IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name: 	Willem Johan Van Vlymen v Lever Solomon Ltd 	
		
Citation:		
		
Decision date: 	18 October 2019	
		
Nature of Jurisdiction	Application for leave to appeal from Judgment of The High Court of Solomon Islands (Faukona J)	
		
Court File Number(s):	18 of 2019	
		
Parties: 	Willem Johan Van Vlymen v Lever Solomon Limited and Russell Plantation Estates Limited	
		
Hearing date(s): 	7 October 2019	
		
Place of delivery: 		
		
Judge(s): 	Goldsbrough P
Gavara-Nanu JA	
		
Representation: 	Mr. Sullivan JQ.C and with him Kingmele R for the Appellant
Mr. Burchett S and Willy A for the Respondent	
		
Catchwords: 		
		
Words and phrases:		
		
Legislation cited:	Court of Appeal Act, s11 (2) (f) [cap 6]
Legal Practitioner Act	
		
Cases cited:	Price waterhouse v Reef Pacific Trading Ltd [1996] SBCA 5	
		
ExTempore/Reserved:	Reserved	
		
Allowed/Dismissed:	Leave Granted 	
		
Pages:	1-9	

JUDGMENT OF THE COURT
1. 	This is an amended application for leave to file a renewed application for leave to appeal to the Full Court of Appeal out of time. That leave application was filed on 19 September 2019, followed by a further amended renewal of application to the Full Court and other applications filed 4 October 2019.
Events leading to the application for leave
2. 	This matter began with a civil claim for damages filed 17 August 2018. The sum claimed is somewhat in excess of SBD 32 million.
3. 	By 6 September 2018 the applicant had, through his legal practitioner, filed a document headed “Conditional Response” although the document itself contained nothing but the name of counsel appearing for the applicant and the address for service.
4. 	On 19 September 2019 an application was made in the High Court by this applicant seeking to set aside service of the original claim. This, perhaps, was what was conditional about the earlier response. It did not have with it a sworn statement in support as envisaged by Rule 7.5(b) of the Solomon Islands Courts (Civil Procedure) Rules 2007. (CPR)
5. 	In the absence of a sworn statement, the High Court Registry asked twice of the applicant if a sworn statement was to be filed. No reply was received to either of those requests. Nevertheless, the application was set down for a hearing on 4 March 2019. There is no evidence to indicate when that hearing date was fixed and the filed application returned to counsel for service, although the Notice of Hearing is dated 28 November 2018.
6. 	Events had, prior to 28 November 2018, already overtaken the application as default judgment had been sought (by application filed 12 October 2018) and obtained (on 16 October 2018).
7. 	An application to set aside the default judgment was filed and given a hearing date also of 4 March 2019 before the same judge. Both matters were heard together and an order reflecting the judgment was signed on the same day.
8. 	Neither the applicant nor his legal representative attended the scheduled hearing and a written request from the legal practitioner of the applicant to adjourn the hearing was considered by the Court and refused.
9. 	It is this decision, encapsulated in the order of 4 March 2019, which is the subject of the appeal. As between the parties to this matter that order is taken to be an interlocutory order and thus subject to the rules relating to appeals against such orders as opposed to final orders. These are governed by section 11 (2) (f) of the Court of Appeal Act [Cap 6] which requires leave to be sought and obtained prior to an appeal and Rule 10 (2) of the Court of Appeal Rules made under Cap 6.
10. 	The application for leave was filed on 17 May 2019. It was refused on the papers by a single judge of the Court of Appeal and that decision was communicated to counsel for this applicant on 31 May 2019 and acknowledged as having been sent directly to the applicant following his request on 5 June 2019.
Material available to the Court
11. 	As the Registrar considered the application for default judgment, there was already filed an application to set aside service of the claim. There was no inter partes nor ex parte hearing on the application for default judgment as it was considered on the papers. Those papers included four sworn statements, three relating to service and one relating to the claim itself. As previously referred to, there was a conditional response to the claim but no sworn statement supporting the application to set aside service.
12. 	At the hearing of the two applications on 4 March 2019 neither the applicant nor his counsel appeared. The claimant appeared through counsel. There was a message from counsel for the applicant that he was unavailable and seeking an adjournment, and the sworn statement of that counsel which had been filed in support of the application to set aside the default judgment, filed the same day as the application. There was the conditional response and all of the earlier material that had been available to the Registrar on the court file. Nothing in addition had been filed in support of either application on the part of the applicant, so the last step taken by the applicant or his counsel in the proceedings was the sworn statement in support from counsel himself filed 24 October 2018.
