HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 387 of 1995

Aerolift International Limited

v.

Mahoe Heli-Lift (SI) Limited and Others

High Court of Solomon Islands
(Palmer ACJ)

Hearing: 21st September 2001
Judgment: 25th September 2001

Bridge Lawyers for the First Defendant
Sol-Law for the Plaintiff

PALMER ACJ: I gave judgment in this case on 14th September 2001. Part of the Judgment dealt with the question of restrained funds (see last paragraph, page 39 of Judgment). I quote:

“At the beginning of this case certain funds were restrained by order of this Court (see Judgment of this Court delivered on 16th January 1996). The amount restrained according to that judgment was USD157,340-00. This case now concluded I am satisfied those funds rightly belong to Aerolift plus interest acquired from the deposit less taxes and any Government dues and costs. I order that the funds be released to Aerolift.”

On hindsight now, (we are all the wiser on hindsight), what I should have done was reserve the question on what should be done with the restrained funds to chambers and allow Counsels to make submissions before making any decision on them.

The First Defendant’s Application

Learned Counsel Mr. Nori for the First Defendant filed a summons immediately after delivery of the judgment on 14th September 2001 seeking orders inter alia, that the “. . . order of the Court made on 14 September, 2001 requiring payment of the sum of USD157,340 to the Plaintiff be amended and for the said sum to be paid to the First Defendant”. Mr. Nori submits that if the judgment of the Court is taken into account, the order of the Court requiring payment of the restrained funds to be released to Aerolift should never have been made, as it is illogical and inconsistent with the rest of the judgment. He submits therefore that it has been made in error and ought to be corrected by the Court before judgment has been perfected pursuant to Order 43 of the High Court (Civil Procedure) Rules, 1964 (“the Rules ”). 

The Plaintiff’s submissions

Learned Counsel Mr. Sullivan for the Plaintiff has raised a threshold issue as to the competence of this Court to deal with the Summons of the First Defendant. He does not take issue with the submission that this Court has power in a proper case to reconsider and vary its order [re Suffield and Watts (1888) 20 QBD 693(CA), 697 (Fry LJ) followed in Liliau v. Trading Company (Solomons) Limited (No. 2) [1983] SILR 40 (Daly CJ), hereinafter referred to as “Liliau’s Case”]. He submits however that according to established case authorities, there is no jurisdiction in the present case. Mr. Sullivan submitted that there are a number of situations in which an order may be varied. The first (i) one is where the order does not reflect the intention of the court as expressed in the reasons of the judgment – Eagon Resources Development Co Ltd v. Marabatu CC 220/97 Muria CJ 20.04.00 (“Eagon’s Case”). The second (ii) situation is where the variation sought deals with a matter not dealt with in the original judgment – Liliau’s Case. He submits that this is a variant of the first in that the court had earlier expressed no intention on the subject matter of the variation sought. The third (iii) situation is where the original judgment was based on authority that was subsequently over-ruled – Re Harrison’ Settlement [1995] 1 All ER 185 (CA). Mr. Sullivan submits this was a species of the first because the intention of the court was that the order follows the law and when the law (in that case as laid down by the Court of Appeal) was changed (by the House of Lords), the order became inconsistent with that intention. The fourth (iv) situation is where the Court has no jurisdiction (whether under Order 30 rule 11 or under its inherent jurisdiction) to reconsider its order. This is the situation where the order reflects the intention of the court, but it is said that the order is wrong for whatever reason – Shell Company (Pacific Islands) Limited v. Korean Enterprises Limited CC 323/97 Muria CJ 12.12.00. 

Mr. Sullivan submits that there can be no doubt that the order pronounced (at page 41) reflects the clear intention of the Court as expressed in the reasons (at page 39). It follows there is no jurisdiction to hear the application and the First Defendant, if it asserts that part of the judgment is wrong, must appeal.

The Issue

The issue is actually quite simple. I have been asked by the First Defendant to recall my order concerning restrained funds and to review it before it is perfected, on the grounds that he feels it is at odds with the substance or the rest of the judgment. I am not being asked to review the judgment and therefore the orders of the Judgment (a matter rightly for appeal). I am simply asked to reconsider an order made which the First Defendant says stands at odds with the Judgment. Naturally the Plaintiff opposes such application arguing that the order in its view is correct in any event.

Application of the law to the facts

The jurisdiction of the court to recall and reconsider its decision with regards to this case is vested in Order 43 rule 3 of the Rules (see Liliau’s Case (Daly CJ) at page 42 – 43), not Order 30 rule 11. Rule 11 of Order 30 deals with the correction of clerical mistakes and accidental omissions. Rule 3 of Order 43 gives the court in my respectful view much more than simply correcting clerical mistakes or accidental omissions. It gives the court power to recall an order that it has made but before perfection and have it reconsidered either on its own motion or on application. Of-course this discretion is to be exercised judicially. Mr. Sullivan has conveniently cited useful case authorities in which the courts had exercised such jurisdiction and I thank him for that. 

