Konia v Public Service Commission [2014] SBHC 123; HCSI-CC 493 of 2011 (15 September 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

MICHAEL KONIA

Claimant

AND:

PUBLIC SERVICE COMMISSION

Defendant

Mr. S. Balea for the Claimant.
No appearance for the Defendant.

Date of hearing: 13 August 2014.
Date of Judgment: 15 September 2014.

RULING
Apaniai, PJ:

1. On 15 May 2013, the applicant, Michael Konia filed a judicial review claim against the Public Service Commission in regards to his termination on 10 June 2010. The claim was struck out on 4 September 2013 pursuant to an order made by the court under rule 9.71 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules") for want of prosecution.
   
2. The transcript of the hearing on 4 September 2013 shows, however, that the reason for striking out the case was because of the failure by Mr. Martin Hauri'i, counsel for the applicant, and the applicant not appearing at that hearing. The transcript further shows that in striking out the claim, the court had taken into account the fact that Mr. Hauri'i had not appeared on a number of occasions previously when the case was called. For that reason, the claim was struck out and costs were awarded against the applicant.
   
3. In this application, the applicant seeks to set aside the orders of 4 September 2013 and to reinstate the claim. The application was filed by ASG Lawyers who have taken over the case from Mr. Hauri'i. Notice of the hearing on 13 August 2014 was issued to counsel for the parties on 2 July 2014. Counsel for the Public Service Commission did not appear despite having notice of the hearing date. I refused to adjourn the hearing. Counsel for the Public Service Commission has had sufficient notice of the hearing. No explanation was given for his absence.
   
4. The applicant has filed a sworn statement on 15 October 2013 in support of his application. In that sworn statement, the applicant appears to have laid the blame for the non-attendance at the hearing on 4 September 2013 squarely on Mr. Hauri'i. He said he was not aware of the hearing on 4 September 2013 because Mr. Hauri'i had informed him that the hearing would be on the 14 September 2013. He checked the date (14 September 2013) and found that it fell on a Saturday. He then contacted Mr. Hauri'i with that finding but Mr. Hauri'i assured him that the court do sometimes sit on weekends. On 13 September 2013, he attended at the court registry for confirmation that his case would be heard the next day. It was then that he was told his claim had been struck out for non-attendance by him and his solicitor on 4 September 2013.
   
5. Rule 17.55(a) gives the court the discretion to set aside an order at any time if the order was made in the absence of a party.
   
6. The sworn statement by the applicant clearly shows that Mr. Hauri'i is to be blamed for the non-attendance on 4 September 2014. No sworn statement was filed by Mr. Hauri'i in response to that of the applicant, but having seen the applicant in court, I have no reason to doubt the truth of the assertions against Mr. Hauri'i in his sworn statement.
   
7. The order striking out the claim was made on 4 September 2013. This application was filed on 15 October 2013. I am also satisfied there was no delay in filing this application.
   
8. I am satisfied this application should be granted and the claim filed on 15 May 2013 reinstated. The application is therefore granted. The claim is reinstated.
   
9. The order to strike out the claim is the result of Mr. Hauri'i's failure to perform his duties as a solicitor for the applicant. This application is the result of the striking out of the claim. Therefore, the costs of this application is to be paid by Mr. Hauri'i on indemnity basis to be taxed if not agreed.
   
10. Orders accordingly.
    

THE COURT

_________________________
James Apaniai
Puisne Judge.