Craig v Banks [2012] WSSC 49 (11 May 2012)

SUPREME COURT OF SAMOA

Craig v Banks [2012] WSSC 49

Case name: Craig v Banks

Citation: [2012] WSSC 49

Decision date: 11 May 2012

Parties:

CHESTER Businessman, and VETA CRAIG Businesswoman, both of Vaitele, Samoa

v

KAREN BANKS, of 65 East 600N Wellsville, Utah, U.S.A trading as agent for Focus on Children Inc, United States of America and FOCUS ON CHILDREN, a child placing agency formerly operating at Wellsville, Utah, United States of America.

Hearing date(s): 08 May 2012

File number(s): MISC 579/05

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:

G Stowers for plaintiffs

P Fepuleai for first defendant

Second Defendant – no appearance

Catchwords:

Words and phrases:

Legislation cited:
Stamp Duty Ordinance 1932
Infant Ordinance

Cases cited:
Penaia v Lands and Titles Court [2011] WSSC 84
Peniamina v Lands and Titles Court [2004] WSCA 1
R v Gough [1993] UKHL 1; [1993] 2 AER 724 at 737
Collier v Attorney General (unreported) 13 November 2001
Leleua v Lands and Titles Court [2009] WSSC 123

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

MISC 579/05

BETWEEN:

CHESTER Businessman, and VETA CRAIG Businesswoman, both of Vaitele, Samoa.

Plaintiffs

AND:

KAREN BANKS, of 65 East 600N Wellsville, Utah, U.S.A trading as agent for Focus on Children Inc, United States of America

First Defendant

AND:

FOCUS ON CHILDREN, a child placing agency formerly operating at Wellsville, Utah, United States of America.

Second Defendant

Counsels: Ms G Stowers for plaintiffs

Mr P Fepuleai for first defendant

Second Defendant – no appearance

Hearing: 08 May 2012

Ruling: 11 May 2012

ORAL RULING OF NELSON J

(Application to recuse)

1. The history of these proceedings so far as is relevant is as follows: by Notice of Motion dated 26 June 2005 the plaintiff owners of a rental property at Ululoloa moved to prohibit the departure from jurisdiction of the first defendant and other employees of Focus on Children (“FOC”) a US based adoption agency licensed and operating out of Utah in the United States of America. The plaintiffs alleged that FOC as tenant of its property caused substantial damage thereto in excess of SAT$180,000. The first defendant is a United States citizen and the plaintiffs claimed that she was absconding to avoid liability for the debt. Although the Motion was styled a Notice of Motion, there was no evidence it was served on any of the respondents to whom it was directed. One of whom was the present first defendant. By departure prohibition order of even date a Deputy Registrar of the Supreme Court issued the relevant orders against the first defendant and other employees of FOC. A bold step to take given that liability was asserted in the plaintiffs supporting affidavit as resting on an unstamped Lease Agreement dated 01 May 2003 between the plaintiffs and FOC.
2. By motion dated 01 July 2005 the first defendant and another US based employee (“Bartlett”) who had travelled to Samoa with the first defendant moved to revoke the departure prohibition orders against them alleging that they were not personally liable to the plaintiffs for the damage to the rental property. The Motion came before Vaai J on 04 July 2005 who ordered it be served on plaintiffs counsel. Plaintiffs moved by motion dated 07 July 2005 to strike out the defendants motion and also filed a statement of claim dated 07 July 2005 for recovery of SAT$95,000 in repair costs in respect of the rental property. Only the first defendant and Bartlett were cited as defendants to the claim. The defendants retaliated on 08 July 2005 by filing a motion to strike out the plaintiffs claim.
3. This whole shambolic mess goes before Vaai J on 13 July 2005. He revokes the departure prohibition order against Bartlett and adjourns hearing of the motion to strike out to the next morning to hear submissions from counsel. The plaintiffs proceed to file an amended statement of claim dated 13 July 2005 citing the first defendant as sole defendant. Vaai J hears submissions on the matter on 14 July 2005 and reserves a decision to 18 July 2005.
4. By written ruling of that date he finds existing “an unsatisfactory state of confusion which can only be resolved by the court hearing evidence in a substantive hearing.” He dismisses the first defendants motion to strike out.
   
