AND FURTHER TAKE NOTICE
that the grounds of appeal are as follows �
1. p; The ordrr for
payment of $20,000 to the plaintiff out of the Trust Funds for the
prosecution of
his case amounts to an error of law;
2.   order to transfer
r
funds in the First, Second and Third
&nbbsp;& &nsp; &nsp;
Defendants Solicitors
Trust Account is not in the best
&nbbsp;& p; &bspp
interest of clients in
that it resulreducterespan>
&nb"> &nsp; &bsp; &nbssp; &&nsp;;&nsp;
<yield on the deposits.
&pt">
AND THE APPELLANTS SEEKS THE
FOLLOWING ORDERS:
(1) &nbbsp;& tsp; that the orf orf
the Registrar datr dated 19th July, 2000 and perfected on 24 July,
2000 be quashed;
(2) &ntsp; acis n
io proceproceed to trial; and
class="MsoNormaNormal" style="text-ind-36.0argin
<(3) the Plaintiff pays
cohe cost of this appeal.�
th November.
It was out of time by 3 months and 10 days. The appeal should have been filed
by 31st July, 2000. Solicitors for the Defendants did not apply for
extension of time under Order 64, rule 5 of the High Court Rules.
An attempt
to extend time by an Amended Summons filed on 30th October 2000 was
not successful as that Amended Summons was never determined by the Court.
Counsel for the Plaintiff did
not seem to have been aware of this procedural
error and failed to argue this point in her Notice of Motion. In fact, she
never raised the point at all. This is a very strong point in her favour and
yet she was not able to see it and argue it before
me.
Instead, Counsel argued that t Notice of Appeal was an abuse of the Court process and must be struck out or
dismissemissed. I
reject that argument. Counsel could have argued that non -
compliance with Orders 57 and 64 of the High Court Rules would render
the
Notice of Appeal void in terms of Order 69 of the High Court Rules. That is to
say, there is no Notice of Appeal at all
on foot as from the date of the Order
of the Registrar for that reason of non - compliance. However, the
Plaintiff�s Notice of Motion did
have that intention though not correctly expressed in the Notice of Motion
itself. I think
the Plaintiff�s Notice of the Motion does have some merit to
the extent that it does raise doubts about the legal correctness
of the
Defendants Notice of Appeal although Counsel did not argue the point per se.
In my view, the Defendants were hopelessly
out of time. The omission on their
part to extend time under Order 64, rule 5 of the High Court Rules renders
their Notice
of Appeal a nullity. This must be so because how else could it be
said to be a valid Notice of Appeal? In my view, it cannot
be said to be so.
It was an invalid Notice of Appeal. The Notice of Appeal must therefore be
dismissed. I do so accordingly.
The effect of this is that the
Order made by the Registrar and perfected on 24 July 2000 remains
intact. As far back as 6thth
July 1999, Awich J. ordered that all
monies received in connection with the logging operation were to be paid into
a joint
interest bearing account of the Solicitors of the parties. Solicitors
for the Plaintiff took over the Plaintiff�s case from Steve
Watt of the Public
Solicitor�s Office on 3rd May, 2000. By letter of that date, the
Solicitor for the Plaintiff wrote to the Solicitor for the Defendants
requesting details
of the account holding monies being 7% of the gross
proceeds of 45% received by the Defendants. The monies were being held in
a
trust account opened and separately operated by the Solicitor for the
Defendants under an earlier arrangement agreed to
by Patrick Lavery and Steve
Watt of the Public Solicitors Office with the solicitor for the Defendants.
This arrangement
was based upon convenience and was not quite in accordance
with Awich J.�s order made on 6th July, 1999. The Solicitor acting
for the Plaintiff at that time should have gone back to Court for the
variation of the Order
made by Awich, J. on 6th July, 1999 to
regularise that arrangement. It would have been even better if the new
Solicitor for the Plaintiff sought that
variation or if she did not agree,
told the Solicitor for the Defendants in clear terms that she would not accept
the existing
arrangement and would stick to Awich J.�s order of 6th
July, 1999 and insist unconditionally upon compliance. She took neither of
these steps and allowed the Solicitor for the
Defendants to play the tune for
her. In fact, the Solicitor for the Defendants must have taken it that the
Plaintiffs new
solicitor was quite happy with the arrangement entered into the
Plaintiff�s previous Solicitors, Messrs Lavery and Watt of the
Public
Solicitors Office with him. This out of court arrangement enabled the
Solicitor for the Defendants to wriggle out
of the grips of the order made by
Awich, J. on 6th July, 1999. The request by the Solicitor for the
Plaintiff for the release of $20,000 from the separate account held by the
Solicitor for the Defendants was for the purpose of assisting the Plaintiff in
the conduct of the Plaintiff�s case. As a result
of failing to secure the
release of $20,000 from the Solicitor for the Defendants, the Solicitor for
the Plaintiff, filed
a Summons on 8th June, 2000 seeking the
release of $20,000 and the transfer of the balance of the monies held in the
separate account by the
Solicitor for the Defendants to an interest bearing
joint account to be held in the names of the Defendants� Solicitor and
Plaintiff's Solicitor. Solicitor for the Defendants, did not comply with the
orders made by the Registrar of the High Court
on 24th July, 2000.
