Dikei Construction v Attorney General [2016] SBHC 103; HCSI-CC 26 of 2015 (13 July 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 26 of 2015

BETWEEN:

DIKEI CONSTRUCTION
First Claimant

AND:

DUDLEY KOPU
Second Claimant

AND:

ATTORNEY-GENERAL
Defendant
(Representing Ministry of Health and Medical Services)

Date of Hearing: 28^th June 2016.
Date of Ruling: 13^th July 2016.

Mr. E. Toifai for the First and Second Claimants.
Mrs. R. Soma for the Defendant.

KENIAPISIA; PJ:

RULING ON APPLICATION FOR DEFAULT JUDGMENT

Introduction

1. First and Second Claimants (“Claimants”) filed a Category B Claim on 4/2/2015. Claim is for breach of contract and damages in the sum of $414,000.00. Claim was served on the defendant on 6/2/2015. There was no defence filed and it has been more than a year since service. Claimants filed an application for default judgment on 6/11/2015.
   
2. Application for default judgment came before me prior to 31/05/2016. I ordered that, there be application for leave to apply for default judgment since, defendant is the crown. This is the requirement of Rule 15.12.22. Application for Leave was filed. I heard application for leave on 8/06/2016 and granted leave, the same day.
   
3. And so today, I am dealing with claimants’ application for default judgment, filed 6/11/2015. Meantime, defendant had filed a defence out of time, on 21/3/2016 – more than a year since receipt of the claim.
   

Issues

4. The issues before me are: whether or not I should grant default judgment against the defendant and whether or not I should accept the defence filed out of time by the defendant.

Delay in filing a defence

5. Defendant’s reasons for not filing a defence on time are deposed to in a sworn statement (ss) filed by Ellison Gauwane. The defendant Ministry failed to give instructions on time, despite repeated requests from the Attorney-General. And it took some time to locate the file. It is public knowledge in the Court that the Attorney-General is faced with great difficulty in obtaining instructions in order to file a defence, whenever there is litigation against the State. I sympathise with Counsels appearing, from my personal experience as a former senior crown counsel in the Attorney-General’s Chambers. Delay in receiving instructions is a real problem. I would suggest that the Attorney-General workshop this problem, with Senior Officers of all government Ministries. An intended outcome from such workshop would be to appoint “contact persons” from each Ministry, whose job description would include furnishing instructions to Attorney General, for litigation against the Ministry.
   
6. That suggestion aside, I have to decide whether or not to accept the defence filed out of time. I am guided by the Rules. Rule 1.16 and 1.17 are relevant. Rule 1.16 says that “... failure to comply with these Rules..., is an irregularity and does not make a proceeding, or a document, step taken... in a proceeding, a nullity”. R.1.17 says “if there has been a failure to comply with these Rules..., the Court may: (d). declare a document or a step taken to be effectual”
   
7. I exercise my discretion to declare that the defence filed out of time is effectual. I make this order because my view is that the State should not be made to suffer, for the careless or ignorant inaction of the officers of the defendant Ministry.
   
8. The reasons for delay are not genuine. Nevertheless, the State should not be made to suffer for the ignorant or careless inaction by its officers. In line with the Rules, my view is that, this careless or ignorant failure by officers of the state, is an irregularity. The irregularity should not invalidate the defence already filed.
   

Arguable Defence

9. I am also satisfied there is an arguable defence as per the defence filed out of time. It is at Exhibit EG1 of the ss by Ellison Gauwane filed 16/06/2016. Defendant says in defence, that it had lawfully terminated the contract under Clause 15.1 of the contract. This is the arguable defence that must be investigated at trial.
   
10. There is yet a further reason; I must allow this case to proceed to full trial, in view of the nature of this claim (public tender, contract and termination by the State). In determining whether or not to grant default judgment, Court must have regard to the nature of the claim.^[1] Public always complains about contract awarded by the State. Public often perceived the tender, award and termination of contracts by the State as corrupt. It is therefore important, that the “Award” and “Termination” of this contract be fully investigated at trial, to clear any doubt about perceived corrupt dealings by the officers of the government.
    
11. Orders of the Court are:
    

11.1 Default judgment application filed 6/11/2015 is hereby refused.

11.2 Defence filed out of time by the defendant on 21/03/2016, is hereby declared effectual.

11.3 Pleadings shall be brought to conclusion soon.

11.4 Costs are ordered against the defendant on indemnity basis.

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Sukumaran & Others –v- Pillai & Others – CC: 396 of 2012 by Apaniai J.