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Tikani v Motui [2001] SBHC 151; HC-CC 029 of 2001 (25 October 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 29 of 2001

JAMES TIKANI AND OTHERS

–v-

AMBROSE MOTUI AND OTHERS
AND ATTORNEY-GENERAL

High Court of Solomon Islands
(Palmer ACJ)

Hearing: 25th October 2001
Judgment: 25th October 2001

A & H Lawyers for the Applicant/First Defendant
G. Suri for the Respondent/Plaintiff
J. Deve for the Second Defendant

PALMER ACJ: The hearing fixed for today was for the Notice of Motion of the First Defendants filed 12th September 2001 to be heard. The Registrar of High Court fixed it on 19th September 2001. Prior to commencement of the hearing, Mr. Suri Counsel for the Plaintiff applied to have the matter adjourned to enable him file an amendment to the Plaintiff’s Statement of Claim filed 9th March 2001. Mr. Suri gave reasons that due to frequent power failures his monitors at his home and office had both been damaged beyond repair leaving him with little to have his work prepared in time. Hence he has not been able to file any amendment.

The second reason given in support of his application is that even if the court does not accept the reason given above, he submits he is still entitled to an adjournment on the basis that by entering an unconditional appearance it acts as a waiver of a defect on the face of the process, or of a defect known to the defendant. Learned Counsel relied on Bernard C. Cairn’s Australian Civil Procedure second edition, at page 80. Unfortunately that does not include a waiver of the defendant’s right to dispute the plaintiff’s claim (see the Annual Practice 1958, Sweet and Maxwell Publishers at page 199). I acknowledge the normal approach would have been to file conditional appearance in such circumstances.

On the question of amendment, Order 30 of the High Court (Civil Procedure) Rules 1964 give jurisdiction to the court at any stage of the proceedings to allow either party to alter or amend his indorsement or pleadings. I take into account the reason given by Mr. Suri for not filing an amendment before the hearing date today. I take into account also the fact that the need for amendment arose out of another proceeding in Civil Case 197/2001 when judgment was delivered on 31st August 2001. It appears from the submissions of Mr. Suri from the bar table that the amendments he intends to make may have a direct bearing on the application of the First Defendant. I also take note that refusing such application now could take up unnecessary time and costs. In the circumstances, I rule that the adjournment is granted. Plaintiff has leave to file an amended writ and statement of claim within 7 days, failing which the Notice of Motion of the First Defendant shall be re-listed for hearing. Costs of the first and second defendants must be met by the Plaintiff.

ORDERS OF THE COURT:

1. GRANT ADJOURNMENT.
   
2. PLAINTIFF TO FILE AN AMENDED WRIT AND STATEMENT OF CLAIM WITHIN 7 DAYS, FAILING WHICH THE NOTICE OF MOTION OF THE FIRST DEFENDANT IS TO BE RESTORED TO THE LIST FOR HEARING.
   
3. PLAINTIFF TO MEET THE FIRST AND SECOND DEFENDANT’S COSTS.
   

THE COURT.