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Kwanae v Registrar of Titles [2010] SBHC 65; HCSI-CC 47 of 1999 (14 October 2010)

HIGH COURT OF SOLOMON ISLANDS
GOLDSBROUGH J

Civil Case No. 47 of 1999

BETWEEN:

GEORGE WINSTON KWANAE And CASPER LUIRAMO
Claimants

AND:

REGISTRAR OF TITLES
Defendant

Date of Hearing: 18 August 2010
Date of Decision: 14 October 2010

Tigulu D for the Claimant
Folomoetui L for the Defendant

DECISION

GOLDSBROUGH J:

1. On 24 February 1999 the claimant was granted leave to apply for an order of Mandamus against the Registrar of Titles in respect of Parcel Number 191-080-1. Since that date no proceeding has been filed or taken until 20 April 2010 when an application was made by the claimant to revive his action.
   
2. This is an application to revive, and thereafter if successful to amend, the claim. Evidence on the application was by way of sworn statements, there being little in dispute in terms of factual information on the issues raised on revival. Submissions were made both in writing and orally before the Court.
   
3. For the claimant it is submitted that his previous lawyer is to blame for this delay. That is contained in written submissions that have not been served on the previous lawyer. In this case and in other cases where it is submitted that a previous legal practitioners is at fault the Court has indicated that if the matter is to be considered notice then needs to be given to the previous legal practitioner and the opportunity for a response allowed. In this application counsel now acting for the claimant does not seek the time to serve the previous legal practitioner with the present allegations.
   
4. This court will not act upon any allegation of misconduct against a legal practitioner not presently representing any party to the case unless and until that legal practitioner has been given notice of the allegation and has been given an opportunity to answer the allegation. It cannot be that a party may seek to blame a previous legal practitioner by filing a sworn statement to that effect without having a corresponding obligation to draw that to the attention of the legal practitioner who is criticized. There may be circumstances where this can be appropriate, for example where that legal practitioner is no longer within the jurisdiction, but not where he or she is still practising and available to be served and respond.
   
5. At some point since 1999 on seeing that no step had been taken, it was open to the Registrar of the High Court to issue a Notice to Show Cause as to why the proceedings should not be struck out. Under the previous Civil Procedure Rules the claimant could not take any further step without leave after a period of inactivity exceeding twelve months. Under the present Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR) the Court may strike out with (6 months) or without (12 months) notice following inactivity.
   
6. Under either set of Rules since there had been no activity for a period of more than ten years this case was a prime choice for being struck out. Even if the claimant could demonstrate with absolute certainty and beyond doubt of any sort that the blame for inactivity rested elsewhere, it could still not be said that the claimant retained the right to proceed after not proceeding for a decade.
   
7. In this instance there is the additional consideration of what, if anything, remains to be revived. The only order made in these proceedings is an order granting leave to apply for judicial review. That leave sanctioned the moving of a motion in the High Court seeking mandamus. No motion has ever been filed. Whilst the 1964 Rules did not provide a time limit within which a motion was to be filed, as could be found in the equivalent England and Wales Rules on which they were based, it cannot be that leave granted remains in force indefinitely.
   
8. Given that there was a bar on taking any further step without leave after an inactive period of twelve months, then at the very most leave to move a motion could not survive without intervention after that twelve months. In England and Wales the equivalent time limit was three months. Presently it is that the proceedings must be commenced within six months of the decision complained of, although that period may be extended if required by 'substantial justice'. Nowhere can there be found authority for a claimant to act ten years after being granted leave.
   
9. Further support for the view that this grant of leave cannot now be acted upon comes from consideration of the Limitation Act and, to a lesser extent, the Interpretation and General Provisions Act. Section 6 of Cap 18 and Section 53 of Cap 85 are useful in that regard.
   
10. There is no provision for an application to revive to be found in the present CPR. One does not now. For example, seek condonation of late filing but the question of the use to which a document filed late may be put becomes an issue. However, given that the parties to this case are before the court and have argued the question as to whether this case may proceed further, I am content that the relevant issues have been aired and that the Court may now exercise its power to strike out this claim for the reasons set out above.
    

Dated this 14th day of October 2010.

GOLDSBROUGH J