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Piruku v Whitney [2008] SBCA 6; CA-CAC 30 of 2007 (18 July 2008)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

On the 22nd of August 2006, the summons which had been issued by the present appellant on the 31st of May 2007 came before Justice Brown. On that day there was no formal appearance on behalf of the applicant and in the circumstances his Lordship dismissed the summons. In the view of this Court he was entirely justified in doing so. But his Lordship went on to make an order that the plaintiff’s notice of motion of the 25th of May 2005 be permanently stayed. It would appear that respondents to the summons of the 31st of May 2007 who were present in Court on that day, did not formally ask for that order; it appears the first they were aware of it was when that order was pronounced as part of the reasons delivered by his Lordship on that day, but those parties acquiesced in what transpired. There was no submission made to his Lordship that such order ought not be made. The present appellant appealed formally against the dismissal of the summons. But it is quite clear that all parties, in particular the respondents to the appeal, came to Court today to argue in support of the whole of the judgment of his Lordship delivered on the 22nd of August 2007. In the view of this Court, his Lordship erred in ordering the stay of the notice of motion. That deprived the applicant of the opportunity of placing material before the Court which may have established that the applicant was entitled to some or all of the relief claimed therein. In the circumstances, the appeal should be allowed to the extent of removing the stay placed on the notice of motion of the 25th of May 2005. Otherwise the appeal should be dismissed. The removal of the stay will enable the parities to that notice of motion to proceed to have it disposed off one way or another. Because of the delay which has taken place in connection with this matter, the parties are urged to act expeditiously in having that summons resolved. The Court also notes that there is some suggestion in the material that the notice of motion may have been withdrawn with respect to some or all of the respondents thereto prior to 22nd August 2007. The Court’s removal of the stay does not prevent any party from contending in the future that in fact the summons had been withdrawn with respect to some or all of the parties thereto. That leaves the question of costs. The fourth and fifth respondents to the appeal have asked for an order for costs, but there has also been a submission that each party should bear their own cost. In the circumstances, the Court is of the view that, given the way in which the matter was dealt with on the 22nd of August 2007 and the fact that the parties as indicated by their outlines came to this Court prepared to argue in support of the whole of the order made on that day, the appropriate order is that each party should bear it’s own cost of this appeal. The orders of the Court will therefore be: allow the appeal to the extent of removing the stay imposed on 22 August 2007 on the notice of motion of 25 May 2005. Otherwise the appeal is dismissed; each party is ordered to bear its own cost of and incidental to the appeal.

Williams JA
Vice President

Goldsbrough JA
Member

Adams JA
Member