Kuve v Ragoso [2001] SBHC 8; HC-CC 232 of 1999 (22 February 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 232 of 1999

MARLON KUVE

v

class=lass="MsoNormal" align="center" style="text-align: center; margin: 1"> HERRICK RAGOSO AND OTHERS

High Court of Solomon Islands

Before: F. O. Kabui, J

Civil Case No. 232 of 1999

Hearing: 19^th February 2001

Judgmeudgment: 22^nd February2001

Mrs. A. Tongarutu for the Plaintiff

Mr. A. Nori for the Defendants

JUDGMENT

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i, J): The trial in the Civil Cvil Case No. 232 of 1999 was set down for hearing before me at 9:30 am on Monday February 2001. The Plaintiff is Marlon Kuve. The 1^st Defendant is Herrick Ragoso representing Zerolyn Viuru, Milton Tona, Teddie Alu and Lorraine Boso. The 2^nd Defendant is Bava Development Company Limited. The 3^rd Defendant is Happy Islet Logging Company Limited. The trial did not commence as intended. Counsel for the 1^st, 2^nd and 3^rd Defendants (the Defendants) told me from the bar table that he had one preliminary matter to raise. He told me that he was filing a Summons and his supporting affidavit in Court seeking a number of Orders. He sought leave of the Court to do this. Counsel for the Plaintiff did not object and so I granted leave. He also told me that Counsel for the Plaintiff had filed a Notice of Motion seeking a number of orders also from the Court. He said these two matters should be dealt with first before the trial could commence. Counsel for the Plaintiff said this was so and would commence her Notice of Motion first. She said that her Notice of Motion was seeking amongst, other things, to strike out or dismiss the Defendants’ Notice of Appeal filed on 13^th November 2000. Counsel for the Plaintiff said she was calling oral evidence to support her Notice of Motion. Counsel for the Plaintiff has subpoened a number of witness to give evidence in Court. I pointed out to Counsel that motions generally would attract only affidavit evidence. (See Order 40 of High Court (Civil Procedure) Rules 1964 (the High Court Rules). On this basis I rejected Counsel’s application to call oral evidence since the object of the Plaintiff’s Notice of Motion was really to dismiss the Notice of Appeal which was on foot. At this point, Counsel for the Defendants objected in strong terms against the approach taken by Counsel for the Plaintiff and insisted that the Defendants’ Notice of Appeal be heard in the normal manner and the Plaintiffs Counsel could then respond to the submissions on the Defendants’ appeal. Counsel for the Plaintiff agreed provided she covered the grounds set out in her Notice of Motion.

The Notice of Appeal

As I have said, the Notice of Appeal was filed on 13^th November 2The appeal was against orders made by the Registrar of r of the High Court on 24^th July 2000. The Notice of Appeal are in these terms -

“NOTICE OF APPEAL

class="MsoNormaNormal" style="margin: 1">TAKE NOTspan> that the Defendants hereby appeaappeal against the decision of the Registrar dated 19th July, 2000 perfected on 24^th July, 2000 seeking an order to quash the said decision:

AND FURTHER TAKE NOTICE that the grounds of appeal are as follows –

1.  p; The ordrr for payment of $20,000 to the plaintiff out of the Trust Funds for the prosecution of his case amounts to an error of law;

2. &nbsp order to transfer r funds in the First, Second and Third

&nbbsp;& &nsp; &nsp; Defendants Solicitors Trust Account is not in the best

&nbbsp;& p; &bspp interest of clients in that it resulreducterespan>

&nb"> &nsp; &bsp; &nbssp; &&nsp;;&nsp; <yield on the deposits.

&pt">

AND THE APPELLANTS SEEKS THE FOLLOWING ORDERS:

(1) &nbbsp;& tsp; that the orf orf the Registrar datr dated 19^th July, 2000 and perfected on 24 July, 2000 be quashed;

(2) &ntsp; acis n io proceproceed to trial; and

class="MsoNormaNormal" style="text-ind-36.0argin <(3) the Plaintiff pays cohe cost of this appeal.”

th November. It was out of time by 3 months and 10 days. The appeal should have been filed by 31^st July, 2000. Solicitors for the Defendants did not apply for extension of time under Order 64, rule 5 of the High Court Rules. An attempt to extend time by an Amended Summons filed on 30^th October 2000 was not successful as that Amended Summons was never determined by the Court. Counsel for the Plaintiff did not seem to have been aware of this procedural error and failed to argue this point in her Notice of Motion. In fact, she never raised the point at all. This is a very strong point in her favour and yet she was not able to see it and argue it before me.

