IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 436 of 2013

BETWEEN:

THOMAS KAONIFEROA
Claimant

AND:

CATHOLIC EDUCATION AUTHORITY
Defendant

Date of Hearing: 19th January 2016
Date of Ruling: 12th February 2016

Mr. M. Ipo for the Applicant/ Claimant
No appearance for the Defendant

KENIAPISIA, PJ:

RULING ON AN APPLICATION TO RE-INSTATE A STRUCK OUT CLAIM

1.	The Registrar struck out this proceeding on 17/11/2014. Registrar took the action under R.9.72 (d) of the Solomon Islands Courts (Civil Procedures) Rules 2007 ("the Rules"), for failure to take steps in relation to the case within twelve (12) months. Claimant applied to re-instate on 27/11/2014. Supporting sworn statements were filed on 27/11/2014; 20/2/2015; 21/4/2015 and 19/01/2016. The application plus supporting documents were served on the defendant as per proof of service contained in sworn statement by Ipo sworn on 7/05/2015, but not filed in court, by counsel's oversight.

2.	Under the said Rule 9.72, the Registrar has power to strike out a proceeding without notice, if there has been no step taken in a proceeding for 12 months. 

3.	Claimant filed a Category A Claim on 13/11/2013. There is no defence on file. No defence on file meant that claimant was entitled to apply for default judgment by mid-year of 2014, the latest. There is no such application on file either.

4.	On perusal of the file, nothing by way of filed court documents or correspondences have been entered on the court file, since filing of the claim. Undoubtedly, this has prompted the Registrar to take the action she took. 

5.	The pertinent question to ask is: Have no steps being taken in the case inside 12 months to justify strike out under R.9.72 (d)?

6.	
(1)	
Claim filed on 13/11/13.

	
(2).	
Claim served on Augustine Rose in November, 2013.

	
(3).	
Claim personally served on the Defendant on March 4, 2014, at Holy Cross.

	
(4).	
Registrar struck out the claim on 17/11/2014.	

7.	I therefore find as a matter of fact, the last step taken on the file was in March 2014, when personal service of the claim was made on the defendant. But that service, it may appear on first instance, as defective because, proper service under the Rules must be done within three months of the date on which the claim was filed. I deal with this defect later. 

8.	I also found as a fact that the claimant failed to apply for default judgment early or at all, even when he was entitled to by mid-year of 2014, or at all throughout the second half of the year, 2014.

Calculation of 12 calendar months

9.	Counsel for the applicant submitted that the Registrar's calculation of 12 months was erroneous, and hence her action to strike out on 17/11/2014, also wrong, because she failed to take into account the excluded period stipulated under Rule 26.1 and Rule 26.2 as read with Rule 26.5. For the same reasons on excluded period calculation error, the personal service of the claim on 4 March 2014 would still be within the 3 months period required for personal service of the filed claim, had the Registrar taken into account the excluded period. I agree with Counsel Ipo's submission on erroneous calculation of the 12 months period and therefore the personal service of the claim on 4/03/2014, was still valid within the Rules.

10.	From that conclusion, the last step taken on the matter was personal service of the claim on 4/03/2014. The court was, however, unaware of this last step because the claimant did not file a ss of proof of service or noticed the office of the Registrar. Only with a proof of service or notification would the case have deemed to be moving accordingly to the court's file, before the Registrar's radar. Then claimant failed to apply for default judgment by mid-year 2014, even when he was entitled to.

11.	Now under R.9.72 (d), the Registrar shall strike out without notice if no step has been taking place in the proceeding in 12 months. From the Registrar's radar, no step has been taken because nothing had come through the court's file. But steps were actually taken place as of 4/03/2014, when claimant made personal service. Personal service of a claim is a requirement of R.6.1 and 6.5. Counsel ought to have filed a ss of proof of service or write to let the Registrar know about personal service.

12.	I am satisfied that personal service of the claim on 4/03/2014, meant the case was still progressing as of that date. Therefore to strike out the case under R.9.72 (d), one has to start on that date in the calculation of 12 months period, accounting for the excluded periods under R. 26.5 – during Christmas and new year. Were those to happen, the strike out for non-action in 12 months would have validly occurred in March/April 2015.

13.	In the interest of justice, the applicant succeeds. The claim is re-instated. Claimant must serve the defendant again after this re-instatement and start doing the right things – file proof of service in court; apply for default judgment, as soon as it falls due rather than leaving it too late and to constantly keep the court file in the loop of every valid action taken outside of the Registrar's radar. 

THE COURT

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JOHN A. KENIAPISIA
PUISNE JUDGE