The terms of the Order are-
1.
p;&nssp; The monies pres presently held by the Defendants Solicitor amounting to
not less than $29,496.60
as shown in the Bridge Lawyers
Statement
of Account date 23rd May
2000 shall within fourteen (14) days from the date stipulated herein be
transferred into a Joint Trust Account
held in the names o the parties
Solicitors namely, ANT Legal Services and Bridge Lawyers;
2.
That the sum ofum en TwThoy Thousand Dollars ($20,000.00) shall within
fourteen (14) days from the date
stipulated herein - under be paid from
the funds referred to in paph o) of Order and to be paid
int into theo
the Plaintiff�s
Solicitor�s Trust Account;
3.
;&nbssp; There iere is no order as r as to costs.
hese
orders were appealed on 13th November 2000, well out of time.
Solicitor for the Plaintiff was not quick enough to point this out to the
Solicitor for
the Defendants earlier so that if the Solicitor for the
Defendants failed to apply for extension of time, the Solicitor for the
Plaintiff would have moved to strike out any appeal that was out of time. The
Solicitor for the Plaintiff waited too long
to act against the Notice of
Appeal filed out of time by Solicitor for the Defendants.
Summons Filed by the Defendants
on p>th February 2001, the date of Trial
In this Summons, the Defendants
sought thesers �
1.
The expenses
of the parties incurredonnec
th thal of matter be paid out of trust funds in the followingowing
a amountmounts
�
(a) to
the Plaintiff the sum of $2,220; and
(b) to
the First Defendants the sum of $10,400.
2.
p;&nbbsp;Thsp;The amou amounts herein to be paid from funds still held by the
;&nbssp; &nsp;
;
First Defendant�s Solicitor in trust.
e> e> ">
3.
& p;&nssp  Thp; The balance f the
remaining
in the First Defendant�s Solicitor�s
custody to be transferredhe Joint Trust Account of t of the Parties�
Solicitors
within two days from today�s date.
4.
&nbbsp; ose cf t of this apis application to be met by the Plaintiff.
Tpt">This Shis Summonummons seem to have arisen
out of the following facts. By letter dated 19th January 2001,
Solicitor for the Defendants served upon the Solicitor for the Plaintiff
copies of the Defendant�s witnesses
statements ordered by the Registrar of the
High Court on 6th December 2000. The Solicitor for the Defendants
also pointed out to the Solicitor for the Plaintiff, the Plaintiff�s failure
to do likewise with the Plaintiff�s witnesses statements under the same order
for direction made by the Registrar. The Solicitor
for the defendants told the
Solicitor for the Plaintiff that because of that failure on the part of the
Plaintiff, the Solicitors
for the Defendants would object to the Plaintiff
calling those witnesses at the trial. The Solicitor for the Defendants also
suggested that $10,000.00 each party be paid out of the trust fund and the
balance would be transferred to a joint trust
account. By letter dated 30th
January 2001, Solicitor for the Plaintiff wrote back to the Solicitor for the
Defendants, accepting the $10,000.00 each party
suggestion. The Solicitor for
the Plaintiff also enquired whether or not the $10,000.00 in favour of the
Plaintiff was part
of the $20,000 ordered by the Registrar of the High Court.
The response was by letter dated 31st January 2001. The Solicitor
for the Defendants said the $10,000.00 was not part of the $20,000.00. ordered
by the Registrar
of the High Court. By letter dated 9th February
2001, the Solicitor for the Defendants told the Solicitor for the Plaintiff
that any expenses for the witness would
be restricted to the Plaintiff alone.
By letter dated 14th February 2001, the Solicitor for the
Defendants told the Solicitor for the Plaintiff that the costs of the
Plaintiff alone
would be $2,200.00. The cost for 8 witnesses to be called by
the Defendants was $10,240.00. These two amounts were set out in
the summons
above. In my view, I would reject this summons on the basis that the
Registrar�s Order of 24th July, 2000 remains intact following my
dismissal of the Defendants Notice of Appeal.
lass="MsoNormal" sal" style="margin: 1">
The Plaintiff�s Notice of Motion
ass="MsoNormal" sal" sal" style="margin: 1">
One of the matters raised in the laintiff�s Notice of Motion was the request for an order to extend time
beyond 19tsup>th January 2001. Again, Solicitor for the Plaintiff, was
slow to act. The date 19th January 2001 was a Friday. The Solicitor
for the Plaintiff could have applied to the Registrar by Summons to extend
time
under order 64 rule 5 of the High Court Rules. The Solicitor for the
Plaintiff did not do so. The Solicitor for the Plaintiff
waited until the 12th
February 2001. This was an error of judgment. The Solicitor for the Plaintiff
should have applied to the Registrar separately
by summons so that the
Plaintiff Notice of Motion to strike out the Defendant�s Notice of motion
would not be tangled up
with the need to obtain extension of time quickly to
regularise the Plaintiffs position. Even before me, Counsel for the Plaintiff
was not forthcoming on this point. Counsel seem to be unsure about this.
