Carey v Sumsum [2016] SBHC 207; HCSI-CC 290 of 2011 (16 November 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona PJ)

Civil Case No. 290 of 2011

BETWEEN: STEPHEN ALAN CAREY Claimant

AND: RON SUMSUM Defendant

Mr M. Pitakaka for the Claimant
Ms L. Ramo for the Defendant

Date of Hearing: 16^th November 2016

Date of Ruling: 16^th November 2016

APPLICATION TO REINSTATE A CLAIM

Faukona PJ: A claim was filed by the Claimant on 1^st August 2011. A defence was filed on 27^th August 2013 a year later. On the outset, I noted the duration since the claim was filed until 24^th June 2015, when the claim was struck is quite a lengthy period of time. The same can be said as to the lateness for filing of defence. However, the parties may have some kind of consensus, hence accepted the late filling of the defence and no application for default judgment was filed.

2.	The orders granted in favour of the Defendant on 24th June 2015, was a strike out pursuant to rule 9.72 (d) of Solomon Islands Courts Civil Procedure Rules. This particular rule states that the Court may strike out a proceeding without notice, if there has been no step taken in the proceeding for 12 months.
3.	Note the word “may” used in the rule, indicates the Court has wide discretion to exercise in any given circumstance. And of course in normal circumstances, the Court must exercise its discretion with reasonableness and as justice will serve.
4.	The issue is whether there are reliable excuses for the absence of the Claimant or his Counsel on the date of hearing, that is, 18th June 2015.
5.	Rule 9.72 sets out four circumstances where the Court may strike out a proceeding. In this case the strike out was premised on Rule 9.72 (d). That rule specifically emphasize that striking out can be done by the Court on two specific instances (a) even where no notice was issued to the parties (b) that the Clamant has not taken any step in the proceedings for 12 months. Administratively both situation can be compositely considered and not necessarily required to give notices to the parties attendances, but court can strike out knowing that the case had been lying idle and no steps had been taken to progress the case forward for 12 or more months.
6.	In this case, notices were issued to parties to attend Court on 18th June 2015 a motion day. The Counsel for the Claimant failed to attend, so the Counsel for the Defendant applied for striking out orders under Rule 9.72 (d). The Court exercise its powers and act by striking out the proceeding immediately.
7.	Relevantly Rule 9.72 (d) also refers to Rule 19.5 which the Court can strike out a proceeding if (a) no party appear, or (b) a defendant does, but the Claimant does not appear. Rule 19.5 is so clear about that a proceeding must be properly listed before the Court, meaning there must be notices issued to the parties otherwise the Court must resume to one of either (a) or (b) to strike out the proceeding. The relevant provision applicable in the circumstances of this case as I would perceive is Rule 19.5 (b) because Counsels were issued with notices to attend but the Claimant’s Counsel failed to attend.
8.	From submissions the Counsel advocate for the Defendant was concerned about the inactive of this case for a period running from 27th August 2013 to 18th June 2015, 2 years and 10 months.
9.	The excuses imparted by the Claimant’s Counsel for inactivating the case for that period premise on number of reasons. The first and for most is that there was a letter written to the Counsel for the Defendant enclosing a draft Consent order. The letter was written by the Counsel for the Claimant on 22nd July 2014. According to the Counsel for the Defendant the draft consent orders had been endorsed and sent back to the Counsel for the Claimant. The consent orders were never filed and were never served thereafter.
10.	In my personal opinion progressing the case forward must be done with the knowledge of the Registrar of the High Court. Once a claim is filed in the management of the case is a role profiled delegated upon the Court. To progress the case forward, activity done must be managed by the court. If the court is unaware of the consent order there was nothing in the file to act upon. The file is still empty from then and must be treated as idle and inactive. I must refuse to accept this reason for inactivating this case.
11.	The second reason relies on by the Claimant’s Counsel for not activating the case is that he was heavily involved in the Sumitomo case, which runs from 14th October 2013 to 1st July 2014. The case, which is HC CC No. 258 of 2014 reflects that the Claimant’s Counsel was heavily indulged in that case for that period. Nevertheless, after 1st July 2014, the Counsel for the Claimant still has time to activate the case, thought late. However, can be treated as reasonable excuse contributing to delay but does not provide full reasons for default.