5. On 18 July 2005 a number of other things occur: the first defendant pays into court the sum of $95,000 and moves to have the departure prohibition order against her revoked. She also files and serves a statement of defence and counter-claim. The latter claims $100,000 in damages for the anxiety, distress, embarrassment and inconvenience caused by the departure prohibition order. She alleges there was no basis for said order. She does not cite the Deputy Registrar of the court as a defendant to the proceeding.
6. On 20 July 2005 Vaai J revokes her departure prohibition order and the first defendant leaves the country and appears since then to have been able to enter and exit jurisdiction unimpeded by the plaintiffs.
7. By motion dated 05 August 2005 the plaintiffs sought to join FOC as a defendant to the proceedings. They file and serve a bare denial statement of defence to the first defendants counter-claim on 19 August 2005. And on 11 November 2005 Vaai J orders FOC be joined as a defendant to the proceedings.
8. Thereupon the proceedings went into limbo for some 5 years despite numerous requests from plaintiffs counsel to schedule it for mention before the court in order to set a date of hearing. Finally it was called on 31 May 2010 and adjourned to the week commencing 11 October 2010 for hearing. At callovers on 09 September 2010 it was further adjourned to the week commencing 13 December 2010 for hearing. No reason for the adjournment is noted on the court file. But at callovers on 09 December 2010 it was noted as ‘ready to proceed’ and was adjourned as per normal procedure to 14 December 2010 for hearing before me.
9. Thus this file first came before me on 14 December 2010. On that date counsels appeared and advised they were not ready to proceed. They sought an adjournment by consent which I readily granted. However having perused the file I raised with counsel three preliminary issues. Firstly that there was no proof of service on file confirming FOC had been served in terms of the courts order of 11 November 2005 joining them as a defendant. Second that the unstamped lease agreement on file as an attachment to one of the plaintiffs affidavits in earlier proceedings was not admissible pursuant to section 13(3) of the Stamp Duty Ordinance 1932. That section provides:

“13. Unstamped instrument in judicial proceedings – (1) Upon the production of an instrument chargeable with duty as evidence in any Court notice shall be taken by the Court of any omission or insufficiency of the duty thereon and if the instrument is one which may be stamped by [the Financial Secretary] after the execution thereof it may, on payment into Court of such sum as may appear to the Court to be the amount of the unpaid duty and the penalty (if any) payable on the stamping thereof, be received in evidence saving all just exceptions on other grounds.

(2) The Court shall detain the instrument and transmit it to [the Financial Secretary] together with the duty and penalty so received and the instrument shall thereupon be assessed and stamped by [the Financial Secretary] as if it had been presented for stamping in the ordinary course and the provisions of this Ordinance as to stamping of instruments by [the Financial Secretary] shall apply accordingly.

(3) Save as aforesaid no instrument chargeable with duty shall (except in criminal proceedings) be pleaded or given in evidence or admitted to be good, useful or available in law or equity unless it is stamped in accordance with this Ordinance.”

Since the lease agreement was an “instrument chargeable with duty” it needed to be stamped before the plaintiffs could rely on it in any proceedings before the court. Thirdly and finally I noted that the key to these proceedings was identification of the proper defendant. If the proper lessee was Focus on Children that was the defendant against whom the defendant had redress and the plaintiffs should consider whether they had a cause of action against the first defendant Karen Banks.