Instead, Counsel argued that t Notice of Appeal was an abuse of the Court process and must be struck out or dismissemissed. I reject that argument. Counsel could have argued that non - compliance with Orders 57 and 64 of the High Court Rules would render the Notice of Appeal void in terms of Order 69 of the High Court Rules. That is to say, there is no Notice of Appeal at all on foot as from the date of the Order of the Registrar for that reason of non - compliance. However, the

Plaintiff’s Notice of Motion did have that intention though not correctly expressed in the Notice of Motion itself. I think the Plaintiff’s Notice of the Motion does have some merit to the extent that it does raise doubts about the legal correctness of the Defendants Notice of Appeal although Counsel did not argue the point per se. In my view, the Defendants were hopelessly out of time. The omission on their part to extend time under Order 64, rule 5 of the High Court Rules renders their Notice of Appeal a nullity. This must be so because how else could it be said to be a valid Notice of Appeal? In my view, it cannot be said to be so. It was an invalid Notice of Appeal. The Notice of Appeal must therefore be dismissed. I do so accordingly.

The effect of this is that the Order made by the Registrar and perfected on 24 July 2000 remains intact. As far back as 6^th

th July 1999, Awich J. ordered that all monies received in connection with the logging operation were to be paid into a joint interest bearing account of the Solicitors of the parties. Solicitors for the Plaintiff took over the Plaintiff’s case from Steve Watt of the Public Solicitor’s Office on 3^rd May, 2000. By letter of that date, the Solicitor for the Plaintiff wrote to the Solicitor for the Defendants requesting details of the account holding monies being 7% of the gross proceeds of 45% received by the Defendants. The monies were being held in a trust account opened and separately operated by the Solicitor for the Defendants under an earlier arrangement agreed to by Patrick Lavery and Steve Watt of the Public Solicitors Office with the solicitor for the Defendants. This arrangement was based upon convenience and was not quite in accordance with Awich J.’s order made on 6^th July, 1999. The Solicitor acting for the Plaintiff at that time should have gone back to Court for the variation of the Order made by Awich, J. on 6^th July, 1999 to regularise that arrangement. It would have been even better if the new Solicitor for the Plaintiff sought that variation or if she did not agree, told the Solicitor for the Defendants in clear terms that she would not accept the existing arrangement and would stick to Awich J.’s order of 6^th July, 1999 and insist unconditionally upon compliance. She took neither of these steps and allowed the Solicitor for the Defendants to play the tune for her. In fact, the Solicitor for the Defendants must have taken it that the Plaintiffs new solicitor was quite happy with the arrangement entered into the Plaintiff’s previous Solicitors, Messrs Lavery and Watt of the Public Solicitors Office with him. This out of court arrangement enabled the Solicitor for the Defendants to wriggle out of the grips of the order made by Awich, J. on 6^th July, 1999. The request by the Solicitor for the Plaintiff for the release of $20,000 from the separate account held by the Solicitor for the Defendants was for the purpose of assisting the Plaintiff in the conduct of the Plaintiff’s case. As a result of failing to secure the release of $20,000 from the Solicitor for the Defendants, the Solicitor for the Plaintiff, filed a Summons on 8^th June, 2000 seeking the release of $20,000 and the transfer of the balance of the monies held in the separate account by the Solicitor for the Defendants to an interest bearing joint account to be held in the names of the Defendants’ Solicitor and Plaintiff's Solicitor. Solicitor for the Defendants, did not comply with the orders made by the Registrar of the High Court on 24^th July, 2000. The terms of the Order are-

1.  p;&nssp; The monies pres presently held by the Defendants Solicitor amounting to not less than $29,496.60 as shown in the Bridge Lawyers Statement of Account date 23^rd May 2000 shall within fourteen (14) days from the date stipulated herein be transferred into a Joint Trust Account held in the names o the parties Solicitors namely, ANT Legal Services and Bridge Lawyers;

2. That the sum ofum en TwThoy Thousand Dollars ($20,000.00) shall within fourteen (14) days from the date stipulated herein - under be paid from the funds referred to in paph o) of Order and to be paid int into theo the Plaintiff’s Solicitor’s Trust Account;

3. ;&nbssp; There iere is no order as r as to costs.

hese orders were appealed on 13^th November 2000, well out of time. Solicitor for the Plaintiff was not quick enough to point this out to the Solicitor for the Defendants earlier so that if the Solicitor for the Defendants failed to apply for extension of time, the Solicitor for the Plaintiff would have moved to strike out any appeal that was out of time. The Solicitor for the Plaintiff waited too long to act against the Notice of Appeal filed out of time by Solicitor for the Defendants.

