Bartlett v Hai Way International Ltd [2016] SBHC 124; HCSI-CC 244 of 215 (2 August 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 244 of 2015

BETWEEN: ALEX BARTLETT - Claimant

AND: HAI WAY INTERNATIONAL LIMITED - 1^st Defendant

AND: LEE KWO KUEN & COMPANY LIMITED - 2^nd Defendants

AND: ATTORNEY GENERAL
(Representing the Commissioner of Lands) - 3^rd Defendant

Date of Hearing: 1^st July 2016
Date of Ruling: 2^nd August 2016

Mr. B. Upwe for Claimants
Mr. G. Faiatoa for 1^st Defendant
Mr. W. Rano for 2^nd Defendant
Attorney General: No Appearance

RULING

Maina J:

Introduction

This is Category A Claim and is listed for trial for 3 days. When comes for the trial counsel for the Second Defendant raised few preliminary issues for the Court to deal with before the trial in the case. The preliminary issues are:

1. Late Preslie Watts is deceased and his sworn statement if used would be prejudicial;
   
2. The sworn statement of the Claimant sworn on 16^th October 2011 (Trial Book pages 195-274) was dealt with in HC/CC: No. 258 of 2007 is res judicata on the parties;
   
3. The First Defendant’s sworn statement by Ms Kuo Fung Chi filed on 25^th October 2012 was dealt with in HC/CC No. 258 of 2007 is res judicata on the parties;
   
4. The Claimant fail to appear in court for cross-examination by the Second Defendant on the claim and his sworn statements and this claim should be struck out and judgment be entered against the Claimant.
   

Brief Background

Briefly, this Category A Claim was filed by the JAK Legal Services for the Claimant. And so, the court records shows the Trial Books 1 and 2 was compiled and filed on 7^th April 2015 by them and before the Principal was elevated to the High Court bench. The Book 1 – Agreed Bundle of Documents pages 1 – 31 and Book 2 – Not Agreed Bundle of Documents pages 32 – 274.

Mr. Upwe filed a change of advocate on 8^th March 2016 for the Claimant. And the notice for this trial was issued by the Registrar’s office on 15^th March 2016.

Submission

Mr. Rano in his submission on the preliminary issues and beside his challenge for the admission of the Claimant’s statement sworn on 16^th October 2011 and First Defendant’s sworn statement by Ms Kuo Fung Chi filed on 25^th October 2012 said that simply the fact that the Claimant is not here or fail to appear in Court to be cross-examined on his claim, this claim should be struck out and judgment be entered against him. It is so as a notice was issued under the rules requiring the Claimant’s attendance at the trial for cross-examination on his sworn statements but he has fail to come to this hearing.

The Court

This is a Category A proceeding case and Chapter 2.3 of the Civil Procedure Rules 2007 classifies this type as a complex proceeding case, as defamation, a customary land claim, a commercial dispute, building or technical dispute, and claim for damages for death or personal injury. It is different from Category B proceeding case with claim for payment of specific sum of money the amount of which is worked out or capable of being worked out by calculation, and claim for interest. There is also other as Category C.

With Category A proceeding case, they are of complex nature and as required by the rules it needs case management directions with or as well as the Court to be cautious in dealing with them. This may also be for Category C.

Preliminary Issues 1, 2 and 3

On the preliminary issues 1, 2 and 3, they all relate to or concern the evidences that are disputed and contained in “Not Agreed Bundle of Documents pages 32 – 274” in the Trial Book 2. In all respect, they are or form part of the arguable case in this case.

The issue of res judicata as alleged for this case cannot be determined as a preliminary issue or at this stage as it is the core or question of act and law to be tried in the trial.

Any leave for sworn statement of the Claimant not to be used the trial is the discretion of the Court and will be considered when a proper application is made or at the appropriate time at the trial.

Preliminary Issue 4

While I accept that the notice and requirement under Rule 14.35 of the Civil Procedures Rules has been satisfied but it is discretion of the Court to grant such order if the Court thinks fit.

For the pleadings, there are sworn statements and documents pleaded by both the parties or the process has been completed and awaits the trial of the case to proceed.

It is for the justice and interest of the parties and the fact the pleadings with evidences to be considered are pleaded, this case cannot be struck out at this stage of proceeding or for non-compliance of the Rules. As earlier alluded, this is a Category A proceeding case with the complex nature and it not appropriate for consideration to strike out at this stage or to strike out for not cross-examining the Claimant.

To strike out for reason of failing to appear for cross-examining of the Claimant is not a good ground with this Category A proceeding case. The strike out is refused.

Trial Court Book and Adjournment

I noted the concerns by the counsels for the Claimant and First Defendant that they do not have the copy of the Trial Court Book for this trial. The counsels for the Claimant also seek an adjournment of the case on the reason that he does not have with him the Trial Court Book for this trial.

I accept the reason by the counsel for First Defendant that he had withdrew representation of this matter some time ago and returned the file to them. His appearance now is requested because of the trial of this case and notice to re-examine Ms Kuo Fung Chi filed on 25^th October 2012.

With regard to the counsel for the Claimant to seek an adjournment on the stated reason of no Trial Court Book with him for this trial, I will say that this is lame reason.

It is lame, because the trial book for this was complied and filed by the JAK Legal Services whom counsel Upwe took over to advocate for the claimant from. And he filed the change of advocate on 8^th March 2016 about 5 months ago. In a simple term, the Claimant’s counsel should have the case file with all the documents from the previous counsel for Claimant. And counsel Upwe as new counsel for Claimant had received the notice issued by the Registrar’s office on 15^th March 2016 for this trial.

An application for an adjournment on the reason by the counsel for the Claimant bears no merit and dismissed.

ORDER

1. Preliminary issues 1, 2 and 3 had been pleaded and so the matters are for trial;
   
2. To strike out for reason of ailing to appear for cross-examining of the Claimant is refused.
   
3. Trial for this case to proceed as listed or on the time available to the Court.
   
4. It will not be possible now to proceed with the trial as listed and the trial is now vacated with following directions:
   
   • (i) Claimant to photo copy 2 copies of the Trial Book at own expenses and a copy to be provided the counsel for the First Defendant;
     
   • (ii) Matter is adjourn for mention on 10^th August 2016;
     
   • (iii) Cost for the vacated trial is awarded to the Second Defendant on indemnity basis.
     

THE COURT

.................................................................
Justice Leonard R Maina
Puisne Judge