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Medlin v Allinson [1996] SBCA 1; CA-CAC 277 of 1992 (9 October 1996)

COURT OF APPEAL OF SOLOMON ISLANDS

Civil Case No. 277 of 1992

MONIQUONIQUE MEDLIN

v

LESLIE ALLINSON

B: PalA

Hear>Hearing: 2nd October, 1996 - Ruling: 9th October, 1996

Counsel: Ael: A. Nori for the Applicant/Defendant - dclyffe for the Respondent/Plaintiff

RULING

The Applicaplicant seeks leave to appeal out of time, judgment having been entered against the defendant on 31st August, 1994, and the prescribed time period for appeal having lapsed on 30th September, 1994.

The Defendant's main argument for the failure to file an appeal within the prescribed time period and for the delay in seeking leave to appeal out of time was that he was not aware of the Judgment of this Court, until he was served with the application of the Plaintiff to have the Judgment of this Court registered in the High Court of Fiji on 25th June. 1996. It was only then that he took steps to have that judgment set aside.

On the other hand, it is the Plaintiff's contention that the judgment entered on 31st August, 1994, against the defendant was regular in that service was deemed to have been effected on the defendant through service on his Solicitor as contained in the High Court file records. I bear in mind that the question of regularity of service, is an issue that will form one of the substantive grounds on appeal, and that therefore it is not an issue for me to address in detail in this application, though it has been raised by Mr. Nori. For the purposes of this application, all I need to be satisfied with at this stage is that there are merits in the submissions of the defendant; that is that, they are not frivolous or vexatious.

The defendant's argument on the question of service of documents on the defendant was that they were defective, and consequentially, the orders obtained also defective. Mr. Nori has filed an affidavit in support on 30 July, 1996, setting out his reasons for saying so. In brief, these were that in 1993 and 1994, he had not renewed his practising certificate as he was in full-time employment as a Minister of the Crown, and therefore was not in a position to represent the defendant. The Plaintiff was aware of this and therefore should not have relied on the records of the High Court file to effect service on him as the advocate or agent of the defendant.

The rules governing service of documents are found in Order 9 Rule 14 of the High Court reads:

"Service of a notice, summons, order or other document, shall ... wherever it is practicable, be effected personally on the person to be served and service thereof shall be completely effected by the delivery of a duplicate or attested copy of any such notice, summons, order or document without the exhibition of any original ..."

Sub-rule 14(2) then goes on to read:

"Service on the advocate or recognised agent of the person to be served shall be deemed to be effective service on such person."

The Plaintiff submits that service on the defendant came within sub-rule l4(2), whilst the defendant seeks to argue that it did not, as he was not in practice as an advocate, and could not have acted as an agent as well in that he was working full-time as a Minister of the Crown. The issue whether he was an advocate or an agent within the meaning of sub-rule 14(2) is one of the substantive issues which the Court of Appeal may have to rule on. For the purposes of this application, I am satisfied that is not a frivolous or vexatious question.

As to the question whether it had been shown on the merits the existence of a defence with good prospects of success, it is clear that the main bone of contention relate to the terms of an agreement entered into between the parties sometime in July of 1991. This is a matter of evidence and one which should go to trial for proof I am not satisfied that this issue is frivolous or vexatious.

As to the question of delay, which ever way one looks at it, I cannot say that it was undue or excessive such that it would not be just to grant leave to file an appeal out of time. Mr. Nori had deposed clearly to the fact that in the period of 1993 and 1994, he did not regard himself as in practice and therefore could not have acted for the defendant at the said times even if he had been instructed. He also deposed to the fact that on or about 13 December, 1995, when he was served with a Summons returnable on 7 February 1996, he informed Plaintiff's Counsel that the defendant should be served personally as he had not had any contact with him for two years. So even if service was held to be regular, the element of delay in my view can be explained by the subjective conduct of Mr. Nori. In the circumstances it would be unjust not to allow leave to appeal simply because of default on the part of defendant's Counsel. On the other hand the evidence is clear that the defendant had not been served personally, until on or about 25th June, 1996, when he was served with a Notice of Registration of Judgment in the High Court of Fiji of the judgment obtained in the High Court of Solomon Islands. Shortly thereafter, the defendant through his Solicitor took steps to have that judgment set aside, culminating in this application for leave to appeal out of time. I am not satisfied that it can be said in those circumstances that there was undue or excessive delay. Leave to appeal out of time accordingly is granted.

ORDERS OF THE COURT

1) Leave to file an appeal out of time is granted.

2) Time is enlarged for fourteen (14) days with effect from date of ruling.

3) Costs of this application shall be borne by the Defendant.

ALBERT R. PALMER,
JUDGE OF APPEAL