HIGH COURT OF SOLOMON
ISLANDS
Civil Case No. 287 of 2001
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AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED
v
CHARLES ASHLEY
TRADING AS A & A LEGAL
SERVICE
(A FIRM)
AND JAMES APANIAI AND JOHN
HAUIRAE
TRADING AS A & H LAWYERS
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High Court of Solomon Islands
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1">
Before: Frank O. Kabui, J
Civil Case No: 287 of 2001
Date of Hearing: 28th
November 2001
Date of Judgment: 04th
December 2001
Mr. A. Radclyffe for the
Plaintiff
Mr. C. Ashley for the 1st
Defendant
Mr. J. Hauirae for the 2nd
Defendant
JUDGMENT
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(Kabui, span>
By Writ of Summons and Statemeatement of Claim filed on 30th October
2001, the Plaintiff claims contributions to the extent of $76,232.17 from
the 1st and 2nd Defendants as joint tortfeasors or in
the alternative, the sum of $76,232.17 being monies had and received by the
1st and 2nd Defendants to the use of the Plaintiff.
The Plaintiff also claims interest and costs. The 1st and 2nd
Defendants have each filed a conditional appearance. In the meantime, the 1st
Defendant by Summons filed on 5th November, 2001, seeks the
following orders -
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1. That the Plaintiffs Writ
and Statement of Claim be stru struck out under rule 4 of Orders 27 as disclosing
no cause
of action and/or as frivolous or vexatious; and
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2. That the Plaintiff pays
the 1st and 2nd Defendants costs;osts; and
3. Any further or other
orders the Court deems fit to make.
The Facts
The 1 and 2nd
Defendants were the Solicitors acting for the parties in C in Civil Case No. 103
of 2000. The 1st Defendant was the Solicitor for the Defendants
whilst the 2nd Defendant was the Solicitor for the Plaintiff in
that case. On 2nd February 2001, the High Court made an order to
the effect that proceeds or part of the proceeds of the sale of 1200 cubic
metres of round logs to be exported by the Defendants in Civil Case No. 103
of 2000 above valued at USD 96,000 or SBD
484,000.00 be not released but
paid into an interest bearing deposit to be held in the names of the
parties’ Solicitors
until inter parte hearing or until further order of the
Court. The Court Order was served on the ANZ Bank on 5th February
2001 as a result of which Account No. 4114628 was opened. The ANZ Bank then
paid into Account No. 4114628 the
sums of SBD 27, 414.36 on 5th
February 2001 and the sum of SBD 48, 817.81 on 6th February 2001.
These payment were made by the Bank in the belief that the monies were part
of the proceeds of the sale
of logs referred to in the Court Order. The
monies from which these payments were made were kept in Account No. 4057373
belonging to Ocean Trading Company, the 4th Defendant in Civil
Case No. 103 of 2000 above. On 2nd February 2001, Account No.
4057373 had in it $28,397.33 plus $150,000 deposited on that same day being
monies supplied
by Pan Pacific Parts Ltd. Ocean Trading Company then
complained to the Bank that the sum of SBD 76, 232.17 were not monies
derived from the sale of logs referred to in the Court Order and demanded
that the sum be reimbursed to Account No. 4057373.
The Bank has done that
but now seeks contributions from the 1st and 2nd Defendants as
tortfeasors or as monies received by mistake and must be paid back to the
Bank.
Conduct by the Bank
The ANZ Bank has admitted
negligence for its part in this case. Its liability for negli has now
been met by t by paying
back into Account No. 457373 the sum of SBD76,232.17. The
Bank must have obviously acted under pressure from the Solicitors
of Ocean
Trading Company who pointed out to it that what it did could amount to
negligence or conversion of their client’s
monies. The Bank now sues the 1st
and 2nd Defendants for contributions on the basis of its
negligence or in the alternative, sues for monies had and received by the
1st
and 2nd Defendants to the use of itself.
The Defendants’ Case
The first objection to the
ntiffs Writ of Summons and Statement of Claim is that thosethose documents do
not disclose a
reasonable cause of action under Order 27, rule 4 of the High
Court (Civil Procedure) Rules 1964 (the High Court Rules). The
second
objection by them is to call those two documents as constituting an action
that is frivolous or vexatious.