Counsel did however file an affidavit evidence to
explain why Counsel was not
able to fulfil the deadline of 19th January, 2001. Counsel despite
that, left this point unresolved and asked for an adjournment generally in
view of the uncertainty
of the arrival of the Plaintiffs witnesses in Honiara
including the Plaintiff himself and the Solicitor for the Defendants not
being
available the week following plus the uncertainty over the Solicitor for the
Defendant�s practising certificate. In
the result, I would make the no order
on this point. The Solicitor for the Plaintiff may wish to go back to the
Registrar
in the mean time for the purpose of regularising her position on
this point.
The conduct of the case by both
parties is confusideed. By a consent order for directions dated 12th
October 1999, discovery oery of documents were to be done within 28 days from 15th
October 1999. Inspection of documents was to be within 14 days thereafter.
Trial to be set down for Gizo on a date to be
fixed. By another Consent Order
dated 24th May 2000, inspection of documents was to be within 7
days from 24th May 2000 and that trial he fixed for Honiara with a
certificate of readiness to be filed. This was a variation Order. By letters
dated 24th, 25th and 29th May 2000, the
Solicitor for the Plaintiff sought permission from the Solicitor for the
Defendants to inspect documents. The
Solicitor for the Plaintiff did not get
response until 1st June 2000 when the Solicitor for the Defendants
said that the documents in their possession could be inspected during working
owing that letter of 1st June, 2000. The Registrar was also
informed of this by the Solicitor for the Defendants by letter dated 1st
June 2000. By a short letter dated 19th July 2000, the Solicitor
for the Defendants told the Registrar that no inspection had taken place. The
letter dated 24th October 2000, the Solicitor for the Plaintiff
told the Solicitor for the Defendants that she had not received the Letter of
1st June 2000 until July the following month. The Solicitor for the
Plaintiff said in her letter of 20th July 2000 had received no
formal reply from the Solicitor for the Defendants and therefore this delay
was slowing down the
progress of the case for the trial. The Solicitor for the
Plaintiffs letter of 24th October, 2000 was a response to the
Solicitor for the Defendants letter of 23rd October, 2000 addressed
to the Registrar in which he said the Solicitor for the Plaintiff had failed
to inspect documents.
The Solicitor for the Defendants also said that he was
ready for trial and gave notice that he would be filling a Certificate
of
Readiness for trial within 7 days. The response was a protest letter dated 22nd
November, 2000 in which the Solicitor for the Plaintiff pointed out to the
Registrar that she had received the documents
she had requested only on 14th
November, 2000 and said that the Certificate of Readiness should not be filed
prior to the completion of the discovery. The
Certificate of Readiness for
trial was filed by the Solicitor for the Defendants on 13th
November, 2000. In the meantime, the Solicitor for the Defendants filed a
Notice to procure documents on 12th February, 2001 in which the
Solicitor for the Defendants requested the documents to be produced within 2
days from the date
of filing of that Notice. Provisional listing of the case
for trial was set down for 19th February, 2001 at 9:30 any. As I
have said, the Solicitor for the Plaintiff, by this date, had yet to produce
the Plaintiff's
witnesses statements in compliance with orders for Directions
made by the Registrar on 30th January, 2001. The preparation for
the trial of the action was mixed up with three interlocutory matters. The
first was the
continuing correspondence over the release of fund $20,000 from
the trust fund as ordered by the Registrar on 24th July, 2000.
Second was the appeal by the Defendants arising from the Registrar�s Order of
24th July, 2000 above. The hearing date had been fixed but the
hearing had to be adjourned prior to Christmas. Third was the listing
and
hearing of the Defendants Amended Summons filed on 30th October,
2000 seeking to stay the Registrar�s order of 24th July, 2000
pending the Defendants appeal by the Defendants appeal and that the notice of
appeal be treated as an appeal to
a High Court ended summons sought an order
for leave to appeal to a High Court Judge. Alternatively, the amended summons
sought an order for leave to appeal our of the time and directions as to the
future conduct of the case. As I have said, this
Amended Summons was never
heard. However, with the dismissal of the Defendants appeal, the way is now
clear for the parties
to concentrate on the final steps towards the re-listing
of the action for trial. The purpose of my recording of the
action on the part
of each of the Solicitor is to enable me to decide where the cost should lie
in these interlocutory matters.
In my view, cost should be in the cause. My
orders are that -
1. & p; &nsp; tsp; the Defendant�s
Appe Appeal be dismissed;
2. &nbssp; the Defendan Summons bons be dismissed
<1">
3. p; &nsp; Cost be in the causen>>
class="Mso="MsoNormal" align="cent"center" style="text-align: center; margin: 1">
F. O. Kabui
Judge
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