12.	The third reason relies on for inactivation of the case is that the Counsel for the Claimant was traditionally forced to take compassionate leave because 4 of his uncles and cousins had perished in a treacherous sea saga when their canoe was sunk. Though no dates are mentioned I take judicial notice of this reason because it was a public knowledge in the Court at that time; in which the Courts were well informed of the incident.
13.	Because of heavily commitment in work and family obligations, has affected other matters which the Counsel for the Claimant had received instructions.
14.	I have refused to accept the letter by the Claimant’s Counsel, disclosing the consent order as letter intended to progress the proceeding forward. It has to be noted that the Court has the responsibility to manage its file. Any document filed to progress the case forward must come to the attention of the Registrar of the High court (RHC). If there is nothing in the file the proceeding cannot progress forward. Any correspondence or document endorsed and exchanged between the parties, without the attention of the court, cannot be treated as a document to progress the case forward and must not be accepted.
15.	In spite of that, it would be an error to consider the argument that to count from 27/7/2014 – 11/6/2015 is less than 12 months taken into account off days from 24th December to 14th January the following year. That argument may be valid if the Consent orders were filed and served. Since it was not filed it would be futile even to consider its usefulness and appropriateness.
16.	Likewise, it values nothing to consider that the orders made on 18th June 2015 on a motion day during the vacation week were invalid. The merit of that argument cannot divulge the inactivation of the case which was for more than two years after the defence was filed. The only argument I accept is that the motion day was held on a day during vacation week, which is unusual in the court programme. The Counsel for the Claimant was in Hong Kong at that time thinking that the Court will not sit on a motion day during the vacation week. The reality was, that motion day was supposed to be listed for 11th June 2015. The judge was not available, but may have consented to conduct a motion sitting the following week which falls on first week of vacation.
17.	As it appears, a week’s notice cannot be seen as sufficient, unless Counsels appear a week before and agreed on one weak adjournment. Where the problem is partly caused by the court that can verily deprive a party from attending particularly when reliance was premise on notice. In such situation, the Claimant in this case stands to gain benefit of such misfortune of management of the file.
18.	Connected to the unawareness of short notice changes and the fact that the case was heard an a motion day during vacation week, the Counsel for the Claimant diligent act sent an email to RHC, from Hong Kong that he was on overseas trip and that all his matters be relisted for another motion date.. The e-mail was sent on 16th June 2015, 2 days before the motion day. If the Court was aware of the e-mail on 18th June 2015, perhaps a proper consideration would have been made and done.
19.	In summary, there are three issues which have convinced me to decide that the matter should go to full trial.
	1.	The order was made under a wrong rule.
	2.	No sufficient notice was given altering motion hearing from 11th November to 18th November (which fell on vacation week), where no one expected to happen.
	3.	That the Court had failed to consider e-mail sent by the Counsel for the Claimant from Hong Kong, two days before motion day, that his cases be relisted. The email is clear and the Court should have adjourned to an appropriate date, which the Counsel is expected to attend; nothing was done despite reply by the listing co-ordinator on the same date.
20.	Apart from the facts alluded in arguments I perceived that the interest of justice is of paramount importance, and I therefore exercising my discretionary powers that the Court must determine the issues in this case and allow the Claimant a day in Court to prosecute his claim, see Ramodua V Saefafia[1]
21.	Besides that, adopting the precedent in Saru V Maelimani[2] is appropriate and relevant that a client must not suffer the Counsels inappropriate conduct resulting in striking out. I must therefore set aside the Court orders of 22nd June 2015 accordingly.
	Orders:
	1.	Striking out orders of 22nd June 2015 is hereby set aside.
	2.	Cost in the cause.
	The Court.

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^[1] (2015) SBHC 165, HCSI 10, HCSI – CC 403 of 2012 (1 April 2015)
^[2] (2013) SBHC 165, HC SI 58-CC 269 of 2013 (6 September 2013)