10. There was in my view no impropriety in myself as trial judge assigned to handle the proceedings bringing such matters to counsels attention and asking counsel to address what would normally be addressed in a pre-trial case management conference had such a system existed in this court. That remains my view. By consent the proceedings were adjourned to 24 January 2011 for mention.
11. On 24 January 2011 it was adjourned to 01 February 2011 for the plaintiffs to file the necessary proof of service and stamped lease agreement. On 31 January 2011 the lease was duly stamped and by affidavit of even date plaintiff Mr Craig confirmed service on FOC had been effected via Karen Banks on 08 December 2008.
12. On 01 February 2011 the plaintiffs indicated that they were still proceeding as against the first defendant and the matter was accordingly adjourned as a special fixture before me to 10 March 2011 for hearing. As this was a long outstanding litigation which had already been assigned two hearing dates the adjournment was made a ‘final adjournment’. Mr Fepuleai also made it clear that he was acting for the first defendant only. No application was made by plaintiffs counsel for judgment whether by default or otherwise as against the second defendant FOC who had been served in 2008.
13. At callovers on 02 March 2011 the case was confirmed for 10 March 2011 as scheduled. But there must have been some indication that the plaintiff Mrs Craig was ill as the file indicates that the court instructed plaintiffs counsel to provide a medical certificate if that proved to be the case on trial day. On 09 March 2011 plaintiffs counsel sought an adjournment and provided a medical certificate for Mrs Craig. The correspondence from plaintiffs counsel noted the adjournment was “to another date convenient to His Honour Justice Nelson and counsel for the defendant after 16 March 2011 noted in the enclosed medical certificate.” By consent the matter was accordingly adjourned to 11 March 2011 to set a new date of hearing. On that date it was adjourned again as a special fixture for hearing on 15 April 2011.
14. Hearing could not proceed in April as the Supreme Court had to give trial priority to election petitions arising out of the 2011 General Elections. Those hearings occupied all judges of the court. The proceedings were eventually re-scheduled for hearing on 05 August 2011.
15. By letter dated 29 July 2011 plaintiffs counsel wrote and advised Mrs Craig was overseas on medical treatment and that counsel would “forward the original medical documentation when they are at hand early next week. For this reason we cannot proceed to the hearing as scheduled and will be asking Justice Nelson to reschedule this hearing to October 2011.” No medical certification original or otherwise is on file as having been received but on 05 August 2011 the proceedings were adjourned by consent to the week commencing 12 December 2011 for hearing. At callovers on 15 December 2011 the case was notated ‘not ready to proceed’ and further adjourned to the week commencing 16 April 2012 for hearing.
16. At callovers on 19 April 2012 it was noted ‘ready to proceed’ and adjourned for hearing before me on 26 April 2012. On that day hearing could not proceed as a medical certificate certifying plaintiffs counsel was ill was produced by the member of her firm who appeared together with an application to adjourn as neither of the two other lawyers of that office including a senior partner of over 30 years experience in litigation was in a position to handle the matter. For the first time notice of an application to disqualify me from hearing this matter was flagged. Counsel for the first defendant reluctantly consented to the adjournment and plaintiffs counsel who appeared was advised the matter was adjourned on a ‘final adjournment’ basis to 04 May 2012 for hearing as this was a long outstanding litigation. She was also advised to have any application to recuse properly documented and served as soon as possible.
17. On 04 May 2012 the plaintiffs filed an application for me to recuse myself from hearing the proceeding on various grounds. As per their motion:

“(a) There is real danger of bias if Justice Nelson hears these proceedings.

(b) Justice Nelson may be perceived as being impartial due to the fact he was involved in considering and granting adoption applications of Samoan children which were supported by the first and second defendants.

(c) Justice Nelson may be placed in difficult position when hearing the evidence due to the fact he was involved in considering adoption applications of Samoan children which were supported by the first and second defendants.

(d) The first defendant filed an affidavit in support of every adoption application that was filed to adopt Samoan children to families in the United States supported by the second defendant.

(e) In order to grant the said adoption orders Justice Nelson would have been satisfied that the first defendant was a person of good character and the second defendant was an organization of repute and standing.

(f) That the issues to be discussed at hearing and determined by this court look at the operations of the second defendant and the function of the first defendant within that organization as Justice Nelson already has prior knowledge of the defendants this gives a perception of impartiality.

(g) The plaintiffs have a constitutional right under Article 9 to a fair and impartial hearing.”

