no steps to apply for judgment on default of appearance though a Notice of Motion to that effect was filed on 7th March, 2001. The Solicitor for the Plaintiff, Mr. Apaniai, did carry out a search at the High Court Registry at Honiara on 2nd April, 2001 and discovered that the Defendant had filed no defence to the action within 14 days prescribed under Order 23, rule 6 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules). By an Amended Notice of Motion filed on 4th April, 2001, the Defendant now seeks that judgment be entered for the Plaintiff for the relief claimed in the Statement of Claim in default of the Defendant having failed to file its defence within the prescribed time limit of 14 days.

In response to the Plaintiffs Notice of Motion, the Defendant filed a Summons on 18th April 2001 seeking the following orders –

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The Plaintiffs application is based upon Order 29, rule 8 of the High Court Rules. Rule Rule 8 of Order 29 above states

“In all other actions than those in the preceding Rules of this Order mentioned, and those to which Rule 14 of this Order applies, if he defendant makes default in delivering a defence, the plaintiff may set down the action on motion for judgment, and such judgment shall be given as upon the statement of claim the Court shall consider the plaintiff to be entitled

Clearly, the application must be decided upon the Writ of Summons and the Statement of Claim. No other evidence is to admitted under this rule. The Plaintiff’s affidavit file on 7th March, 2001 and read out by his Counsel, Mr. Apaniai, is disregarded under this rule. The equivalent of Order 29, rule 8 above came under consideration in the Court of Appeal in England in Charles v Shepherd [1892] 2 Q. .D. 622. At pages 623-24, Lord Esher, M.R. said

We have consulted the membemembers of the other division of the Court of Appeal upon the question of the construction to be placed upon Order XXVII., r. 11, and we are of opinion, upon the true construction of that rule first, that the Court is not bound to give judgment for the plaintiff, even though the statement of claim may on the face of it look perfectly clear, if it should see any reason to doubt whether injustice may not be done by giving judgment; it has a discretion to refuse to make the order asked for; and secondly, that the expression, “such judgment as upon the statement of claim the Court or judge shall consider the plaintiff to be entitled to,” includes an interlocutory judgment, to be subsequently worked out, as well as a final judgment.”

Again, clearly, the Cooes have a discretion in applying the intention of Order 29, rule 8 of the High Court Rules depending upon the justice of the case. However, the Court will not reject any defence that is served after the expiration of the prescribed time limit for the delivery of defence (See my judgment in Lawrence Lae and Wille Karejama v Valahoana Company Integrated Development & Others (Civil Case No. 269/99). It is a fact in this case that the Defendant filed its defence and counter-claim on 18th April, 2001. Whether this document has already been served upon the Plaintiff has not been stated by the Defendant. In making up my mind in this matter, I cannot close my eyes to this fact and disregard the late filing of the defence on behalf of the Defendant. However, this is not the point being pursued in the Defendant's application before me. The Defendant is seeking extension of time under Order 64, rule 5 of the High Court Rules. The Plaintiff does not dispute the Court's power under Order 64, rule 5 above. Counsel for e Plaintiff, Mr. Apaniai, however argued that on the evidence before me, there could be no case ever for extension of time. In other ds, the evideevidence was bare in so far as explaining the reasons for the delay in not filing defence within time is concerned. Paragraph 5 of Mr. ’s afit filed on 18th April, 2001 is generaeneral in l in nature and does not explain in depth why there was the delay. It only says that the reason is that all the relevant information necessary for the formulation of a defence were kept in the Gizo Office. In my view, Mr. Hilly could have said more on this point in his affidavit. However, it may be that the Defendant's Solicitor drew up the affidavit and Mr. Hilly simply signed wit out knowing the relevance and the weight of its content. Such matters would have only been known by the Defendant's Solicitor. There could have been another affidavit by someone in the Honiara Office who received the registered mail containing the Writ of Summons and Statement of Claim and what he or she did to those documents. Such affidavit could have covered such matters as when these documents were sent to the Gizo Office, what date they were received by the Gizo Office, who instructed the Defendant’s Solicitor and what date that took place. In this way, one would know why there was a delay and whether such delay is reasonable in the circumstances or not. There seemed to be a hurry in the preparation of the Defendant’s application. Even the Defendant’s Summons had to be amended by the Registrar of the High Court because the Defendant’s Solicitor had forgotten to include an Order for abridgement of time r service of the Summons. The Defendant is asking for extension of time to f e its defence when the defence was already filed in Court simultaneously with t e application on the same date 18th April, 2001 and at the same time. How can he Court extend time when the defence had already been filed and had probably been served upon the Plaintiff? The need to extend time and the late filing o the defence would seem to serve the same purpose of ensuring that there being a defence at the trial and defeating the purpose of the motion for judgment f led by the Plaintiff. It is obvious that the Defendant came to Court with a double pronged attack to dislodge the Plaintiffs application though in a hurry and rather in a confusing way. This is rather different from Wiedenhofer v Tmmonwealth of n> Australia [1970] HCA 54; (1969-70) 122 C.L.R. 172 where the Defendant did exactly as the Defendant here did. The only difference is that the Defendant in that case had served the defence on the Plaintiff but had not filed it in Court. Gibb J. refused the motion for judgment and extended time for the late defence to be filed. In any case, I would have considered the merits of the Defendant’s application on its own if the Defendant had not filed its defence. Now that there is a defence in place though late in terms of the prescribed time limit, its merits must be considered also. Taking these two matters and considering them together, I would refuse the Defendant’s application on the ground that an extension of time would no longer serve any useful purpose on account of the filing of the defence on 18th April, 2001 by the Defendant. Extension of time is no longer an issue in this case. The issue that remains to be decided now is whether or not I should accept the Defendant’s defence. The authorities on this point are expressed by Bernard C. Cairns in Australian Civil Procedure, 1981 at pages 300-301 in the following words,

“In exercising its discretie court may take account ofnt of whether the defendant has a defence. This could arise from the late filing of a defence, in which case it cannot be ignored or again, it may be, as a matter of fairness, that the court considers the defaulting party should have a final opportunity to deliver a pleading. If so it may defer the entry of Judgment.”

This same quotation appears at page 4 of my ruling in Civil Case No. 269/99 cited above. I this case, the Defendant’s defence is neither frivolous nor a delaying tactic. An explanation was given for the delay. I accept the reason for the delay although the job of explaining the delay could have been better done by the Defendant’s Solicitor. There is another point. As I quoted also at page 4 in my ruling in civil case No. 269/99 cited above, Bernard C. Cairns in Australian Civil Procedure, 1981 above explains that the motion for judgment procedure is permissive only rather than being mandatory. In other words, the Plaintiff decides whether to proceed on a motion for judgment or to have the matter proceed to trial in the absence of a defence. There are times when a motion for judgment may not provide all the relief the Plaintiffs needs or may provide none at all. (See also Harold Tarasel v Edwin Kariuvi and Others Civil Case No. 262/97 at pp 3-4). Counsel for the Defendant, Mrs. Samuel, did point out that some issues in the Plaintiff's case would involve the interpretation of the provisions of the Employment Act (Cap.) and it would be premature for the Court to decide these issues before trial. I think there is merit in that argument. I feel that the Defendant should be allowed to defend its case at the trial of the issues in this case. Justice reigns. In the result, the Plaintiffs application is also refused. I feel that the costs in these applications be in the cause.

The orde of this Court

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F. O. Kabui

Judge


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