Grace v Alele [2024] SBMC 11; Family Case 51 of 2024 (24 July 2024)

IN THE CENTRAL MAGISTRATE COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

Family – Affiliation, Separation & Maintenance Case 51/2024

Between:
ISABELLA GRACE & ROSE WALE

And:
SCOTT ALELE

Date of Hearing: 10 July 2024
Date of Ruling: 24 July 2024

Mr. Ma’ungatonu. O for the Applicant
Non-appearance for the Respondent

RULING ON THE APPLICATION FOR THIRD-PARTY NOTICE

1. This is an application filed by the applicant’s counsel on 5 July 2024, seeking the court’s leave for a third-party notice to be served on the defendant’s mother, Ms. Jemima Maetia.
   
2. The application followed an ex-parte application filed by the applicant’s counsel on 27 May 2024 for interim custody of Leniya Louis Alele. I note interim custody was granted on the same date, and the court then adjourned the matter for inter-parte hearing. Unfortunately, the applicant unable to serve the claim and interim order on the respondent, since he already left to New Zealand for sessional work. Given that reason, the applicant’s counsel decides to file this application, seeking the court’s leave to have the respondent’s mother, third-party to the proceeding.
   
3. The issue for me to consider in this case is whether or not the court should grant leave to join Ms. Jemima Maetia, the respondent’s mother, third party to the proceeding?
   
4. The relevant rule that applies in this application is Rule 3.14 (a) & (b) of the Solomon Islands Courts (Civil Procedure) Rules 2007. It states;

“If a defendant claims a contribution, indemnity or other remedy against a person not a party to the proceeding, or another defendant, the defendant may file and serve a notice (a 'third party notice') on that person stating:

(a) that the defendant claims the contribution, indemnity or other remedy; and

(b) that the person, if not already a party, is a party to the proceeding from the date of service”.

5. The basis of this application is the issue of service. The applicant finds it difficult to serve the claim and interim order on the defendant, since he already left to New Zealand for sessional work. Therefore, counsel seeks the court’s leave to serve a third-party notice and join the respondent’s mother, third party to the proceeding.
   
6. I had the opportunity to peruse through the application and hear submissions from counsel and I am of the view, that counsel for applicant misinterpret the rule when applying it to the circumstances of this case. Rule 3.14(a) & (b) of the CPR 2007 applies to defendant who claim contribution, indemnity or other remedy against a person not a party to the proceeding, or another defendant. In doing so, the defendant may file and serve a notice (a 'third party notice') on that person stating that he claims the contribution, indemnity or other remedy and that the person, if not already a party, is a party to the proceeding from the date of service^[1].
   
7. It must note that in order for the defendant to do that, he/she must obtain leave from the court^[2]. Once leave is granted, then the third party becomes party to the proceeding^[3]. Further to that, joining a third party to a proceeding is discretionary. The court has the discretion whether or not to join a party as third party to the proceeding. This was affirmed in the case of Manehanetai v Sosimo^[4], where the court states;
   

“The question whether or not to join a Third Party is discretionary. The Court has discretion to refuse the application if it will result in embarrassment or delay in the plaintiff's action”^[5].

8. Here, counsel sought leave from this court to serve the third-party notice on the respondent’s mother, Ms. Jemima Maetia to be a third party to the proceeding. As I have stated earlier, Rule 3.14 (a) & (b) of the CPR 2007 provides for the defendant to apply for a third-party notice but not the claimant or applicant. The defendant in this case should be the one applying for a third-party notice if he/she claiming contribution, indemnity or other remedy against a person not a party to the proceeding. Therefore, I must say the application is misconceived.
   
9. In addition to that, I note the reason why counsel for the applicant applies to have the respondent’s mother, third party to the proceeding is because of the difficulty of service. I think counsel might confuse himself. The rule clearly provides for service. Should the applicant find it difficult to do personally service on the defendant, on the basis that he already went oversea for seasonal work, then counsel should seek court’s leave pursuant to Rule 6.32 of the CPR 2007^[6] to do substitute service, but not joining the mother as third party in the proceeding. Given the reasons I have stated above in my view, I think the application is misconceived and must be dismissed. No order for cost.
   

Dated 24^th of July 2024

THE COURT

..............................................
MR. MICHAEL FAGANI
Magistrate – First Class

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^[1] See Rule 3.14 of the Solomon Islands Courts (Civil Procedure) Rules 2007.
^[2] See Rule 3.15 of the Solomon Islands Courts (Civil Procedure) Rules 2007.
^[3] See Rule 3.16 of the Solomon Islands Courts (Civil Procedure) Rules 2007.
^[4] [1995] SBHC 38; HC-CC 224 of 1994 (12 June 1995).
^[5] Ibid, n 4.
^[6] See Rule 6.32 of the Solomon Islands Courts (Civil Procedure) Rules 2007.