18. The application to recuse was objected to by defence counsel who had appeared ready to proceed as that was a trial day. Plaintiffs counsel also sought an adjournment of the hearing as she had been mistakenly advised by her colleague who had appeared that 04 May 2012 was to mention the application to recuse. She also indicated she had not therefore advised the plaintiffs or their witnesses to appear and further that she wished in any event to make written submissions on the recuse application. Submissions that would not be ready until the following Monday at the earliest. I advised counsel of the correct state of affairs which was confirmed by Mr Fepuleai. Her adjournment was granted however because to rule otherwise would have been unfair to the plaintiffs. But costs of $500 on the adjournment were awarded to the first defendant who had appeared ready to proceed. The first defendant I note had also appeared on the original 26 April 2012 trial date. Hearing of the application to recuse was adjourned to Tuesday 08 May 2012 and it was ordered that the adjournment costs be paid by then and that the plaintiffs written submissions be filed and served by close of business Monday 07 May 2012. The adjournment costs have been duly paid as confirmed by first defendants counsel.
19. To label the history of this litigation protracted would be an understatement. The word “diabolical” is probably more appropriate. The callover system has not prevented this case being given eight (8) hearing dates, at least two of which were ‘final adjournments’. And we are at this stage still dealing with last minute interlocutory motions.
20. The latest debate revolves around the argument that because as a District Court Judge over 6 years ago I dealt with adoption applications lodged through FOC, that therefore there would be a perception of bias in favour of the defendants if I were to try the litigation. It is also alleged that there would be “a real danger of bias if Justice Nelson hears these proceeding.” This is said to arise out of the fact that in granting the aforesaid adoptions I would have been satisfied the first defendant was a person of good character and the second defendant an organization of repute and standing. The plaintiffs argue my presiding would be in breach of their constitutional right to a fair trial under article 9.
21. Certain factual misconceptions need to be cleared up. Firstly the first defendant did indeed file affidavits in support of FOC adoption applications but she did so as an office holder of FOC. As I recall it was a standard form affidavit that could have been filed by any director or senior employee of Focus on Children. I also recollect the local FOC representative was required by the court to also file a supporting affidavit. And the identity of this local representative changed from time to time over the years. Neither affidavit was in a nature of a character affidavit. The first defendants affidavit was along the lines of the sample produced at the hearing of this application by Mr Fepuleai.
22. There was no requirement or necessity in such applications for the court to be satisfied as to the character of any particular deponent. As in all such applications the affidavits in support are accepted at face value unless there is some reason to believe otherwise. Certainly no investigation was launched into the character of any particular deponent. The character of the deponents like the first defendant was not in issue.
23. The only affidavit investigated further by the court was that of the natural parents as the examining judge needed to be satisfied they fully understood the implications of their consent to the adoption. That practice grew out of a number of unfortunate instances where the natural parents subsequently returned to court seeking their child be returned alleging that their consent was “extracted” by FOC using various means. This led to the District Court introducing a procedure for the examining judge to personally interview the natural parents of every child sought to be adopted in order to be satisfied the consent of the natural parents was legitimately obtained and the choice to adopt out the child was a fully informed one.
24. FOC was not the only foreign adoption agency involved in such applications. There was at least one other I recollect called Journeys to or of the Heart. All requirements applied equally to that organization and others of a like nature. No favourtism or special treatment was accorded to FOC applications.
25. Secondly the paramount concern of the court in any adoption application is always the best interests and welfare of the child. In this regard reference should be made to section 8(b) of the Infants Ordinance :

“8. Conditions on which orders may be made – Before making such order of adoption the Court shall be satisfied – (b) That the welfare and interests of the infant will be promoted by the adoption.”

26. Nowhere in the legislation is there reference for the court to be satisfied as to the character of a deponent providing an affidavit in support. For the purposes of the assessment required to be carried out, the judge examines all material before him including character affidavits from persons of satisfactory repute who have known the applicant for a sufficiently acceptable period of time. The character of the applicants is enquired into because of section 8(a) of the legislation:

“8. Conditions on which orders may be made – Before making such order of adoption the Court shall be satisfied – (a) That the person proposing to adopt the infant is of good repute and a fit and proper person to have the care and custody thereof and sufficient ability to bring up, maintain, and educate the infant.”

But not the character of those who provide affidavits in support.

