CC No 313, 2000, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 313 of 2002

JOHNSON MOFFAT RAMONI

- v -

SOLOMON ISLANDS TEACHERS ASSOCIATION

High Court of Solomon Islands 
(Palmer J.) 
Civil Case Number 313 of 2002 

Hearing: 3rd February 2003
Judgment: 7th February 2003 

A. Radclyffe for the Applicant
M. Ipoh for the Plaintiff 

PALMER J.: The Plaintiff filed Writ and Statement of Claim on 10th December 2002 claiming inter alia damages for negligence to be assessed in the sum of $136,060.00 and damages for breach of contractual agreement limited to $10,000.00. 

The claim of the Plaintiff, after careful consideration, distilled from the “Statement” attached to his Writ of Summons, was nothing more than a claim for damages for breach of his contract of employment dated 13th June 2001 (hereinafter referred to as “the Contract”) entered into with the Solomon Islands National Teachers Association (hereinafter referred to as SINTA”). 

Plaintiff was employed on 13th June 2001 and his contract of employment terminated six months later on 13th December 2001. Plaintiff’s claim in essence stem from the termination of his contract of employment. Unfortunately and this can be explained it seems largely by the fact that the “Statement” filed had been drafted by a layman, he also sought to make claim for damages for negligence when there are no particulars in his “Statement” to justify in law a claim for damages in such action. The law does not permit him to do that in the absence of appropriate pleadings or details to that effect. 

Negligence is a tort, which entails breach of a duty to take care imposed by common or statute law, resulting in damage to a complainant (see Charlesworth on Negligence sixth edition paragraphs 19 - 20). For a claim in negligence to succeed, three things must be pleaded: 

1. the existence of a duty to take care owing to the complainant by the defendant; 

2. failure to attain that standard of care prescribed by law; thus committing a breach of the duty to take care; and 

3. damage suffered by the complainant, which is causally connected with the breach of duty to take care. 

Plaintiff would have been required to enter appropriate pleadings consistent with the requirements set out above, of a negligent claim. He did not do that and therefore his claim for damages for negligence is defective and cannot be allowed to remain on the Writ. 

This defect also has a direct bearing on the Judgment in Default of Appearance and Defence issued by this Court on 7th January 2003. I read the relevant part of that order:

“No appearance having been entered to the writ of summons and/or No Defence has been delivered by the defendant herein, IT IS THIS DA Y ADJUDGE that: 

(1) The Defendant pays the Plaintiff the sum of $146,060.00 with interest at 5% per annum commencing on October 2002 until payment.”

The sum of $146,060.00 had been calculated on the basis that the claim for negligence in the sum of $136,060.00 was a valid claim in law. That being not the case the amount of $136,060.00 allowed in the judgment in default cannot be permitted to remain as a valid order. 

Secondly, the claim for damages for negligence (had it been valid) clearly stipulated that if judgment was granted then damages were to be assessed. That was not done. The judgment in default therefore was also defective to that extent and ought not to have been made without first requiring that a hearing be convened for assessment of damages for negligence. 

Order 13 rule 8 of the High Court (Civil Procedure) Rules 1964 (“the Rules”) provides for the setting aside of a judgment which had been obtained following a failure to enter appearance. I quote: 

“Where judgment is entered pursuant to any of the preceding Rules of this Order, it shall be lawful for the Court to set aside or vary such judgment upon such terms as may be just.” 

Order 29 rule 12 also deals with the power of the court to set aside judgment where there has been a failure to enter defence. In this instance, the judgment obtained on 7th January 2003 was a judgment in default both of appearance and defence. 

The rules clearly provide the court with power to set aside any such orders, upon such terms as may be just (Order 13 rule 8) or, upon such terms as to costs or otherwise as the court may think fit (Order 29 rule 12). 

The power of the court to set aside however has been held (see Kayuken Pacific Limited v. Harper (1987) S.I.L.R 54 at page 58) to be subject to a number of things. Of paramount importance is the requirement for an affidavit of merit to be filed showing that the Defendant has a prima facie defence to the action. If he fails to file an affidavit of merits or fails to disclose a prima facie defence, then that is the end of the matter for the defendant. 

A prima facie defence requires the disclosure of a triable issue. If such were shown, the court would then go on to consider the following matters: 

(1) the reason for the failure by the absent party to appear, 

(2) whether there has been undue delay in commencing proceedings for a new trial, and 

(3) whether the other party will be prejudiced by an order for a new trial. 

Defendant relies in this case on the affidavit of merits of Fred Taika filed 16th January 2003. Mr. Taika deposes that since termination of the employment of Plaintiff, the Defendant had paid him all his dues and entitlements. In annexure “FT2” (which is a copy of the minutes of the SINTA National Executive Council Meeting held on 18th June 2002) Mr. Taika mentions details of various payments that had been made to the Plaintiff (see paragraphs 5.5, 6.05 - 6.09). Defendant submits that this is evidence not only of payments having been made to the Plaintiff but that those payments were all that the Plaintiff was entitled to. 

Having considered the affidavit material carefully and the claim of the Plaintiff I am satisfied a triable issue is disclosed. 

This brings me to consider next the question on the reasons for failure to appear. The reason disclosed in the affidavit of merit of Mr. Taika was that their legal counsel, Mr. Radclyffe was away on Christmas vacation during the crucial period the Writ and Statement of the Plaintiff had been served. The affidavit material shown is consistent with this submission. Whilst there is no requirement that a memorandum of appearance should be entered only after taking legal instructions and that Mr. Taika could have entered appearance on his own in the interim period whilst waiting for his legal counsel to return to the country, it is my respectful view that the reason for not filing a memorandum of appearance in this instance when considered together with the next question whether there had been undue delay is not fatal to this application. There are many reasons why a defendant may fail to enter appearance within the prescribed period. I am satisfied the reason given in this instance is genuine and not an attempt to delay the proceedings. 

On the issue of delay, it can hardly be said there was undue delay. Application to set aside was filed on 16th January 2003, only some twenty days later. That can hardly be described as undue delay in the circumstances of this case. Taking into account the fact that service was effected over the Christmas vacation when most lawyers in any event are not available and the court on vacation, and the fact that there is evidence to show that Mr. Radclyffe was given instructions on the same day he reopened for business on 10th January 2003, I cannot be satisfied there was undue delay. 

Finally on the issue of prejudice, I cannot be satisfied as well that the Plaintiff will be prejudiced in any way by having the judgment in default set aside. To the contrary, for justice to be determined according to the laws that govern such contractual relationships in this instance, the most appropriate course of action would be to have the judgment in default of appearance and defence set aside and the Plaintiff allowed to amend his statement of claim. I so order. 

Orders of the Court: 

1. Set aside Judgment in Default of Appearance and Defence dated 7th January 2003. 

2. Strike out Plaintiff’s claim for damages for negligence as disclosing no cause of action. 

3. Plaintiff to file amended statement of claim within 14 days. 

4. Costs in the cause. 

ALBERT R. PALMER
The Court.