Suri v Mega Corporation Ltd [2003] SBHC 88; HC-CC 291 of 2002 (11 March 2003)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 291 of 2001

MARGARET LOTINTA SURI

V.

MEGA CORPORATION LIMITED

High Court of Solomon Islands
(Palmer J.)

Hearing: 10th March 2003
Judgment: 11th March 2003

A & A Legal Service for the Plaintiff
P.T. Legal Service for the Defendant

PALMER J.: This is an application by summons filed 21^st February 2003 for orders inter alia that the Defence of the Defendant’s be struck out and judgment entered for the Plaintiff on her statement of claim for want of compliance with the order by Consent entered on 7^th February 2003.

Background facts

The Plaintiff filed Writ of Summons and Statement of Claim on 1^st November 2001 for inter alia damages for breach of the Safety At Work Act. On 16^th November 2001 Defendant entered appearance. On 28^th November 2001, Defendant filed Statement of Defence. On 15^th February 2002, a consent order (first consent order) for directions was issued. One of the directions issued was for discovery to be made by affidavit of documents within 14 days from 18^th February 2002. Neither party complied. On 25^th July 2002, Plaintiff filed summons for inter alia an unless order to be issued against the Defendant. This was only after the Plaintiff herself had filed her list of documents on 22^nd July 2002. That summons came for hearing on 14^th October 2002. The Defendant did not appear. Court issued an unless order on said date. Unfortunately it was set aside for lack of proof of service of the summons on the Defendant.

The summons for directions was then re-listed for hearing for 5^th February 2003. Both counsels appeared and informed the court that they had agreed on consent orders, which would be filed shortly. On 7^th February 2003 the orders as agreed to was filed. The orders included an unless order as follows:

“1. That unless the Defendant files and delivers its List of Documents within 7 days, its Defence will be struck out and Judgment entered for the Plaintiff on her Statement of Claim;”

The order was signed and issued by the court on the same day. Defendant was thus required to comply within 7 days. Defendant has failed to do so.

The law on whether the order is a final order or an interlocutory order has been canvassed in Felix Ano Suva’ahu, George Kiriau Noa v. Omex Limited, Commissioner of Forest Resources and Others CC 173 of 2000, judgment delivered 19^th June 2001 per Kabui J. His Lordship adopted the test set out in Bozson v. Altrinchan Urban District Council [1903] UKLawRpKQB 44; [1903] 1 K.B. 547 at 548 per Lord Alverstone C.J.:

“It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then in my opinion, an interlocutory order.”

See also Peter Taniana & Others v. QBE Insurance International Limited CC 190 of 1998 Judgment delivered 26^th July 2001 in which the same test was adopted. In both cases, the court looked at the effect of the orders made.

It is my respectful view that when the terms of the consent order of 7^th February 2003 are considered, there is little room for saying that it was not intended to be a final order in its effect. It was clear the Defendant agreed on 5^th February 2003 when the parties appeared before this court to have its Defence (filed on 28^th November 2001) struck out and Judgment entered if it fails to file and deliver its List of Documents within 7 days. The effect of which would be to bring the dispute to an end. The Defendant knew what the consequences of non-compliance would be and agreed to it.

To have one’s Defence struck out has the same effect as if one has not filed any defence. In such circumstances, it entitles the Plaintiff to enter judgment against the Defendant.

It is also important to keep in mind that the Defendant was not without recourse. It could have come back to court and asked for an extension of time under Order 64 rule 5 if it felt it needed more time to pursue the matter before the time limit expired. It failed to do that.

In his submissions before this court, Mr. Tegavota asked this court to abridge time and accept his affidavit filed 10^th March 2003 in which he sought to provide explanation for the delay in complying with the orders of consent. Unfortunately, the acceptance or non-acceptance of that affidavit would make little difference to the effect of the order of 7^th February 2003. The effect of the consent order was clear. When the time limit, which fell on 15^th February 2003, lapsed the Defence was automatically struck out and judgment entered on the claim of the Plaintiff. There was no discretion for the court to exercise, it having been removed by consent of the parties in the way the order had been worded. This court therefore is functus officio in so far as any further dealing with that case is concerned. The only recourse open to the Defendant would be to challenge those orders by way of appeal.

In the circumstances there is little this court can do other than to formalize its orders of 7^th February 2003 in having the Defence of the Defendant struck out with effect from 15^th February 2003 and enter judgment for the Plaintiff on her Statement Claim with damages to be assessed. The Plaintiff is to have her costs as well.

Orders of the Court:

1. Order that the Defence of the Defendant be struck out with effect from 15^th February 2003.
   
2. Enter judgment for the Plaintiff on her Statement of Claim with damages to be assessed.
   
3. Plaintiff shall also have her costs.
   

The Court.