Summons Filed by the Defendants on p>th February 2001, the date of Trial

In this Summons, the Defendants sought thesers –

1. The expenses of the parties incurredonnec th thal of matter be paid out of trust funds in the followingowing a amountmounts –

(a) to the Plaintiff the sum of $2,220; and

(b) to the First Defendants the sum of $10,400.

2.  p;&nbbsp;Thsp;The amou amounts herein to be paid from funds still held by the

;&nbssp; &nsp; ; First Defendant’s Solicitor in trust.

e> e>

"> 3. & p;&nssp&nbsp Thp; The balance f the remaining in the First Defendant’s Solicitor’s custody to be transferredhe Joint Trust Account of t of the Parties’ Solicitors within two days from today’s date.

4. &nbbsp; ose cf t of this apis application to be met by the Plaintiff.

Tpt">This Shis Summonummons seem to have arisen out of the following facts. By letter dated 19^th January 2001, Solicitor for the Defendants served upon the Solicitor for the Plaintiff copies of the Defendant’s witnesses statements ordered by the Registrar of the High Court on 6^th December 2000. The Solicitor for the Defendants also pointed out to the Solicitor for the Plaintiff, the Plaintiff’s failure to do likewise with the Plaintiff’s witnesses statements under the same order for direction made by the Registrar. The Solicitor for the defendants told the Solicitor for the Plaintiff that because of that failure on the part of the Plaintiff, the Solicitors for the Defendants would object to the Plaintiff calling those witnesses at the trial. The Solicitor for the Defendants also suggested that $10,000.00 each party be paid out of the trust fund and the balance would be transferred to a joint trust account. By letter dated 30^th January 2001, Solicitor for the Plaintiff wrote back to the Solicitor for the Defendants, accepting the $10,000.00 each party suggestion. The Solicitor for the Plaintiff also enquired whether or not the $10,000.00 in favour of the Plaintiff was part of the $20,000 ordered by the Registrar of the High Court. The response was by letter dated 31^st January 2001. The Solicitor for the Defendants said the $10,000.00 was not part of the $20,000.00. ordered by the Registrar of the High Court. By letter dated 9^th February 2001, the Solicitor for the Defendants told the Solicitor for the Plaintiff that any expenses for the witness would be restricted to the Plaintiff alone. By letter dated 14^th February 2001, the Solicitor for the Defendants told the Solicitor for the Plaintiff that the costs of the Plaintiff alone would be $2,200.00. The cost for 8 witnesses to be called by the Defendants was $10,240.00. These two amounts were set out in the summons above. In my view, I would reject this summons on the basis that the Registrar’s Order of 24^th July, 2000 remains intact following my dismissal of the Defendants Notice of Appeal.

lass="MsoNormal" sal" style="margin: 1"> The Plaintiff’s Notice of Motion

ass="MsoNormal" sal" sal" style="margin: 1"> One of the matters raised in the laintiff’s Notice of Motion was the request for an order to extend time beyond 19^tsup>th January 2001. Again, Solicitor for the Plaintiff, was slow to act. The date 19^th January 2001 was a Friday. The Solicitor for the Plaintiff could have applied to the Registrar by Summons to extend time under order 64 rule 5 of the High Court Rules. The Solicitor for the Plaintiff did not do so. The Solicitor for the Plaintiff waited until the 12^th February 2001. This was an error of judgment. The Solicitor for the Plaintiff should have applied to the Registrar separately by summons so that the Plaintiff Notice of Motion to strike out the Defendant’s Notice of motion would not be tangled up with the need to obtain extension of time quickly to regularise the Plaintiffs position. Even before me, Counsel for the Plaintiff was not forthcoming on this point. Counsel seem to be unsure about this. Counsel did however file an affidavit evidence to explain why Counsel was not able to fulfil the deadline of 19^th January, 2001. Counsel despite that, left this point unresolved and asked for an adjournment generally in view of the uncertainty of the arrival of the Plaintiffs witnesses in Honiara including the Plaintiff himself and the Solicitor for the Defendants not being available the week following plus the uncertainty over the Solicitor for the Defendant’s practising certificate. In the result, I would make the no order on this point. The Solicitor for the Plaintiff may wish to go back to the Registrar in the mean time for the purpose of regularising her position on this point.

