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Gaskell v Gaskell [2013] SBHC 177; HCSI-CC 252 of 2011 (6 November 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

GRACE GASKELL
Applicant

AND:

JUNE GASKELL
1st Respondent

AND:

ATTORNEY GENERAL
2nd Respondent

Mr. D. Marahare for the Applicant.
Mr. P. Tegavota for the 1st Respondent.
No appearance for the 2nd Respondent.
Date of hearing: 28th October 2013.
Date of Judgment: 6th November 2013.

RULING ON APPLICATION TO RE-INSTATE CLAIM

Apaniai, PJ:

Introduction.

1. This is an application by Grace Gaskell ("Applicant") seeking to set aside an order by the Registrar dated 15 November 2012 striking out her claim pursuant to Rule 9.72(d) of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules") for failure to take steps in relation to the case within 12 months.
   
2. Under Rule 9.72, the Registrar has the power to strike out a proceeding without notice if there has been no step in the proceedings for 12 months.
   

Background.

3. It is important to repeat again the background to this application. They have been set out in the judgment of the Court of Appeal dated 5 November 2012 in Civil Appeal No. 31 of 2012.
   
4. The Applicant and her husband, Jack Gaskell, ("Jack") were registered as joint owners of parcel number 191-001-57 ("Property") situated at White River in Honiara. Jack died in September 1996, hence, by operation of law, the Applicant became the sole owner. However, that sole ownership has to be recorded in the land register before the Applicant could deal with the property. That has not yet been done to date.
   
5. By a transfer document dated 16 August 2007, the Applicant transferred the Property to the 1st Defendant who is her, and Jack's, daughter. Registration of the 1st Defendant as owner was effected on 22 November 2007.
   
6. On 25 November 2008, the Applicant and the 1st Defendant filed a claim against Philip Gaskell, ("Philip") in Civil Case No. 403 of 2008 ("CC 403"). Philip is the son of the Applicant but through a different person from Jack. He is the half brother of the 1st Defendant.
   
7. In that claim, the Applicant and the 1st Defendant sought possession of the Property against Philip who was refusing to vacate the Property. Orders were then made on 28 October 2009 granting possession to the Applicant and the 1st Defendant. The orders required Philip to vacate the Property by 12 noon, Friday 13 November 2009. Despite the orders, Philip refused to vacate the property. As a result, enforcement orders were taken out against him on 28 January 2010.
   
8. The Applicant then switched sides and went and lived with Philip. She applied to have the enforcement orders against Philip suspended. The court, however, refused the application on the ground that the property is now registered in the name of the 1st Defendant.
   
9. Having been unsuccessful in her application to suspend the enforcement orders, the Applicant commenced these proceedings on 12 July 2011 seeking rectification of the land register to have the 1st Defendant's title to the Property cancelled and to have the Property transferred back to her. She alleged that she had transferred the Property to the 1st Defendant through fraud. In the claim, she had also sought possession of the Property as well as damages.
   
10. However, on 22 July 2011, the 1st Defendant applied for contempt against Philip for refusing to vacate the Property. This was an application in CC 403. Judgment on that application was delivered on 5 October 2011 whereby the application was dismissed. In addition to dismissing the application, the court went further and granted an order for rectification to have the title transferred from the 1st Defendant to the Applicant.
    
11. Against that order, the 1st Defendant appealed to the Court of Appeal[1] ("CAC 31/12") which delivered its decision on the appeal on 5 November 2012 allowing the appeal and setting aside the order for rectification.
    
12. On 15 November 2012, the Registrar struck out this claim pursuant to Rule 9.72(d) for failure to take any step in the proceedings within 12 months.
    

Application.

13. The purpose of this application is to have the claim re-instated. It is noted that the last step taken in these proceedings was the filing of the 1st Defendant's Notice of Appearance on 28 July 2011.
    
14. The Applicant admits that no further step has been taken in relation to the claim since 28 July 2011 until 15 November 2012. However, she says that the contempt proceedings in CC 403 as well as the appeal to the Court of Appeal have disturbed the progress of the case and argues that the Registrar was aware of the Court of Appeal proceedings and should have taken that into consideration when deciding the question whether to strike out the case under Rule 9.72(d).
    

The Rules.

15. In making the order of 15 November 2012, the Registrar was exercising delegated powers under Rule 19.1(j). Where the Registrar makes such an order, Rule 19.10 requires that any review of such order can only be made on an application which must be made within 14 days after the making of the order. On such review, the court may confirm, vary or discharge (including set aside) the order.
    
16. So, the first noticeable defect in this application is that it was filed outside the 14 days period required for seeking discharge of the Registrar's order. Of course the court has discretion to extend or abridge time limits set under these Rules[2], but such extension or abridgment can only be made if application is made seeking such extension or abridgment. This was also not done here.
    
17. However, despite those defects, I must have regard to the overriding objectives of the Rules, one of which is to deal with cases justly[3]. Dealing cases justly includes ensuring that the parties address the real issues of the proceedings[4].
    

Court of Appeal Judgment.

18. In its judgment on CAC 31/12, the Court of Appeal said at p.9:
    

"It is clear that there is an issue in dispute between these family members which should be resolved quickly and finally. That could best be achieved by ensuring that in proceeding 252 of 2011 all necessary parties were before the Court and ensuring that the claim raised all relevant issues. .... In the circumstances any further proceedings for contempt against Philip Gaskell should be stayed pending finalisation of proceeding 252 of 2011."

19. The Court of Appeal then made orders staying the contempt proceedings against Philip Gaskell pending finalisation of civil case 252 of 2011.
    
20. Like the Court of Appeal, I too recognise that there are issues that need to be finally settled between these feuding family members. Dismissing the proceedings will not resolve these issues. These issues must be settled finally and quickly.
    

Application granted.

21. It follows therefore that despite the non-compliance with the Rules, I will exercise my discretion in granting the application to set aside the Registrar's order of 15 November 2012 to facilitate final settlement of the issues between the family members. I am satisfied that striking out the claim in the face of these family conflicts will not do justice in the case. To the contrary, it will do more harm than good if the issues remain unresolved between the family members.
    

Orders.

22. The orders of the court are:-
    

[1] The orders of the Registrar dated 15 November 2012 striking out Civil Case No. 252 of 2011 is set aside.

[2] Civil Case No. 252 of 2011 is reinstated.

[3] Leave to amend the claim is granted.

[4] The amended claim is to be filed and served within 14 days from the date of this order.

[5] The Defendants to file and serve amended defence within 14 days after service of the amended claim.

[6] Case to be listed for mention on 5th December 2013.

[7] Each party to meet his or her own costs.

THE COURT

James Apaniai
Puisne Judge

^[1] CA – Civil Appeal No. 31 of 2012.
^[2] Rule 26.6.
^[3] Rule 1.3.
^[4] Rule 1.4(a).