13. 	For the first leave application there was a sworn statement of counsel for the applicant. There was nothing from the applicant in person.
14. 	With the first attempt at renewal of the application by the Full bench there was an affidavit from the applicant filed 12 July 2019, and for the further amended renewal of application there is an affidavit of the application filed 4 October 2019. Included in the affidavit of 4 October 2019 is, inter alia, a draft defence to the claim.
Applicable law
15. 	On this application there is no issue that the Full Court has discretionary power to grant the various leaves sought even though sought out of time and in a further amended renewed application. The principles on which that discretion may be exercised are discussed in Price Waterhouse v Reef Pacific Trading Ltd [1996] SBCA 5.
16. 	The rules relating to default judgment are contained in CPR Chapter 9 in particular 9.71.
Discussion
17. 	It is conceded by counsel for the applicant that the material previously made available to the Court was inadequate to achieve the grant of leave as requested. There is now additional material available, subject to the grant of leave to amend the renewal application and receive that material. That material is said better to reflect the position of the applicant and present a fuller picture, including a draft defence. That draft defence is necessary to show that the grant of leave has behind it some real purpose.
18. 	We determined that we would hear the substantive application and the requests for leave together for the sake of convenience and therefore read the additional material prior to making any decision.
19. 	It is, regrettably, apparent from that material filed by the applicant on 4 October 2019 that there were errors and omissions contained in earlier material filed by him. Whilst the following examples are by no means meant to be exhaustive there are two issues which perhaps best illustrate that scenario. In an affidavit of 12 July 2019 the applicant says that he had not been advised by his legal practitioner of the March 2019 hearing date in advance. In his later affidavit he says that his legal practitioner had told him of that date by mid to late February 2019. He says that through that lack of knowledge he was deprived of the opportunity to attend the hearing even if he had wanted to attend. Given his later evidence of knowing about the hearing, that evidence also looks to be, at the least, misleading.
20. 	Focus in the sworn material of the applicant is on two issues, service of the claim and failure on the part of his legal practitioner to act in a professional manner. We cannot determine anything based on the alleged failure of the legal practitioner in this judgment but instead look at what the applicant did himself to promote his own cause.
21. 	The applicant knew that he wished to challenge service of the claim on him. Up to and including the hearing to set aside service of the claim on 4 March 2019 he did not file any material himself setting out why service should be set aside. The version of events which he now sets out in his most recent affidavit to this Court about not hearing what was said when service was attempted at the Heritage Hotel where he was in the same room as a Mr John Whiteside and observed people knocking on that hotel room door and speaking to Mr Whiteside was not available for the earlier hearing.
22. 	What was available was nothing more than the sworn statement of his own legal practitioner asserting that personal service had not been effected. Quite what use could be made at a hearing of such a sworn statement remains, to us, a mystery. In short, even if the hearing of 4 March had been effective, which it was not, the likelihood of success for the applicant was not strong. We do find that, on balance, a properly directed judge could have found against the applicant on the available material.
23. 	Any legal practitioner for the applicant, without any further sworn statement from his client, would have had difficulty challenging the evidence of the process server who said that the applicant was in the room and that the applicant could see and hear what was being said at the door of the room. One process server said the applicant was looking and listening from inside the room to which they were denied access by a Mr. Whiteside and the second said that the applicant saw and heard the conversation between his colleague and Whiteside.
24. 	The hearing, though, was not attended by the applicant or his legal practitioner so whatever additional material may have been available was never presented. Given that he had nothing to work with, the failure of the legal practitioner to attend the hearing did not substantially affect the likely outcome.
25. 	Having at best attempted to mislead the court in his 12 July statement, at worst lied, the applicant then seeks, through his new material, the indulgence of this court in the grant of leave. We note at this point that it was a different legal practitioner who drafts the 12 July sworn statement for the applicant and not the legal practitioner whose professional conduct has been called into question before us.
