Lagobe v Sina [2010] SBHC 60; HCSI-CC 168 of 2009 (20 October 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 168 of 2009

BETWEEN

JACK LAGOBE
Claimant

And

JOHN SINA and Others
First Defendants

And

JONATHAN DIVE
Second Defendant

And

JOHN MEKERONI and Others
Third Defendants

Mr Sullivan QC and Mr Kama for the Claimant
Mr Nori for the Defendants

Date of Hearing: 6th October 2010
Date of Judgment: 20th October 2010

Ruling

1. On 23rd July 2009 the Defendants filed an application (the main application) to have the claim in this case struck out. There has been some delay in setting the application down for hearing. There are a number of letters on file from various parties requesting the matter be set down for hearing. The case also involved contempt hearings and orders and this, for no logical reason, seems to have had the effect of delaying the hearing of the main application. In any event it came before me on 12th August 2010 for mention. Counsel for the Defendants was not present and so I dismissed the main application.
   
2. I am now dealing with an application for the order made on 12th August to be set aside and for the main application to be re-instated. It is to be regretted that this present application needs to be made at all. The reason why it is necessary is because of the practice, which appears to be coming more common place, of Counsel agreeing to re-order the court's time for their convenience without asking the court and then assuming the court will agree. The more often Counsel make that imprudent assumption the more often they will need to make applications such as this.
   
3. Having read Mr Nori's sworn statement, whilst I accept he had good reason for requiring the adjournment, I do not accept he went about obtaining it in the most appropriate manner. Bridge Lawyers is a practice with multiple partners and practitioners. There is no good reason that I can see why someone else from the firm could not have attended on 12th August. This was a hearing, albeit a motion day hearing, where a date was to be fixed for the applications by both Claimant and Defendants. It was therefore important for someone to attend who had proper and complete instructions and in particular, detailed knowledge of the availability of Counsel who was going to deal with the matter. Of course, that approach does not just apply to those firms with more than one practitioner, it applies to all who appear before the courts. With a sole practitioner firm, a properly instructed agent should appear. This is not just a question of common courtesy to the court, it is essential so that the court can make informed decisions and give appropriate directions.
   
4. Be that as it may, the application to set aside or reinstate is before me. Mr Sullivan QC says in order for the application to succeed the applicants must show that they have some prospect of success in the main application. Mr Sullivan addressed me at length on the issue and sought to show that there was no prospect of success in the main application. I accept the proposition, if it can be demonstrated that the main application has no prospect of success then I should not make an order reinstating it. I do not accept that Mr Sullivan has demonstrated the main application has no prospect of success.
   
5. In the circumstances I set aside the order I made on 12th August. I order that the application to strike out the claim, the main application, be listed for hearing at the motions day hearings on 4th November with a view to fixing a date. The costs of 12th August and 6th October shall be paid by the Defendants to the Claimant such costs to be taxed if not agreed. At the same time, that is on motion day, a date for the "show cause hearing" in the contempt proceedings shall be fixed. The show cause hearing will take place before or on the same day as the Defendants application. The Defendants' application cannot (and will not) proceed until they appear before the court and the issue of contempt is dealt with.
   

Chetwynd J