The conduct of the case by both parties is confusideed. By a consent order for directions dated 12^th October 1999, discovery oery of documents were to be done within 28 days from 15^th October 1999. Inspection of documents was to be within 14 days thereafter. Trial to be set down for Gizo on a date to be fixed. By another Consent Order dated 24^th May 2000, inspection of documents was to be within 7 days from 24^th May 2000 and that trial he fixed for Honiara with a certificate of readiness to be filed. This was a variation Order. By letters dated 24^th, 25^th and 29^th May 2000, the Solicitor for the Plaintiff sought permission from the Solicitor for the Defendants to inspect documents. The Solicitor for the Plaintiff did not get response until 1^st June 2000 when the Solicitor for the Defendants said that the documents in their possession could be inspected during working owing that letter of 1^st June, 2000. The Registrar was also informed of this by the Solicitor for the Defendants by letter dated 1^st June 2000. By a short letter dated 19^th July 2000, the Solicitor for the Defendants told the Registrar that no inspection had taken place. The letter dated 24^th October 2000, the Solicitor for the Plaintiff told the Solicitor for the Defendants that she had not received the Letter of 1^st June 2000 until July the following month. The Solicitor for the Plaintiff said in her letter of 20^th July 2000 had received no formal reply from the Solicitor for the Defendants and therefore this delay was slowing down the progress of the case for the trial. The Solicitor for the Plaintiffs letter of 24^th October, 2000 was a response to the Solicitor for the Defendants letter of 23^rd October, 2000 addressed to the Registrar in which he said the Solicitor for the Plaintiff had failed to inspect documents. The Solicitor for the Defendants also said that he was ready for trial and gave notice that he would be filling a Certificate of Readiness for trial within 7 days. The response was a protest letter dated 22^nd November, 2000 in which the Solicitor for the Plaintiff pointed out to the Registrar that she had received the documents she had requested only on 14^th November, 2000 and said that the Certificate of Readiness should not be filed prior to the completion of the discovery. The Certificate of Readiness for trial was filed by the Solicitor for the Defendants on 13^th November, 2000. In the meantime, the Solicitor for the Defendants filed a Notice to procure documents on 12^th February, 2001 in which the Solicitor for the Defendants requested the documents to be produced within 2 days from the date of filing of that Notice. Provisional listing of the case for trial was set down for 19^th February, 2001 at 9:30 any. As I have said, the Solicitor for the Plaintiff, by this date, had yet to produce the Plaintiff's witnesses statements in compliance with orders for Directions made by the Registrar on 30^th January, 2001. The preparation for the trial of the action was mixed up with three interlocutory matters. The first was the continuing correspondence over the release of fund $20,000 from the trust fund as ordered by the Registrar on 24^th July, 2000. Second was the appeal by the Defendants arising from the Registrar’s Order of 24^th July, 2000 above. The hearing date had been fixed but the hearing had to be adjourned prior to Christmas. Third was the listing and hearing of the Defendants Amended Summons filed on 30^th October, 2000 seeking to stay the Registrar’s order of 24^th July, 2000 pending the Defendants appeal by the Defendants appeal and that the notice of appeal be treated as an appeal to a High Court ended summons sought an order for leave to appeal to a High Court Judge. Alternatively, the amended summons sought an order for leave to appeal our of the time and directions as to the future conduct of the case. As I have said, this Amended Summons was never heard. However, with the dismissal of the Defendants appeal, the way is now clear for the parties to concentrate on the final steps towards the re-listing of the action for trial. The purpose of my recording of the action on the part of each of the Solicitor is to enable me to decide where the cost should lie in these interlocutory matters. In my view, cost should be in the cause. My orders are that -

1. & p; &nsp; tsp; the Defendant’s Appe Appeal be dismissed;

2. &nbssp; the Defendan Summons bons be dismissed

<1"> 3.  p; &nsp; Cost be in the causen>>

class="Mso="MsoNormal" align="cent"center" style="text-align: center; margin: 1"> F. O. Kabui

Judge