HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE NO. 190 OF 1998

PETER TANIANA & ORS

-V-

QBE INSURANCE INTERNATIONAL LIMITED

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)

HEARING: 12TH JULY 2001
JUDGMENT: 26TH JULY 2001

A & A Legal Service for the Plaintiff
Sol-Law for the Defendant

PALMER J.: By Summons filed 9th April 2001, the Defendant sought orders inter alia as follows:

“1. The Defendant have leave nunc pro tunc to deliver interrogatories for answer by each of the Plaintiffs under oath and that the form of those interrogatories be in the form of the interrogatories filed herein on 21st June 2000;

2. The Plaintiffs by themselves or, in the case of represented Plaintiffs as pleaded, by their representative as pleaded, shall file their answers on oath to the aforementioned interrogatories within 28 days of the making of this order;

3. In the event that any of the Plaintiff fails to comply with order 2 hereof then in respect of each defaulting Plaintiff, the Writ and Amended Statement of Claim shall thereupon be struck out and judgment shall be entered for the Defendant against that Plaintiff with costs;”

This Summons together with others came before His Lordship Muria CJ on 20th April 2001. Counsel Ashley for the Plaintiffs was present at that hearing. His Lordship delivered Judgment on 25th April 2001 and granted those orders. The 28 days specified in paragraph 2 of the order of the Court fell due on or about 23rd May 2001. The Plaintiffs failed to file answers to the Defendant’s interrogatories and accordingly the Defendant applied to the Court to have paragraph 3 of the Order of the Court activated. This was done by Order obtained on 22nd June 2001 in which the Writ and Amended Statement of Claim of the Plaintiffs was struck out and Judgment entered for the Defendant. Also on same date, the Court entered final judgment against the Plaintiffs.

The Plaintiffs now come to Court seeking by Summons filed 21st June 2001 orders inter alia to have a question of law determined on whether the limit of $60,000-00 was to be confined to all the Plaintiffs or to each of the Plaintiffs separately. By Amended Summons filed 9th July 2001 the Plaintiffs seek further orders inter alia to have the final Judgment entered on 20th June 2001 set aside and leave to be granted for extension of time to deliver answers to interrogatories. Mr. Sullivan objects to this on the ground that this Court is functus officio. He submits the Judgment obtained on 22nd June 2001 was final and not an interlocutory judgment. Rule 12 of Order 29 therefore does not apply to this case.

Final judgment or interlocutory judgment?

There are two views or tests on whether a default judgment can be a final judgment or not. The former was that whatever order had been made must finally have disposed of the matter in dispute - Salaman v. Warner [1891] 1 QB 734. The latter view, which appears to have been the test now adopted in other jurisdictions including Australia, was that finality in judgment depended on the effect of the order made as decided in Bozson v. Altrincham U.D.C [1903] 1 KB 547 at 548:

“It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.”

His Lordship Kabui J referred to both views and cases in his judgment in the case of Felix Ano Suva’ahu and Another v. Omex Limited and Others Civil Case Number 173 of 2000 Ruling delivered on 19th June 2001, at page 3 of his judgment. Kabui J. applied the second test in his judgment and dismissed the Plaintiff’s application to have the order of 5th October 2000 dismissing the Plaintiff’s action set aside. In that case, the Plaintiffs had by Consent Order dated 2nd June 2000 undertook to expeditiously prosecute their respective actions in the Malaita Local Court over their claims of ownership in custom over Tangiliu land and Walaihenue land. By Summons filed 19th August 2000 and order obtained on 5th October 2000, the First Defendant was able to have the Plaintiff’s Statement of Claim struck out and judgment entered against the Plaintiff. The Plaintiff was not present during the hearing of the Summons filed 19th August 2000 though he had been served. He then applied under Order 38 Rule 7 to have the order of 5th October 2000 set aside. His Lordship Kabui J. declined, applying the second test and finding that the order obtained had the effect of finality.

This case too in my respectful view is similar and would entail a consideration of the effect or purpose of the order obtained. I too take the view that the correct test to be applied is that contained in Bozson v. Altrincham urban District Council (ibid).

Order of 22nd June 2001

The Order of 22nd June 2001 entering judgment against the Plaintiffs had been obtained pursuant to the orders of the Court granted in the judgment of Muria CJ delivered on 25th April 2001. Those orders had been obtained after a contested hearing. There were a number of summons, which the Court addressed in that judgment. The first was the Summons of the First Plaintiff seeking release of the amount of $60,000-00 paid into Court by the Defendant to be paid to him on behalf of the Estate of Atan Tonga (deceased). His Lordship Muria CJ refused that application. One of the main issues identified by his Lordship also in the judgment under that Summons was the question whether section 5(2) of the Motor Vehicles (Third-Party Insurance) Act [Cap. 83] restricted liability to $60,000-00 in the circumstances of this case or not. That section limits liability to $60,000-00 “in the case of one accident or series of accidents arising out of one event”. The Defendant was of the view that its liability was confined only to $60,000-00 whereas the Plaintiffs contend it seems that that is not the case here where there were many victims involved in the accident, the subject of the claim here. His Lordship however left that issue for determination at trial. 

The other summons, which the Court dealt with, was the summons of the Defendant. That summons filed on 9th April 2001 sought orders inter alia for leave nunc pro tunc to deliver interrogatories for answer by each of the Plaintiffs and that the Plaintiffs by themselves or their representatives file answers on oath to the said interrogatories within 28 days. It should be pointed out that the interrogatories for answer by the Plaintiffs had been filed as far back as 21st June 2000. Paragraph 3 of that summons sought expressly a guillotine order:

“In the event that any one Plaintiff fails to comply with order 2 hereof then in respect of each defaulting Plaintiff, the Writ and Amended Statement of Claim shall thereupon be struck out and judgment shall be entered for the Defendant against that Plaintiff with costs.” 

Counsel Ashley represented the Plaintiffs in that hearing. His Lordship Muria CJ granted the guillotine orders after the contested hearing. His Lordship could have refused. By not doing so, in my respectful view he was making it loud, clear and plain to the Plaintiffs that compliance with those orders was paramount. The Plaintiffs too could have appealed that Judgment of 25th April 2001 and the orders granted requiring answers to be filed within 28 days, if they disagreed. They did not. The Plaintiffs were well aware of the effect of his Lordship’s orders and the consequences of non-compliance; dismissal of Plaintiffs claims. But they were not without recourse. Rule 5 of Order 64 of the High Court (Civil Procedure) Rules, 1964 permitted the Plaintiffs to come back to Court and seek extension of time for filing of answers if the dead line of 28 days could not be met. Well over 28 days lapsed and yet no application was made for extension until the Defendant took the step to enter judgment on 22nd June 2001 (2 months after the orders were made). The Plaintiffs were on notice all along and could have redeemed time by making application as soon as possible after the time limit had expired. They did not and the earliest they could come to Court was by Summons filed 9th July 2001 after judgment had been obtained. Is that judgment final or not? When the background facts are taken into account, it is clear in my respectful view that the order of 22nd June 2001 dismissing the Writ and Amended Statement of Claim of the Plaintiffs and entering Judgment was intended to be a final judgment. The only recourse now open to the Plaintiffs accordingly is to appeal to the Court of Appeal against the order and judgment of 22nd June 2001. The effect of this judgment means this Court is functus officio and unable to deal with the Amended Summons of the Plaintiffs filed 9th July 2001.

THE COURT.