26. 	Setting aside service and setting aside the default judgment were both sought on the basis of the same issue and material, defect in service. If the one failed, so must the other on the material now brought by the applicant. We feel that, on the grounds relied upon by the applicant, being without merit, there is no basis for the grant of leave. We note that to allow this court to determine the matter with a full picture it may be necessary to grant leave for the further amended renewal application and material and to that extent we grant leave. But the picture we find on the grounds relied upon does not indicate the grant of leave to appeal against either the decision to set aside service or the default judgment.
27. 	We note, however, the circumstances in which the Registrar entered default judgment. This issue was not pressed as a reason for the grant of leave but is a matter that we considered relevant.
28. 	When considering, on the papers, the application for default judgment the Registrar had the usual material in the form of the application, the claim, and sworn statements of service. Equally before her was the Conditional Appearance and Application to Set Aside Service. She was aware, then, that there was an issue as to service. The Registrar also knew that the applicant had not submitted to the jurisdiction of the court through his conditional appearance.
29. 	Under previous rules it was well understood that where an appearance remained conditional no further step could be taken until that appearance became unconditional. In this instance it may be the appearance would only become unconditional after a decision had been given on service. That decision on service could not be made by the Registrar of the High Court but is reserved for a judge of that Court. That decision was awaited, and so, on one view, no application should have been made for default judgment. Similarly, if such an application was made, it should have been deferred pending a decision on service.
30. 	There is also an argument that once a conditional appearance had been entered, time to file the defence stops running until the appearance becomes unconditional. Thus, it could be said that the time to file the defence in this case had not expired when the judgment in default of defence was sought or entered.
31. 	It is for this reason, to protect the integrity of the process, that we determine leave to appeal the decisions of 4 March 2019 should be granted to allow a fuller examination of the process followed leading to the default judgment. This will permit, inter alia, full submissions to be made on the effect of a Conditional Appearance and whether, whilst that appearance remains conditional, any further step may be taken in the proceedings under the present CPR. It will also permit an examination as to whether this particular filed document headed ‘conditional appearance’ should properly be treated as such. These matters are not dealt with under CPR and have not, since those rules were made, been considered by this Court.
32. 	The respondents’ costs of and incidental to this application to the Full Court leave are to be paid by the applicant, such costs to be assessed if not agreed including certification for overseas counsel.
33. 	A housekeeping matter arises. In an affidavit in response to criticism of his conduct, former counsel for the applicant insists that he has a right to participate in his country’s electoral process. It should be clear to him that nothing which has been said on this application seeks to challenge that right. What is questioned, though, is how a legal practitioner who chooses active participation in the electoral process to the potential detriment of a client or clients, should conduct him or herself. To write a letter demanding an adjournment just because of electoral process commitments, at short notice and accompanied by non-attendance at the same hearing will not always be a route to success. This letter writing request behaviour is not confined to the electoral process and, frankly, nothing new.
34. 	It seems to us that before behaviour such as this results in a disciplinary hearing under the Legal Practitioners Act, the Bar Association should meet and, following consultation with other stakeholders, issue advice to its member on how to deal with this. It would be even more useful if this advice preceded the next General Election.
35. 	In the event leave as requested is granted. The orders made are; -
a.	the applicant is granted leave to renew his application for leave to appeal to the Full Court and granted leave to amend that renewed application and leave to file additional material thereon and
b.	the applicant is granted leave to appeal and
c.	the applicant pay to the respondent their costs of and incidental to the application to be assessed if not agreed including certification for overseas counsel.
Goldsbrough (P)
Gavara-Nanu (JA)
Member