In Liliau’s Case, judgment had been entered for the sum of $19,512-62 for the plaintiff for general damages for injury occasioned to the plaintiff in circumstances for which the Defendant had been found to be responsible. At the end of the judgment, Daly CJ had invited submissions on the question of interest. Counsels made some submissions but nothing further was done and so his Lordship did not make any orders for interest. His decision thus was that “no order” be made for interest. On same day application was made for argument on the question of interest. After considering the authorities in Re Suffield & Watts, Ex parte Brown (1888) 20 QBD 693 and Re Harrisons settlement (1955) 1 All ER 185, he states:

“… I have jurisdiction to recall my earlier decision in relation to interest that there should be “no order”, and reconsider it.”

In Liliau’s Case, the court had made no order for costs because the parties had not pursued it. The intention of the court therefore was fairly clear. In spite of that the court decided to recall its decision, hear further argument and make a decision.

In Shell Company (Pacific Islands) Limited v. Korean Enterprises Limited (ibid), the whole of the judgment in that case had been premised on a mistaken fact. His Lordship Muria CJ had based his judgment on the existence of a licence regarding the use of the fuel pipeline but which was clearly contradictory to the agreed facts before him, that there was no licence covering the use of the pipeline. The plaintiff applied to have the matter corrected and for his Lordship to review his judgment. The First Defendant whilst conceding the point argued nevertheless that the proper course in any event would have been to appeal. His Lordship states:

“The Court’s power under that rule allows it to correct its judgments, orders or errors arising from any accidental slip or omission. This power is granted to the Court to enable it to make such judgments or orders which truly reflect the intention of the court when making such judgments or orders. It is not a power which the court can readily use whenever it feels like it after having been shown that its judgment or order was wrong. To do so in such circumstances would be to reopen the judgment or order and have another one made in its place.” 

In Eagon’s Case, (ibid) the court had made a mistake in the calculation of costs. In its original judgment costs had been calculated only from the 26th February 1998 to end of March 1998 thus omitting the other shipments up to April 1999. His Lordship states:

“The intention of the judgment of the court was to allow the plaintiff the costs incurred in connection with the extraction and sale of those logs following the order of 26 February 1998. Such costs indeed must relate to the extraction and shipments of all the logs which were shipped in thirteen shipments. If by mistake or error the intention had not been manifested in the judgment or order, this court, has the power to correct it, so as to carry out that intention. It can do so under its inherent jurisdiction or under Order 30 r 11 of the High Court (Civil Procedure) Rules.”

Samson Siamakana v. Pirivosoro & Others CC No. 253 of 1999, Judgment delivered on 31st January 2000 (“Siamakana’s Case”) was another case in which the court considered the question whether it had power to review its orders before entry of judgment. In that case the court had made final orders on 16th August 1994. These had been made by consent. Five (5) years later, the Defendants came to court seeking orders under Order 43 rule 1 to have the matter restored to the cause list for purposes of varying the orders of 16th August 1994. The court held that the matter had been finally determined for all purposes and that the only reason why judgment had not been entered was due to the inadvertent omission by the Registrar to have the judgment entered. The Court rejected the Defendants submission, in that it did not matter that the order had not been perfected. It was not a right of the Defendants to have the judgment reviewed simply because it had not been perfected. The proper course in that case would have been by way of appeal. Obviously after five years time for appeal had lapsed.

What was the intention of the Court in this Judgment?

The intention of the court in this judgment obviously is to ensure that its orders are consistent with the reasons given in the judgment. Where it is shown therefore or concern raised that the orders made might be inconsistent with part of the judgment and the orders have not been perfected, I take the view that it is open to this court in its discretion to recall its orders and have it reconsidered. There is a difference between reviewing the judgment of the court (as in Eagon’s Case in which the appropriate action to take is by appeal) compared to the present matter in which what is sought to be reviewed is not the judgment but the order of this court regarding restrained funds. I did make orders concerning funds restrained by this court but without giving proper opportunity to the parties to make submissions. The application of the First Defendant in reality asks to be given that opportunity. That it feels the order made by the court stands at odds with the rest of the judgment of the court. This obviously I feel is a matter rightly within the exercise of my discretion.

The decision whether to recall and review its order must lie with the court. In Liliau’s Case, the court had made an order that “no costs” be made for interest. On application the court recalled its order, heard further argument and reviewed its order. I see little difference with this case. This court had made an order, but on application, it is up to this court to decide whether there is basis for recalling its order for purposes of review. 

There are numerous cases in which orders had been recalled for reconsideration. In Re Harrison’s Settlement [1955] 1 All ER 185 (CA) a judge in chambers had made a decision based on a Court of Appeal decision in a similar case. Before the order was perfected, the House of Lords reversed the decision of the Court of Appeal. It was held in those circumstances that a judge was entitled to recall the order on his own initiative. At page 188 Jenkins L.J. said:

“Few judgments are reversed and it would be unfortunate if once the words of a judgment were pronounced there were no locus poenitentiae. The appellants make a nominal concession to meet this difficulty by saying that the judge retains seisin of the matter so long as the parties are before him, but that, once the parties have left the court and the next case has been called, it is too late because the parties may have already acted on his oral judgment. Our answer to this is that, although the judgment dates from the day of its pronouncement, it is not perfected until drawn up, passed and entered, and anyone who acts on it before hand must take such risk as there is that it will not be drawn in the form in which it was heard to be pronounced.

