Inter Island Navigational Services v Attorney General [2015] SBHC 101; HCSI-CC 11 of 2015 (30 November 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTIONS

Civil Case No. 11 of 2015

BETWEEN:

INTER-ISLAND NAVIGATIONAL SERVICES
Claimant

AND:

ATTORNEY GENERAL
Defendant
(Representing the Accountant General and Ministry
of Culture and Tourism)

Date of Hearing: 23rd November 2015
Date of Ruling: 30th November 2015

Mr. N. Laurere for the Claimant
Mrs. R. Soma for the Defendant

KENIAPISIA, PJ:

RULING ON AN APPLICATION FOR LEAVE TO APPLY FOR DEFAULT JUDGMENT AGAINST THE CROWN

1. This is an application for leave to apply for default judgment against the crown ("the defendant"). Claimant filed the said application on 6th March 2015. The Claimant filed the application pursuant to Rule 15.12.22 of the Solomon Islands Courts (Civil Procedure) Rules 2007 ("the Rules").

2. The application was prompted by the defendant's failure to file a response or a defence within the time required by the Rules. Claimant's claim was filed on 19/01/2015. According to sworn statement of proof of service by Patterson Kenga filed 21/01/2015, the defendant was served with claim on 20/01/2015. Defence was due by 20/02/2015, or by end of February 2015, to be lenient with the defendant. It is now November 2015, almost 9 months later and still there is no defence.

3. Prior to hearing the application for leave, I also dealt with an oral application for adjournment from Counsel Mrs. Soma for the defendant. Counsel Soma sought adjournment because solicitor in charge of the file is away overseas and is yet to obtain instructions. Counsel Laurere for the claimant objected, saying that this is a simple application and had been adjourned on several occasions previously.

4. Court declined to adjourn the application further for the following reasons:-

1. That this is a simple application. It seeks leave only and then a proper application for default judgment will follow suit once leave is granted.

2. That the application was adjourned already on Several occasions: 2/4/15 – adjourned by Marie of Attorney General (AG) to seek instructions; 24/4/15 – adjourned by Soma of AG to hear from Accountant General; 30/4/15 – adjourned by Kii of AG, to seek instruction from Department of Tourism; 15/5/15 – Adjourned by Muria Junior to clarify issues with the claimant and on 28/5/15 – adjourned with direction orders perfected by Faukona J on 2/7/15. All aforementioned adjournments have one purpose in common and that is to give more time for AG to obtain instructions.

5. The adjournment on 28/5/15, was made with two directions. The first obliged the defendant to file Response to the application for leave. The second referred the application for leave to the Registrar for listing.

6. On the basis of the 28/5/15 two court direction orders, the defendant was aware of the application for leave. The defendant is represented in Court by Counsel Mrs. Soma – meaning defendant had notice of the application for leave. The Court noted that the defendant did not comply with order 1 of the 28/5/15, orders by Faukona J; in that the defendant did not file a Response.

7. As a requirement of the Rules, I find that the defendant had notice of the application for leave. And that notice was more than 7 days as discussed in paragraphs 4 and 5 above. The seven days' notice, is a requirement of Rule 15.12.22. Another requirement of the Rules is that; any information that the crown may require must be supplied by the claimant – Rule 15.12.20. Crown had requested the claimant to supply further information forming the basis of the claim[1]. Faukona J ordered claimant to provide documents. Court has record that the claimant did provided and served the defendant with those requested information[2]. Counsel Laurere further confirmed in oral submissions that the requested information was supplied to the defendant, as noted in footnote 2 below. At the last adjournment on 28/5/15, Counsel Kii said the defendant was still waiting for instruction. I sympathise with Counsels for the defendant. From my experience as senior counsel in the AG office previously, obtaining instructions from government departments is a difficulty. Be that as it may, I must grant leave to the claimant to ensure the case progresses and not stalled due to inaction by the defendant. The world is not closed to the Crown, because at the hearing of application for default judgment to follow this granting of leave, the AG can still oppose granting of default judgment. At this hearing Counsel Soma for the defendant did not make submissions on the merit of the application. Counsel chose not to make further submissions following her unsuccessful attempt to adjourn the application. The proper order on cost is for costs to be in the cause.

8. Accordingly the Court make the following Orders:

1. Grant leave for the claimant to apply for default judgment against the crown.

2. The claimant to file and Serve such application within 7 days.

3. Matter is listed for mention on 10/12/15, where further directions may be taken, if necessary.

4. Costs in the cause.

THE COURT

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JOHN A. KENIAPISIA
PUISNE JUDGE

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^[1] See order by Faukona J perfected on 7^th April 2015.
^[2] Counsel Soma on the 24/4/15, in seeking adjournment confirmed receiving the documents and sending the documents to the Accountant General. This is crystal clear from recorded notes in the court file.