[1990] SILR 41

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 22 of 1990

SILVANIA PRODUCTS (AUSTRALASIA) LTD

v

JOHN WILLIAM STOREY

High Court of Solomon Islands 
Ward CJ
Civil Case No 22 of 1990

Hearing: 8 and 16 March 1990
Ruling: 19 March 1990

Civil Procedure - application to set aside - High Court (Civil Procedure) Rules, Order 69.

Facts:

The Petitioner filed an application by originating summons under 0.8 r. l of the High Court (Civil Procedure) Rules, seeking determination of a number of questions relating to the allocation and transfer of certain shares and consequential relief. The Respondent applied to set aside the application on the grounds that it was an inappropriate case for originating summons procedure.

Held:

1. That in view of 0.69 r.2, the objection taken by Mr Sullivan should have been made by summons or motion.

2. That although the consequential summons were outside the scope of 0.58, the primary relief sought in the form of declarations of rights fell within that rule.

3. That as the Respondents took fresh steps in the action in full knowledge of the defects relied on, in particular, by entering unconditional appearance, they no longer had a right to object to the jurisdiction of the court.

Cases referred to:

Moore v Gamgee [1890] 25 QBD 244
Lewis v Green [1905] 2 Ch 340

Legislation referred to:

High Court (Civil Procedure) Rules 1964, 0.58 r.1, 0.69 r. 2

Gotterson with Campbell for the Applicant 
Sullivan with Kama for the Respondent

WARD CJ: This is an application by originating summons for the determination of a number of questions relating to the allocation and transfer of certain shares and consequential relief. Mr Gotterson, for the applicants, brings it by originating summons under O.58 r.1 as the questions relate largely to interpretation of the articles and memorandum of association of the company.

Despite earlier proceedings on the summons at which the defendant was represented and took steps in the action, Mr Sullivan, for the respondent, now objects to the use of a originating summons.

The case he claims is one that is complicated and involves considerable dispute on the facts. Cross examination will be required of the makers of the affidavits and a number of other witnesses will need to be called. He argues that the questions themselves require more from the court than a bare determination of any question of construction of a written instrument. The matter, he says, is further complicated by the latest affidavit filed by the applicants three days ago and involving facts with which they do not agree. It is a case that will require discovery of many documents and inevitably, he feels interrogatories.

Mr Gotterson does not accept this is possibly unsuitable for originating summons procedure. Although he prefaced his address to the Court with the statement the case involved complex matters of fact and law and that the deponents would all be required for cross examination, he says this is a case that will be decided by the determination of the construction of the company documents.

Even if that is not so, he raises the delay by the defence in bringing this objection and suggests that, by O.69 r.2, the steps already taken by the respondent bar his application 

It is necessary to deal with this last point first.

The objection taken by Mr Sullivan is one that should have been made by summons or motion stating the objections. Mr Gotterson, generously, takes no point on that in order to have the matter resolved. However, as a result, it is not very clear just what is Mr Sullivan’s objection. His fundamental point is that the applicants have made a mistake as to their choice of originating process because procedure by writ of summons is more appropriate for a case such as this. As I listened to his objection, he seemed to be applying to set aside this summons with costs. However, when Mr Gotterson raised the limitation in O.69 r.2, Mr Sullivan suggested that his objection was not to an irregularity caused by the wrong choice of process. The relief sought in the summons is outside the jurisdiction of the Court because, under O.58, the Court can only make a declaration of rights. Thus the process is null and void and not governed by O.69 rules 1 and 2.

He then suggests that he is not applying anyway, to set aside under O.69 and asks that these proceeding be merely stayed.

If ever a case emphasised the wisdom of the requirements of O.69 r.3, this must be it. Am I now dealing with a case where because of a fundamental defect the proceeding is void and can be set aside as of right or an application because of non compliance with the rules because of the wrong choice of process or because too much is asked for an application under O.58? Alternatively what is the purpose or reason for the Court to stay the proceedings?

I shall endeavour to deal with these matters in turn.

First, I do not accept this is a case of an application ex debito justitiae. It may well be that the consequential orders sought in the summons are outside the scope of O.58 but the primary relief in the form of declarations of rights certainly does fall within that rule and I cannot regard the whole proceeding as null and void as a consequence.

This is an application to set aside for non compliance with the rules - however Mr Sullivan may attempt to dress it up -and, as such, is subject to rules 1 and 2 of O.69. I must, therefore, consider whether such an application may be allowed. 

In this case, the respondents have clearly taken fresh steps in the action in full knowledge of the defects they now claim; in particular, unconditional appearance was entered. There is ample authority under the old English O.70 that such an action by the respondents puts an end to the right to object to the jurisdiction of the court e.g. Moore v. Gamgee (1890) 25 QBD 244 and In re Jones v. James quoted therein.

Since then, affidavits have been filed and an application for an injunction heard at which no objection was raised by the raised.

The application to set aside the originating summons is dismissed with costs.

I do not need to consider the merits of Mr Sullivan’s further arguments although I have listened to them. As I have said already, had the requirements of rule 3 been fulfilled, the Court would not have needed to go that far. However, having heard the arguments of both sides, I feel I should suggest that counsel consider carefully the most suitable procedure.

Having read the affidavits I find it hard to accept Mr Sullivan’s bland statement that there is considerable dispute on the facts or that the matter will inevitably require extensive discovery and interrogatories. At the same time, Mr Gotterson’s suggestion the question posed are entirely matters of construction of written instruments also appears over-optimistic. Equally, if the orders sought are outside the Court’s power under O.58 some further action may be necessary.

I find the comments of Warrington J. in Lewis v. Green (1905) 2 Ch 340 are of assistance in considering such cases. Counsel, knowing the true nature of their cases, should consider whether these proceedings will, in fact, produce a satisfactory result.