2.
That leave be granted to amend the Writ of Summons Stat of Claim
and the orders in the action as follows:-
<
3pt">[a]
by deleting the word �Suvaahu� wherever it appears therein and replacing it
with the word �Siwa�ahu�, and,
<
[b]
by deleting George Noa Kiriau as Second Plaintiff in the action.
4pt">4.
p;&nssp; Such further ther or other orders as the Court deems fit.
5.
sp; That coets bthin then ausecause.
p class=lass="MsoNormal" style="line-height: 13.8pt; margin-top: 1; margin-bottom: 1">
There is
an error in the numbering of the above orders in that
4
should
be 3 and 5 should be
4.
These orders are contained in a summons filed by the Plaintiff on
14th
May
2001.
ass="Mso="MsoNormal" style="line-height: 13.8pt; margin-top: 1; margin-bottom: 1">
At
hearing o the Summons, Counsel for the
1st
Defendant, Mr. Sullivan, submitted that the Court had no jurisdiction to
hear the Plaintiff�s Summons and to determine
it on the terms therein.
The reason being that the Order
of 5th Octobe0 was a dismissal of the Plaintiff�s action filed on 31st
May 2000. That is to say, the Court would be functus officio in respect of
any further dealing with the Plaintiffs action
(see S v Recorder of
Manchester
[1971] A.C. 481). The Plaintiff�s action, he said, ended at the striking out
of the Plaintiffs Statement of Claim and the dismissal of the Plaintiff�s
action against all Defendants. Mr. Sullivan pointed out that the proper step
to take to challenge the Court Order of
5th October2000 would
have been to appeal the Order which in this case, he said, such a step
would clearly be out of time.
Alternatively, he said, the Plaintiff could
institute fresh action for damages if he d to be the rightful owner of
the
Tangiliu Land. To s To set the Order aside under Order 38, rule 7 of the High
Court (Civil Procedure) Rules 1964 (the High
Court Rules), he said, was not
possible because there was no trial in this case but rather the Order was
made upon failure
to fulfil conditions stipulated in the Court Order dated
2nd June 2000. Counsel for the plaintiff, Mr. Apaniai, however
argued that as a matter of fact the Court Order of 5th October
2000 was obtained by the 1st Defendant in the absence of the
Plaintiff and therefore the Plaintiff would be entitled to be heard under
Order 38, rule
7 of the High Court Rules. Mr. Apaniai further pointed out
that the failure by the Plaintiff to comply with paragraph 8 of
the Court
Order of 2nd June 2000 had been due to the Korutalaumeimei
Chief�s Panel�s decision in the High Court recently. The reasons, he said,
for the delay in compliance with paragraph 8 of the Order 2nd
June 2000 were set out in the Plaintiffs affidavit filed on 14th
May 2001.
Brief Facts
In this case, Plaintiff
represente Tangiliu tribe whilst George Kiriau Noa, the 2nd
Plaintiff
represented the Walaihenue
tribe. By a Consent Order dated 2nd June 2000, the Plaintiffs
undertook to expeditiously prosecute their respective actions in the Malaita
Local Court for
the determination of ownership in respect of Tangiliu land
and Walaihenue land respectively. In
default of doing this by
the Plaintiffs or any one of them, the Defendant was at liberty to apply
to the Court to strike
out the Statement of Claim. By letter dated 14th July 2000, the 2nd
Plaintiff withdrew from this case as a party. Following an application by
Summons filed on 19th August 2000, the 1st Defendant
was able to obtain a Court Order dated 5th October 2000 striking
out the Plaintiff�s Statement of Claim and dismissing the Plaintiff�s
action. The Plaintiff was
not present at the hearing of the 1st
Defendant�s Summons though his Solicitor�s Office had been served with a
copy of the summons on 25th August 2000.
Was
the Orhe Order final or interlocutory
There is a difference between a
dt judgment (interlocutory) and a final judgment or order. Ier. In the case
of a default
judgment under Orders 13, rule 8, 29, rule 12 and 38, rule 7 of
the High Court Rules, the defaulting party is entitled to apply
to the Court
for the default judgment or order to be set aside within the terms of the
rules under those Orders. In the
case of a final judgment or order, the
losing party can only appeal the final judgment or order as the case may be
.
The test was put by Lord Alverstone C.J in Bozson v Altrinchan
Urban District
Council [1903] UKLawRpKQB 44; [1903] 1 K.B.
547 at 548 thus,
ass="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
�It
seems to me that that the real test for determining this question to be this:
Does the judgment or order, as made,
finally dispose of the rights of the
parties? If it does, then I think it ought to be treated as a final order;
but if
it does not it is then in my opinion, an, interlocutory order.�
In that case, the trial judge
found that there was noing contract between the parties and dismissed
the ache action. The
Court of Appeal held that order was final and therefore the
appeal was brought within the prescribed time.