The Law
As regard first objection,
I would repeat the remarks I made in the case of Mary Chow v Attv Attorney -
General (Civil Case No. 127/2000). At page 2 of my ruling in that case,
I said,
...“An acmay be
terminated for defective pleadings on two grou grounds. The first is when the
pleading discloses no cause
of action. The second is when no defence is
disclosed. This can arise in two ways. First is as above stated. That is to
say, there being no cause of action or defence disclosed in the pleadings.
Second is where the pleading is so badly drafted
that the facts are not
sufficiently stated. In cases where the pleadings are so badly drafted,
amendments can cure the
drafting defects. Not so where the allegation is
that there is no cause of action or no defence as each allegation hinges on
the law.
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The purpose of this summary
procedure under the Court Rules adopted from trom the English Supreme Court
Rules 1883 is
to ensure that cases in which the Statement of Claims are
without legal basis do not reach the trial stage. That is to say,
the
procedure is a cost saving mechanism in the rules of practice like other
summary procedures under the same rules.
The practical application of it
however is not automatic in that it is automatically applied by the Courts
in all cases.
The power to do so is discretionary depending upon the
circumstances of each case. This is because there is that risk of killing
off the action prematurely and perhaps unjustly before the case is heard in
Court at the trial stage where all the evidence
in the Plaintiff's case will
be led to reveal the full strength of the Plaintiff’s case. This procedure
is therefore
reserved only for cases where there can be no doubt by any
stretch of imagination that the Plaintiff clearly has no case to
argue in
Court”...
Having cited the remarks by
Lord Lindley, M.R. at page 91 in Hubbucks Sons Ltd v Wilkinson Heywood &
Clark Ltd [18991 1 Q B D 86, I continued at page 3 as follows:
<
…“The principlepractice
set out by LINDLEY M.R. above have since reme remained the basis of present
approach by the Courts
which apply the same practice rules as the High Court
of Solomon Islands. I need not cite all the cases on this point in this
jurisdiction as this procedure has been frequently applied in this
jurisdiction ...”
As regare second
objection, I would cite the case of Chafters v Goldsmid [1894] 1 Q
Q
B.D. 186. In that case, the Plaintiff in 1891 presented his petition to the
Defendant who was a member
of the House of Commons for presentation in the
House of Commons which the Defendant did but was returned to the Plaintiff
as not being proper and could not be received. The Plaintiff made two
further attempts and each time he was refused.
The Plaintiff then sued for
damages of £500 and applied for mandamus to compel the Defendant to present
his petition
again to the House of Commons. Collins, J. struck the
Plaintiff’s Statement of Claim as frivolous. The Plaintiff then appealed
against Collins, J.’s decision. The Appeal was dismissed on the ground that
it was frivolous. At pages 174 - 175, Bernard
C. Cairns in Australian
Civil Procedure, 1981 states,
...
In its terms the rule
require defect to appear on the face of the pleading. Unless it s it so
appears, the rule has no
application. For the rule to apply the pleading
must be characterised as frivolous of vexatious. These terms appear to have
been used interchangeably, and there is no comprehensive definition of
either term. An attempt to formulate a definition
would be unwise, for the
content of the expressions varies from one set of circumstances to another.
For the present purposes the
ordinary meaning of frivolous may be adopted, thd, that is, something that is not
worth serious
attention, while vexatious means that the action or defence is
for the purpose of harassment. On this basis it may said that
a pleading is
vexatious if it is one that cannot succeed, or is put forward simply for the
purpose of wasting time or
for causing delay. A pleading that is not
intended to be taken seriously is struck out as frivolous in the same way as
a claim which has no foundation”...
The author continues at
page 176 thus,/span>
... “Jurisdiction to strike
out frivolous or vexatious pleadings is discretionary”...
This Case
The Writ of Summons and the
Statement of Claim do disclose negligence as a cause of action in tort and
in the alternative,
a cause of action in quasi - contract for monies had and
received to the benefit of the Plaintiff. These causes of action do
present
arguable points of law which must await the trial proper to prove their
correctness or otherwise. I will not
strike out the Writ of Summons and the
Statement of Claim as requested by the 1st and 2nd
Defendants. I do see that the causes of action in this case have arisen in
unusual circumstances but that cannot cause
me to strike them out before
their merits or demerits are decided at the conclusion of the trial. This
application is
therefore refused with costs. This being the case, I direct
that the 1st and 2nd Defendants filed their defence by
25th January, 2002.
Judge
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