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Yu v Kelly [1998] SBHC 87; HCSI-CC 50 of 1997 (26 May 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 50 of 1997

TOM YU

-v-

SETHUEL KELLY

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
Civil Case No. 50 of 1997

Hearing: 22^nd May, 1998
Ruling: 26th May, 1998

A. TALASASA for the Applicant/Defendant
A. RADCL YFFE for the Respondent/Plaintiff

PALMER J.: This is an application for extension of time to enable the Applicant seek leave to file a notice of appeal.

The circumstances surrounding this relate to the Orders of this Court dated 2nd March, 1998, which inter alia required the Applicant to lodge a deposit of $10,000.00 as security for wasted costs within 21 days. The Applicant objected to the inclusion of this order and so filed appeal on 11th March, 1998. Unfortunately, section 11 (2)(f) of the Court of Appeal Act, required leave of “the Judge or Court of Appeal” from any interlocutory order or judgment of this Court. No such leave had been obtained. By the time this defect was brought to the attention of the Applicant the time limit required for leave to appeal to be filed had expired (Rule 10(2) of the Court of Appeal Rules, 1983. I note the Applicant was not represented at the said time when he purported to lodge his notice of appeal. He is now represented by learned Counsel, Mr. Talasasa.

In his affidavit filed in support of this application, Mr. Kelly states that he received the letter from the Registrar of High Court advising of the defect, on 26th March, 1998. On 16th April, 1998, he filed this application for extension of time to file an application for leave to appeal.

The only objection raised by Mr. Radclyffe relates to the manner in which the Applicant in person had conducted his case resulting in much delay and inconvenience to the Respondents. Mr. Radclyffe points out that the Applicant should not be given the opportunity to take advantage of his ignorance of the law and thereby failed to comply with prescribed time limits which have been enacted for the efficient resolution of disputes.

Whilst it is correct to say that ignorance of the law is no defence on one hand, it is not a requirement in law that parties must have professional representation as stated by his Lordship Awich J in his judgment dated 27th February, 1998 at page 2. At the same time, even if the court is of the view that the Applicant should seek professional representation and give opportunity for that, it cannot compel the Applicant to do that. In this instance, I note there had been a delay of some three weeks before the application for extension was filed. Whilst in some situations such delay may be regarded as inordinate and excessive, in the circumstances of this case, I cannot say the same, even in the absence of any explanation. To deny the Applicant extension of time would work a greater injustice to his right to file application for leave to appeal. At least, I do note in his favour as well that he now has obtained the services of Mr. Talasasa and should be able to comply with time limits prescribed by law. I am not satisfied extension should be denied.

ORDERS OF THE COURT.

1. Allow extension of time to file leave to appeal for a further period of seven (7) days with effect from date of this Ruling.

2. Costs of this application in any event to be borne by the Applicant/Defendant.

THE COURT.