Walalau v Dora [2010] SBHC 12; HCSI-CC 377 of 2009 (14 April 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 377 of 2009

BETWEEN

BROOK HUGH WALALAU
(Representing the Walalau Family Tribe)
Claimant

AND

HENRY RUDOLPH DORA
Defendant

Mr Tigulu for the Claimant
Mr Rano for the Defendant

Date of Hearing: 13th April 2010
Date of Judgment: 14th April 2010

Ruling

1. This is an application to set aside Default Judgment ordered and perfected by the Registrar on 13th November 2009. Two grounds are advanced by Mr Rano. First that the judgement was irregular and secondly that there were good reasons for the delay and that the Defendant has a defence on the merits.
   
2. The Rules[1] are quite clear on the time for service of a response and a defence. (Although it is not relevant for this application, they are also clear on the time for service of a claim.) Rule 5.37 is clear that if a claim was served on a defendant within 20 km by public road of the main Post Office of Honiara then a response must be filed within 14 days of the date of service unless a defence is filed within that time[2]. A defence must be filed within 28 days of service of the claim [3]. Obviously this does not mean that if a defendant serves a defence within 14 days (Rule 5.37 (a)) he has to file another within 28 days (Rule 5.37 (c). It is either within 14 days or within 28 days, any other interpretation would be a nonsense. What must be remembered is that the maximum amount of time allowed to file and serve a defence (if the defendant is served with 20 km of Honiara Post Office or a main Provincial Post Office) is 28 days from service of the claim.
   
3. If you then turn to Chapter 26 the Rules set out how time is reckoned. Rule 26.2 says that where a time of one day or more is to be reckoned by reference to a given day or event then the given day or event is not counted. In this case it means that service having been effected on 2nd October 2009[4] the defendant has 14 days from 3rd October 2009 to file and serve a response (unless a defence is filed within that time) and 28 days from 3rd October to file and serve a defence. I have emphasised the file and serve criteria under the Rules. The defendant did lodge a response on 15th October 2009 and, if it was served the same day, was within the time limits for a response. He would have had until 18th October to file and serve his response. He should have filed and served his defence by 30th October 2009.
   
4. It is suggested that the time for filing and serving a defence runs from the date of the response. This is not correct. The Rules, as I have said above, are quite clear that time for a defence starts to run from the date of service of the claim. There are different timescales set out in the Rules but they only relate to the place of service of the claim and are not relevant here. As stated above, by my calculations, the defence should have been filed and served by 30th October.
   
5. That being so the first ground of the application must clearly fail. The order for default judgment to be entered was made by the Registrar (as he was perfectly entitled to do[5]) on 12th November 2009 and perfected the next day. That is nearly 2 weeks after the deadline for the defence permitted by the rules. There is no other "challenge" to the judgment, the only irregularity put forward is that it was too early. Clearly it was not.
   
6. The second ground is that the delay was reasonable. From the sworn statement read at the application[6] it is said that an attempt was made to file a defence (on or about 13th November) but it was on a Friday and because Mr Rano was tied up in court he could not sign and/or deal with the defence. If the defence had been filed one or two days late I would agree that such a delay in those circumstances would have been excusable. However we know that judgment was entered nearly two weeks after the deadline for the defence so the evidence does not support the suggestion that there was a short and excusable delay.
   
7. As to whether the "draft defence"[7] shows a defence on the merits, I would have to say it does not. The defendant simply says that there was some vague agreement whereby he would borrow the chainsaw for some undefined period and pay some undefined sum for the use of it. When he is written to by the claimant (over a period of about a year) he ignored all letters because it was not part of this nebulous deal. There is no indication that he contacted the claimant and asked why letters were being sent claiming sums of money not due under the agreement. As for the misrepresentation alleged in paragraph 6 of the draft defence, it matters little who owned the chainsaw, it is clear that the defendant had the use of it.
   
8. In all the circumstances I can see no merit in the application to set aside the default judgment and I dismiss it. The defendant will pay the claimants costs of the application. Those costs, when assessed or agreed, to be added to the judgment debt.
   

Chetwynd J

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^[1] Solomon Islands Courts (Civil Procedure) Rules 2007
^[2] Solomon Islands Courts (Civil Procedure) Rules 2007 Rule 5.37 (a)
^[3] Solomon Islands Courts (Civil Procedure) Rules 2007 Rule 5.37 (c)

^[4] Sworn Statement as to service by Cecil Pohe filed 5^th October 2009
^[5] Solomon Islands Courts (Civil Procedure) Rules 2007 Rule 9.22 and the Note thereto
^[6] Sworn Statement of Alvin Pehu filed 16^th November 2009
^[7] Schedule 1 to the application to set aside filed 16^th November 2009