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Axiom KB Ltd v Tovosia [2023] SBHC 1; HCSI-CC 523 of 2019 (15 March 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 523 of 2019

BETWEEN

AXIOM KB LIMITED
Claimant

AND:

HON. BRADLEY TOVOSIA (MINISTER FOR MINES, ENERGY AND RURAL ELECTRIFICATION)
First Defendant

AND:

ATTORNEY GENERAL
Second Defendant

Date of Hearing: 29 August 2022
Date of Ruling: 15 March 2023

Mr. J Taupongi for the Claimant
Mrs. V. Muaki for the 1^st and 2^nd Defendant

RULING ON APPLICATION FOR DEFAULT JUDGMENT

Faukona Rex, DCJ:

1. This is an application for Default Judgment pursuant to r19.17 of the S.I. Courts (Civil Procedure) Rule 2007.
2. Since the claim is against the Crown, and because of its failure to file defence within the specific prescribed rule that guide the processes of claim for judicial review, the Claimant had applied for leave which was granted on 22^nd June 2020, to file application for default judgment which it did as in paragraph (1) above.
3. Pursuant to rule 15.3.12, the defendant must file defence within 14 days of service of the claim for judicial review.
4. In this case the claim was served on the Office of the Attorney General on 30^th September 2019, and served on the first Defendant on 1^st October 2019.
5. After lapse of one month and five days the Claimant filed application for leave to file for default judgment against the Crown. At that very moment there was no defence filed as yet. However application was filed on 17^th August 2020.
6. The major pre-requisite issue to be considered at hearing of the application for default judgment, is for the Crown to explain its reasons for failure to file a defence on time, see the case of Tausuli V Kikele^[1].
7. In an attempt to explain its delay, the Crown Counsel refer to her own sworn statement filed on 29^th September 2020. The sworn statement was indifferent from the one filed on 19^th February 2020 which purported to support the Crown’s case in an application for leave. In fact there is no difference in terms of substance.
8. In her sworn statement she referred to her memo dated 31^st October 2019, written to the first Defendant to provide instructions and relevant documents to assist her file defence. And whether his decision to reject the Axiom KB Limited’s application to export be defended.
9. Apparently on 31^st October 2019 was the first letter of contact requesting provision of instructions. Even on that date, 14 days had already gone by 12^th October 2019, yet no response or defence was filed.
10. Continuous failure to provide instructions prompted the Counsel to send an email on 4^th November 2019 and another letter on 5^th December 2019. By then the delay was extended beyond any remedy.
11. I noted the Defendants had filed their defence on 6^th February 2020, which is treated for our purpose, as a draft defence.
12. In numerous occasions the same excuses were given by the Crown Counsels for delay in filing defence. This reflects a decent office falling in standard of performance, describe as disreputable. In the case of Dikei Construction V AG^[2], the Crown also mitigated the same reasons, though conclusion is different.
13. The office of AG is treated as one of the highest ranking office in the country. That office holds the status as Legal Advisor to the Government.
14. To perceive that Office as having higher status when in fact is annoying and demeaning in its staff performance. This kind of work performance should not be allowed to continue, but lessons have to be learned.
15. Look at the draft defence intended to be a defence, it was filed late by 4 months and 6 days.
16. Even at its current status, the Counsel for the Crown advocates that there is merit in the defence. This is not the time to raise meritorious defence. It is premature. It will come later if and when an application to set aside is filed and heard. Meantime I must grant default judgment against the Crown, for the reasons alluded to above.

Orders:

1. Application for Default Judgment granted against the Crown.
2. Cost of this application be paid by the Crown on standard basis.

The Court.
Hon. Justice Rex Faukona.
DEPUTY CHIEF JUSTICE.

^[1] [2012] SBHC 45; HCSI-CC 534 of 2011 (11^th May 2021).
^[2] [2016] SBHC 103; HCSI-CC 26 of 2015 (13 July 2016.