Yam & Company v China United (SI) Corporation Ltd [2011] SBHC 33; HSCI-CC 54 of 2008 (18 May 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 54 of 2008

BETWEEN

YAM & COMPANY
Claimant

-And-

CHINA UNITED (SI) CORPORATION LTD
Defendant

Mr Radclyffe for the Claimant
Ms Tongarutu (not appearing) for the Defendant

Date of Hearing: 18th May 2011
Date of Judgment: 18th May 2011

Ruling

1. This case has been listed for trial today. A whole day has been set aside. This morning a letter was delivered to the Registrar of the High Court. It was from Ms Tongarutu. It said she was suffering from the results of a tooth extraction last week and asked to be excused.

2. I am unable to proceed with the trial today. This is unacceptable but I am at a loss to know what to do about it. Ms Tongarutu has failed to turn up and there is no one here from the Defendant Company. It is not the first time Ms Tongarutu has failed to appear in court. Certainly she has failed to appear before me on a number of occasions previously. I recently read a Court of Appeal judgment dealing with a case before that court when she failed to appear. The court castigated her for her attitude and reported her with a view to disciplinary proceedings being instigated. They found her behaviour to be unacceptable. No disciplinary proceedings have taken place. Indeed none have taken place against any legal representative. It is a disgraceful situation and allows legal representatives like Ms Tongarutu to treat the court contemptuously with impunity and free from any real consequence of their unacceptable behaviour.

3. She has inconvenienced Mr Radclyffe, she has inconvenienced the Claimant who has attended. She has also inconvenienced all those other litigants who are waiting patiently for their cases to be heard and who could have been heard today. She has also inconvenienced me.

4. Unfortunately I have to look at the reality. If I proceed today the Defendant will no doubt come back to court and ask that any judgment or order I make today be set aside. It would be very difficult to resist that application because the parties should not be prejudiced by the behaviour of their legal representative. If the conduct of the Defendant could be criticised that would be different. However it is not in the interests of justice to penalise parties for the conduct of their lawyers. This situation will arise again and again and will only cease being a problem when those responsible for dealing with disciplinary proceedings actually deal with them.

5. I do not know why this does not happen now. No one has been able to give me a sensible answer on that question. It is not only the dignity of the court that is offended. Comments have been made to me by members of the public to the effect that the public is rapidly losing faith in the honesty and integrity of the legal profession. The lack of resolve by those charged with disciplinary matters must end.

6. I have to do something today which allows the Defendants to have their case argued but at the same time protects the interests of the Claimant. I cannot do justice to this or any other case if I ignore the interests of all parties in a case. So, I must adjourn today but I will order the costs of today thrown away be paid by Ms Tongarutu personally. Those costs will be taxed on a standard basis if they are not agreed. I also make an order that once those costs have been agreed or taxed they can be enforced against Ms Togarutu personally.

7. As the Defendant Company has not turned up either, or rather because no representative of the Company has turned up, I will order that the Defence be stayed until a payment has been made into court equal to the claim. That is the sum of $61,600.00. That payment into court will abide the event. It may be the Defendant was misled by Ms Tongarutu's letter which was copied to them. Until I hear evidence to that effect the order will stand. The matter will be adjourned to 30th May 2011 at 9:15 in the morning. At that hearing I will, if necessary or required, review the orders I have made today. I will also fix a new hearing date for the trial.

Chetwynd J