27. It seems either the plaintiffs fail to appreciate or do not want to acknowledge that these adoption applications were not lodged by FOC. They were facilitated by the adoption agency but were lodged by individual applicants. Who were the parties subjected to the scrutiny of the court in accordance with the above referred legislation. All applications were lodged in the name of particular individuals who were normally but not always a married couple.
28. Thirdly and as accepted by plaintiffs counsel in the course of her oral submissions, it was during my tenure as District Court Judge that a number of practice directions were issued under my hand to strengthen the procedures and requirements of adoption orders filed by FOC and sister organizations. These practice directions are a matter of public record and were sent to all law firms including the plaintiffs lawyers. Plaintiffs counsel recalls those. They were also as I recall issued over a number of years and the end result thereof was greater scrutiny of FOC and like applications. In particular Focus on Children because they comprised the bulk of the applications received by the court. The practice directions also reaffirmed that the review process was ongoing and counsel could expect further modification and variation as the need arose. That proved in fact to be the case as more than one practice direction was issued over the years.
29. In addition because of concerns over the large number of such applications I promoted in consultation with the then Attorney General and Ministry of Justice an amendment to the Adoption Legislation which was passed by Parliament in 2005 introducing severe restrictions on applications for adoptions by foreigners and in particular foreign adoption agencies. Again this is a matter of public record and could have been verified with the exercise of a little diligence.
30. As put to plaintiffs counsel in the course of her submissions these are hardly the actions of someone biased in the defendants favour. Neither in my respectful view would the reasonable Samoan aware of this background conclude that there existed a real danger of bias in favour of the defendants if I were to adjudicate on litigation involving them. It is more likely I was regarded in my time as senior and for many years sole District Court Judge as the bane of foreign adoption agencies such as FOC. A reputation I probably deserved.
31. Fourthly it is also a matter of record that could have easily been verified that I did not approve every FOC application. Many were rejected for different reasons ranging from defective documents to failing the primary test of not being in the best interests or welfare of the child.
32. The present applications suffers other fundamental flaws: again as a matter of record I took over handling of adoption matters in the District Court from my predecessor Justice Vaai. As first defendants counsel has confirmed he too handled FOC applications. This is the same Vaai J who adjudicated on the motion to strike out the plaintiffs claim, the first defendants application to revoke the plaintiffs departure prohibition order against her and the plaintiffs own application to join FOC as second defendant. Two of these three matters were contentious matters. Yet no objection to Vaai J presiding was made by the plaintiffs.
33. This case was first assigned to me for hearing on 14 December 2010. That hearing date was aborted by counsels to 10 March 2011 which in turn was aborted due to Mrs Craigs illness and then because of petitions to 05 August 2011. The 05 August 2011 hearing date was also aborted as Mrs Craig was represented to be overseas although no medical substantiation as indicated was ever provided. A hearing date on 12 December 2011 was cancelled by counsels at callovers and the substitute hearing date of 26 April 2012 was also cancelled due to plaintiffs counsel illness. That is a total of five hearing dates. Only on the morning of the sixth assigned hearing date of 04 May 2012 did the application to recuse surface. That may be because plaintiffs counsel was tardy in not giving effect to her instructions. Which according to her were issued after the first aborted hearing date before me. But the point remains that this application could have been made much earlier than this week. And could have been made before some five aborted hearing dates. The inference to be drawn is that it was sufficiently nor of any import to the plaintiffs to warrant an application being made. Until as Mr Fepuleai suggested in oral submissions I made certain observations as to whether the plaintiffs were suing the correct party. Mr Fepuleai has suggested it is that which has led to the recusal application.
34. It may be the plaintiffs have for whatever reason over-reacted to the courts enquiry as to identification of the proper defendant. The answer to that enquiry was obviously that the plaintiffs evidence and argument at trial would show that the first defendant was the tenant to whom the property was let by the plaintiffs and she is therefore the proper and appropriate defendant to these proceedings.
35. It seems the plaintiffs are like the plaintiffs in Penaia v Lands and Titles Court [2011] WSSC 84. Where Vaai J observed that as long as the decision went in favour of the applicant, the judge was fit to sit. When it went against the applicant the judge became biased and unfit. Here the plaintiffs succeeded before Vaai J in blocking the first defendants motion to strike out. Therefore no challenge was issued to his competency. Equally the plaintiffs were happy to have the departure prohibition order against the first defendant revoked by Vaai J as that had secured for them a deposit of the amount of the claim into the court law trust account. The learned judge was equally exercising unbiased judgment in granting their application to join FOC as a defendant. But when another judge came along and questioned their right to bring an action, a challenge is filed as to his partiality and competency to preside.
36. The serious delay and history in making this application also goes towards the bona-fides of the application and supports the notion that it is disingenuous. It is also a confused application because it claims some sort of relevant prior knowledge of the defendants on my part and in its suggestion that the existence or otherwise of an illegal adoption scheme operated and managed by the defendants would place me in a difficult position to find in favour of the plaintiffs. This is in effect implying that I would corruptly give judgment to the defendants even if the plaintiffs proved their case.

Relevant Law

37. The relevant law on bias is clear. The current test is that approved by the Court of Appeal in Peniamina v Lands and Titles Court [2004] WSCA 1 being the English one of R v Gough [1993] UKHL 1; [1993] 2 AER 724 at 737 stated in the following terms by the New Zealand Court of Appeal in Collier v Attorney General (unreported) 13 November 2001:

“It goes without saying that in the determination of rights and liabilities everyone is entitled to a fair trial by an impartial tribunal. (In Samoa this is enshrined in Article 9(1) of the Constitution). Where actual bias is shown or effectively presumed, the judge is disqualified. Where the focus is on the appearance of bias, the test is whether there was a real danger of bias on the part of the judicial officer in question in the sense that the judicial officer might unfairly regard with favour or disfavour the case of a party to the issue under consideration by the judicial officer. The test is objective, viewed through the eyes of the reasonable observer aware of all the relevant circumstances. It is not the subjective perception of the particular litigant. Speculative accusations of bias are not enough.”

