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Nagasawa v Attorney General [2010] SBHC 61; HCSI-CC 101 of 2009 (14 October 2010)

HIGH COURT OF SOLOMON ISLANDS
GOLDSBROUGH J

Civil Case No. 101 of 2009

BETWEEN:

KAZUO NAGASAWA
First Claimant

AND:

HWANG SHU FENG
Second Claimant

AND:

YUNG HUANG FISHERY COMPANY LIMITED
Third Claimant

AND

DAIWA MARINE INTERNATIONAL
Fourth Claimant

AND:

SOLCO COMPANY LIMITED
Fifth Claimant

AND:

DAIWA MARINE WORLD
Sixth Claimant

AND:

YUNG HUANG MARINE
Seventh Claimant

AND:

SOLGREEN ENTERPRISES LIMITED
Eighth Claimant

AND:

YUNG HUANG FISHERY COMPANY LIMITED
Ninth Claimant

AND:

SOLCO COMPANY LIMITED (JAPAN)
Tenth Claimant

AND:

ATTORNEY-GENERAL
(In respect of the Commissioner of Inland Revenue)
Defendant

Date of Hearing: 16 June 2010
Date of Judgment 14 October 2010

Bird M for all the Claimants
Woods S for the Defendant

JUDGMENT

GOLDSBROUGH J:

1. This is an application brought to strike out the further amended claim in these proceedings filed 25 May 2010. The original claim was filed 30 March 2009 and so all proceedings have always been conducted under the present Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR).
   
2. One ground of the application is that the claim as amended does not sufficiently identify the cause of action relied upon. In those circumstances, it is submitted, the defendant cannot properly defend the action.
   
3. In particular it is said that there is no indication in the claim of which claimant owned which vessel alleged to have been damaged, the extent of the damage as regards each vessel, market value of each vessel nor why each vessel should be rebuilt rather than replaced with another vessel. Further, the existence, nature and content of the duty of care alleged is not articulated.
   
4. It is also said that as regards many of the heads of damage claimed that there is no factual basis pleaded for example as regards the costs incurred for employees.
   
5. There are then, it is submitted, claims for damages specified relating to defamation which is not pleaded in the statement of claim.
   
6. Submissions were filed by the defendant in writing in support of the application to strike out. In response none of the defendants filed any written submissions. Oral submissions were made at the hearing of the application confined to brief remarks about the CPR permitting the court to make orders other than strike out where there has been non-compliance with the Rules.
   
7. The substance of the allegations brought by the ten defendants is that whilst under the care and control of the defendant under order, several fishing vessels were destroyed or damaged at sea during a cyclone and that in permitting this situation to exist the defendant failed to exercise the standard of care which was owed to the defendants.
   
8. That complaint could be pleaded in very simple terms. It is not, however, brought in simple terms, does not identify the existence of the duty of care nor does it go to show how the damages specified in the particulars relate to the claim itself. For example, whilst one can see the link between the vessels being damaged and the claim for that damage it is not possible to see the link between the damage alleged and the defamation damages claimed. Equally but to a less significant extent it is not possible to see the link between the damage alleged and the damages claimed to rebuild the vessels.
   
9. In summary the claimants appear to have decided that they need not indicate in their statement of claim quite why they are entitled to particular damages but instead will set out a list of what they regard as damages and leave the court to determine which, if any, of the damages are recoverable. Flexible as the CPR maybe, they are not quite that flexible. They have not removed the obligation that a claimant has always had to set out clearly exactly what their case is and why.
   
10. In short, it is clear that the defendant cannot be required to answer the claim in its present form. The claim, if it is to be answered, needs to be further amended to include all the particulars that would allow a proper defence to all of it to be filed. The defendant submits that the time for this to be done has passed, as these defects have been pointed out to the legal representative for the claimant without any attempt being made in response to set matter aright. This is one of the reasons why the defendant presently seeks a strike out. Whilst it is correct to submit that the claimants have had plenty of time to frame their claim correctly, the fault may not lie at the door of the claimant but at the door of their present legal practitioner and her inability to plead the claim correctly. The claimants should not be judged too harshly for that.
    
11. The second reason submitted for strike out is that even if correctly pleaded the claim, the defendant says, could not succeed. I do not agree with that contention at this stage, for given that the claim is presently difficult to identify with any particularity, it seems wrong to attempt to anticipate it and determine in advance of it being properly framed that the Crown Proceedings Act would afford the defendant a complete defence to the claim.
    
12. The orders that emanate from this application by the defendant are that the claimants are granted leave to further amend their claim to remedy its defects, so that it identifies the cause of action and sets out in the statement of claim all those particulars which will permit the claim to be properly answered including but not limited to all of those matters referred to in this decision. That will be done within 28 days from the date of publication of this decision, failing which the claim will be dismissed in its entirety without further hearing.
    
13. In the event that the claimants file a further amended claim within the time allowed above the defendant will be afforded the opportunity to further comment on the claim or to accept that it is by the amendment a valid claim at the defendant's discretion. For that purpose liberty for this application to be restored to the list is granted to the defendant, to be exercised within 14 days of service of the amended claim, if any. The substantive matter is listed for mention on a date to be agreed by counsel. Costs of this application are to be regarded as costs in the cause.
    

Dated this 14th day of October 2010.

GOLDSBROUGH J