NELSON K/span>
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TRANSWEST SHIPPING COMPANY PANY LIMITED
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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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JUDGMENT
(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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Applicant bant be allowed an extension of time to file their
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Respondent’s application to enter judgment in default of Defence be stayed.
4. ;&nbssp; Asp; Aner Orer Orders
that this Chis Court deems fit to make.
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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
<
1. p;&nbbsp; &bsp;&bsp; The Plainpiffs
an>
Application is r is refused.
2. &&nsp;;&nspp; Tse Defendantndant’s application is refused.
 
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3. &nnsp;&&nsp;; Cspt besin thin the cause.
F. O.
Kabui
Judge
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