The test was considered and
accepted by the Privy Council in Haron Bin Mohammed Zaid v Central
Securities (Holdings) BHD [1982] 3 W L R 134. The earlier test as stated
in Salaman v Warner and Others [1891] UKLawRpKQB 85; [1891] 1 Q.B. 734 was not preferred by
the Privy Council. The earlier test is that a final order is one that
finally determines the matter
in litigation no matter for whichever side the
decision is given provided it does stand and achieves that finality. The
Privy Council did not however say why it preferred the test stated in the
Bozson case cited above. In Hall v Nominal Defendant [1966] HCA 36; (1966) 117 C L R
423, Windeyer, J. at page 443 gave his reason for the non-acceptance of the
earlier test in Salaman v Warner cited above in these terms:
But
it is not a view that hast has had general acceptance:� And it cannot be regarded
as of general application because
an order in favour of one party to an
application may finally
determine the dispute between them whereas an order to the opposite effect
would not. For example, an order setting aside
a jury�s verdict and ordering
a new trial is clearly interlocutory. But an order refusing a new trial is
final��
p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
In that case, the High Court of
Australia also adopted the test stated in the Bozson case cited above. In
this case, the application of the test must necessarily involve the
examination of the Court Order
of 5th October 2000. The crucial
part of the Order is paragraph 3. Paragraph 3 simply struck out the
Plaintiff�s Statement of
Claim and that the Plaintiff�s action be dismissed
against all Defendants. The paragraph speaks for itself. The rights of the
Plaintiff, if any, were conditional upon his fulfilment of his undertaking
in paragraph 8 of the Court Order of 2nd June 2000. The Order was
a Consent Order duly signed by the Plaintiff�s Solicitor. The Plaintiff
having failed to fulfil
his undertaking in paragraph 8 above, the 1st
Defendant was entitled to apply to the Court to strike out the Plaintiff�s
Statement of Claim and to dismiss the Plaintiff�s
action. The Plaintiff had
agreed in paragraph 8 of the Consent Order that his rights be denied if he
failed to fulfil
his undertaking in paragraph 8 above. In my view, the Order
of 5th October 2000 was final because the Plaintiff had agreed in
advance to the real possibility that such an order could be made
against him
and his rights, if any, be thereby denied and the rights of the Defendants
be thereby vindicated thus bringing
to an end the dispute between them in
the High Court. The Plaintiff cannot now, as it were, reopen the dispute by
using
the default procedure under the rules to set aside the Court Order on
5th October 2000 and reinstate the Consent Order of 2nd
June 2000. If the plaintiff did not accept the order because it was made in
his absence, he could have appealed it. This,
he has not done. I can well
understand the Plaintiff�s position in that if he had attended the hearing
of the 1st Defendant�s Summons filed on 19th September
2000, he would have told the Court of his position regarding his undertaking
in paragraph 8 of the Consent
Order on 2nd June 2000. By being
not aware of the hearing date for reasons beyond his control resulted in his
absence at the hearing
at which the Order of 5th October 2000 was
made terminating what he saw as his rights. However, as I have said, the
proper way of going about undoing
the Order would have been by appeal which
is now clearly out of time.
There is another reason. The
Plaintiff�s claim of ownershiTangiliu land was merely anly an assertion of
rights until ownership
was decided by the relevant Panel of Chiefs and the
Local Court as the case may be. The Korutalaumeimei Chief�s Panel decision
made on 20th June 2000 against the Plaintiff was quashed by the
High Court on 27th April 2001, in Civil Case No: 1 of 2001. The
Plaintiff�s claim of ownership in custom over Tangiliu land is, as at
present,
yet to be determined. The Plaintiff cannot claim the right of
ownership to Tangiliu land in the High Court as the High Court
does not have
jurisdiction to determine ownership of Custom Land (See Gandly Simbe v
East Choiseul Area Council (Civil Appeal No: 8 of 1997), as applied in
John Osiramo v Mezach Aeounia (Civil Case No. 201 of 2000), Joe
Rodi Totorea, Roe Roe & George Abukeni v Tairata Integrated Forest
Development Company Limited and Bulecan Integrated
Wood International Pty
Limited Civil Case No: 204 of 2000 and Nathan Kere v Paul Karasi
(Civil Case No: 258 of 2000). In other words, the Plaintiff had no case to
prosecute in the High Court as he was not
the owner of Tangiliu Land on the
date he filed his Writ of Summons and Statement of Claim in the High Court.
Even assuming
that I do have jurisdiction, the Plaintiff�s application to
set aside the Order is now out of time under Order 38, rule 7 of
the High
Court Rules as read with Order 64, rule 5 of the same Rules. Clearly, for
the Plaintiff, the door is closed
on all sides. The Plaintiff�s application
must be dismissed. The application is accordingly dismissed with costs.
F.O. Kabui
class="MsoNormal" style="margin-top: 1; margin-bottom: 1" a 1" align="center">
Judge
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