We think that an order pronounced by the judge can always be withdrawn, or altered or modified, by him until it is drawn up, passed and entered. In the meantime it is provisionally effective, and can be treated as a subsistence order in cases where the justice of the case requires it, and the right of withdrawal would not be thereby prevented or prejudiced.” 

In another case, Re Thomas [1911] 2 Ch. 389, 395 Warrington J. said;

“What is it that renders an order finally effective so that there is no longer any possibility of going back from it? It seems to me that it is the passing and entering of the order. It is the everyday practice that, until an order is passed and entered, the matter can be brought before the judge, and if a mistake has been made it can be put right. 

… I think that is the correct way of dealing with the matter for the reason that, until the order is finally passed and entered, it leaves open an opportunity of reviewing and re-considering what has been done.”

In the case of Re Australian Direct Steam Navigation Co., Miller’s Case (1876), 3 Ch. D. 661 Sir George Jessel, M.R. had given a oral judgment but before the final order was made and perfected, considered other material to which his attention had not previously been drawn. It was held he had power to review his order.

In Re Roberts [1887] W.N. 231, Kay J., regarded himself as free where an order had not been drawn up, whether it were an order made in chambers or in court, to stay the drawing of the order and re-hear the matter before making a final order.

In Millensted v. Grosvenor House (Park Lane), Ltd [1937] 1 All ER at page 736, the trial judge after delivering oral judgment and before it had been drawn up, reduced the amount of the damages awarded from £50 to £35. The Court of Appeal upheld the order. Farwell J., said at 740: 

“It is now well settled that, until an order made by a judge has been perfected, by being passed and entered, there is no final order, and, consequently, the judge may, at any time until the order is so perfected, vary or alter the order which he had intended to make” 

In Re Harrison’s Settlement (ibid), Jenkins L.J considered the hypothetical situation where the Judge felt bound not to recall his decision. I quote:

“But if the appellants are right, it must follow that, in the hypothetical circumstances, Roxburgh, J. would have been constrained to say in effect: “It is true that the House of Lords’ decision shows me to have been wrong in refusing these applications in limine, and that the orders which I orally pronounced before that decision was made known will, when drawn up, passed and entered in accordance with the language I then used, be plainly at variance with that decision. Nevertheless, I am irretrievably bound by what I then said. The orders must therefore proceed to completion, wrong as they are known to be, and you must be put to the expense of taking them to the Court of Appeal, who will certainly reverse them, and either proceed to hear you on the merits, or, more probably, remit the applications to me in order that I may do so.” We venture to think that, in the hypothetical circumstances we have stated, it would be more reasonable, and better for the parties, if the learned judge could say: “The orders which I orally pronounced are now shown by the House of Lords’ decision to have been wrong. But they are not yet perfected. I will therefore recall them and re-hear the two applications on their merits.” It is also pertinent to consider the position which would arise in a contested case in which a decision of the House of Lords, made known after the oral pronouncement of the judge’s order but before its completion by entry, showed the order as orally pronounced to have been founded on a misconception as to the law. If the appellants are right, then no matter how clearly it might appear from the House of Lords’ decision that the judge’s order as orally pronounced was erroneous, such order would have to proceed to completion and the dissatisfied party would be faced with the necessity of appealing as the only means, short of agreement, which might or might not be possible, of putting the matter right. We cannot think that this would be a desirable state of affairs.

It is important to remember that, in the ordinary way, the recall of an unperfected order results in a re-hearing at which all parties can present such further arguments as they may be advised having regard to the matter, whatever it may be, which is sought to cast doubt on the correctness of the order as orally pronounced.

… When a judge has pronounced judgment he retains control over the case until the order giving effect to his judgment is formally completed. This control must be used in accordance with his discretion exercised judicially and not capriciously. The learned judge in these two cases exercised discretion judicially in recalling his original orders, and there is in our opinion no ground for disturbing the orders finally made.”

When all the case authorities are considered it is my view that in the circumstances of this case I retain control until final orders had been perfected. Until that is done I can in the exercise of my discretion recall the orders I earlier made where there is doubt as to its correctness, hear further argument before making any final orders. I am satisfied in so taking that course of action neither of the parties would have been prejudiced in any way. The alternative would be for the First Defendant to appeal and raise the issues as to the correctness of that order before the Court of Appeal; a course, which would entail further and unnecessary delay.

ORDERS OF THE COURT:

1.	Dismiss threshold issue raised that the court does not have jurisdiction to recall its order and have it reviewed.

2.	Direct that the issue of restrained funds be listed in chambers for further submissions to be heard.

3.	Reserve costs.

THE COURT