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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 1 of 1998
BURNLEY KIMITORA & FLORIE KIMITORA
v
HOME FINANCE CORPORATION OF SOLOMON ISLANDS
& JOHN IPO & JOANNA IPO
High Court of Solomon Islands
(LUNGOLE-AWICH, J)
Civil Case No. 1 of 1998
Hearing: 19/4/1999
Judgment: 20/4/1999
Mr. Kama for the plaintiffs
Mrs. Loa Tepai for the defendants
JUDGMENT
(LUNGOLE-AWICH, J): The first defendant, Home Finance Corporation of Solomon Islands, has applied to Court for order dismissing the plaintiffs’ case on the ground that after the close of pleadings the plaintiffs have failed to apply for direction orders within 14 days as required by rule 1 of Order 32 of the High Court (Civil Procedure) Rules. The second defendants have successfully applied for order striking out the claim against them so the first defendant is now the only defendant, I shall refer to it simply as the defendant.
The defendant states that it filed defence on 6.10.1998, the plaintiffs have not taken any further step so pleadings are to be deemed closed since. That would be over 6 months ago. The plaintiffs have not argued that pleadings have not closed. They simply gave reasons which they see as justifying their delay, and submitted that r1 of Order 32 is not mandatory, any party could take out summons for directions, the defendant should have done so when it realised that the plaintiffs had delayed in taking out summons for directions. They asked the Court to turn the hearing of this application into hearing for direction orders.
I accept that pleadings must in this case be deemed to have closed since the defendant filed defence on 6.10.1998. The plaintiffs have not informed the Court of any further pleadings they were or are now contemplating. They have now asked for direction orders, that in itself confirms that even the plaintiffs regarded pleadings as having closed. The provision in r1 of Order 32 is not merely a guide which parties may ignore as the plaintiffs seem to suggest, it is a requirement in the conduct of pleadings. Disregard of it may result in the defaulter being put on terms or having his claim struck out and the case dismissed or his defence struck out and judgment entered or he may be penalised to pay costs arising from the default even if the defaulter is finally the successful party in the case.
The plaintiffs say that they delayed because they were away in the Western Province attending to a timber logging operation. That is not a good enough reason to excuse their default. They were aware that they had a case in Court, they should have given clear instruction to their solicitor to proceed while they would be away. The reason is even weaker because it was the plaintiffs who brought the case to Court, they cannot proceed only when it is convenient to them, however inconvenient to the defendant. Moreover, on an earlier occasion they defaulted in filing amended statement of claim in time, although the Court excused them on that occasion.
I shall allow the defendant’s application, but I shall not order the relief of dismissal of the plaintiffs’ claim. The reliefs that I order are to put the plaintiffs on terms, and to order directions in the proceedings straight away. The plaintiffs will pay the defendants costs of this application within 30 days of today’s date otherwise the case will be dismissed. The costs are to be agreed or taxed by the Registrar. The defendant is to apply to the Registrar within 14 days in the event that costs are not agreed.
The direction orders that I make are:
1. Parties are to make discovery by lists within 7 days.
2. Parties are to inspect lists and may request further discovery within 14 days after discovery.
3. So far there appears to be no need for interrogatories, but parties may apply for leave to serve interrogatories.
4. The plaintiffs are to file bundle of pleadings and certificate of readiness within another 14 days after inspection at (2) will have closed.
5. Plaintiffs are to ask for date of trial either at the time of filing bundle of pleadings at (4) or within another 7 days from filing the bundle and certificate.
6. Compliance with these directions mean that the plaintiffs will at latest ask for date of hearing within 42 days of today’s date.
7. Costs of this application are granted to the defendant against the plaintiffs and must be paid within 30 days. In the event of failure, the defendant is to ask for listing for the plaintiffs to show cause why their case’ should not be dismissed because of default in complying with the order for costs, which order is mandatory.
Delivered this Tuesday 20th day of April 1999
At the High Court
Honiara
Sam Lungole-Awich
Judge
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