38. This test has been applied in many subsequent cases by myself in Leleua v Lands and Titles Court [2009] WSSC 123 and Vaai J recently in Penaia v Lands and Titles Court [2011] WSSC 84. And in applying that test I said in Leleua:

“Judges have a duty to sit on the cases allocated to them. A duty that is sometimes not often well understood in this country. This duty should be carried out unless there is good reason not to. As stated in Saxmere:

‘Judges should not automatically disqualify themselves in response to litigants suggestions that there is an appearance of lack of impartiality. Judges allocated to sit in a case have a duty to do so unless they are disqualified. If a practice were to emerge of judges disqualifying themselves without having good reasons litigants may be encouraged to raise objections which are based solely on their desire to have their case determined by a different judge who they think is more likely to decide in their favour. Such a development would soon raise legitimate questions concerning breach of the rights of parties and would not be conducive to the ends of and administration of justice.’”

Analysis:

39. This application is not only factually misconceived but is woefully short of substance and conviction. The plaintiffs have failed to heed the warning expressed in Peniamina namely that the test to be applied is an objective one “viewed through the eyes of the reasonable observer aware of all the relevant circumstances. It is not the subjective perception of the particular litigant” and “speculative accusations of bias are not enough.”
40. In Peniamina it was furthermore stated:

“The view.... that it is for the litigant to decide whether the tribunal or court he or she appears before is the fair and impartial tribunal or court to which all are entitled is wrong and unworkable.”

41. It is not a matter left to litigants. If it were, in a small jurisdiction like ours there would forever be objections and cases would never get heard. The standard to be applied when perception of bias is argued is the objective standard of the reasonable observer fully conversant with all relevant circumstances. If in the eyes of such an observer there was a real danger of bias the judicial officer concerned must step down. But the danger must be “a real danger.” Not an imagined, fanciful or speculative one. There must be reasons justifying the holding of such a belief. In the language of Saxmere:

“It is not enough that the circumstances create a vague sense of disquiet.” And the onus is on the person who claims bias “firmly to establish that is the case.”

If he cannot then the judicial officer is bound to carry out the duties he has sworn to faithfully undertake namely to give judgment objectively and impartially and without fear or favour.

Decision

42. This is an application that should never have been brought. It lacks a proper basis, it has no reasonable foundation. The plaintiffs say they would have lodged a similar objection to District Court Judges Vaepule Vaai and Mata Tuatagaloa hearing these proceeding were it for some reason to be assigned to them, for the same reason that they have lodged this objection. Yet these very same plaintiffs have had proceedings before the District Court with no objection raised to either District Court Judge presiding. Those proceedings include the criminal case of Police v Chester Craig on charges of assault and armed with a dangerous weapon before Judge Vaepule Vaai in respect of which there remains unexecuted an outstanding warrant of arrest.
43. The reality seems to be that alleged by Mr Fepuleai. This application arises out of my comments made after the first aborting hearing date of this matter. And it represents an attempt to remove me from the equation because it rests on no sound basis or argument.
44. The result is long outstanding litigation has again been further delayed and the first defendant has incurred unnecessary costs in defending the application. The application should be dismissed. The first defendant is entitled to indemnity costs and I will hear counsel in relation to quantum.
45. In regard to the second defendant plaintiffs counsel indicated initially the plaintiffs objected to my presiding in that action as well. But when I pointed out that the second defendant has not entered an appearance in these proceedings and that the plaintiffs were entitled to move for a default judgment counsel not surprisingly promptly withdrew the plaintiffs objection. This only goes to reinforce the courts view already expressed.
46. In relation to the second defendant I note no appearance has been entered at any stage or steps taken to defend the action against them. The record shows they were properly served over 4 years ago. Judgment accordingly will issue in default based on the affidavits already filed by the plaintiffs as against the second defendant in the sum of $95,000 plus costs including the costs of overseas service as fixed by the Registrar.
47. These proceedings are further adjourned to 22 May 2012 at 10:00am for mention. Counsel for the remaining defendant is to file his application for costs within 7 days.
    

JUSTICE NELSON