Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Whiteside v Lilo [2015] SBHC 17; HCSI-CC 248 of 2013 (10 March 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS.

(Faukona PJ)

CIVIL CASE NO. 248 OF 2013

BETWEEN:

JOHN WHITESIDE
Claimant

AND:

GORDEN DARCY LILO
First Defendant

AND:

TRADEWIND INVESTMENT COMPANY
LIMITED (T/A The Island Sun Newspaper)
Second Defendant

AND:

PRIESTLY HABRU
(As Editor of the Island Sun Newspaper)
Third Defendant

AND:

RICHARD TOKE

(As Journalist of the Islands Sun Newspaper)
Fourth Defendant

AND:

ERNEST TA'ASI

(As Journalist of the Islands Sun Newspaper)

Fifth Defendant

AND:

BEN BILUA
Six Defendant
(As Journalist of the Islands Sun Newspaper).

Date of Hearing: 6th March 2015
Date of Ruling: 10th March 2015

Mr D. Nimepo for the Claimant
Ms N. Tongarutu for the First Defendant
Mr G. Faaitoa for the Defendants (2) –(6)

RULING ON APPLICATION FOR DISCLOSURE.

Faukona J: A claim in category A was filed by the Claimant on 16th July 2013. Basically, the claim seeks an order for damages for libellous words alleged to have been uttered by the Defendants in Social media on various dates that is on 10th – 11th June 2013, 18th June 2013 and 20th June 2013.

2. On 9th August 2013, the first Defendant filed his defence. The rest of the Defendants failed to file any defence within time allowed by the Rules. In consequential to that the Claimant therefore filed an application for default judgment on 29th August 2013. That application was never heard until 26th August 2014 where it was abandoned and the Claimant had agreed that leave be granted for second to sixth Defendants to file their defence by 8th September 2014, a year after the claim was filed.

3. By order of this Court on 26th August 2014, the first Defendant was to disclose to Court all documents in his possession by 1st September 2014, as requested by the Claimant in his request for further and better particulars filed on 16th October 2013.

4. The first Defendant had failed to comply with that order and no documents were filed with the Court on 1st September 2014. That failure has prompted the Claimant to file this application so that the first Defendant is ordered to attend Court and disclosed documents on oath. And should he continue to fail a judgment should be entered against him.

5. Counsel advocate for the first Defendant submits that documents had been prepared towards end of last year. However, general elections have distorted completion and disclosing of the documents.

6. It would appear Counsels have misconceived the true nature of this application. Hence, indulged themselves in arguing about effectiveness of service, Claimant's leniency towards the other parties and not the first Defendant and so on.

7. What the application sought or calls for is an order by the Court for the first Defendant to attend Court in the future, and disclose documents on oath. Meaning giving time for the first Defendant to come forward in court and disclose documents on oath, on a date to be fixed for that matter. The Claimant had seen it fit and necessary because the first Defendant had failed to disclose documents on 1st September 2014.

8. If the first Defendant failed to come to Court and disclose those documents on oath then the second order sought is for a judgment be entered against him.

9. The second order sought is being the consequent of failure or non-compliance with first order, which may seem putting an end to the first Defendant's case. A defence, which had been filed cannot be struck out or dismissed for non-compliance with orders for direction. Rule 1.16 states that failure to comply with a direction of the court is an irregularity and does not make a proceeding, or a document, step taken or order made in a proceeding, a nullity. The Rules of the Court is clear, however, Rule 1.17 further states that if there is failure to comply with a direction of the Court, the Court may resume and make one or more orders as it deem fit out of the six orders as stated in that rule.

10. In this case, the proper order to make if the first Defendant fails to comply is for the court to declare a document ineffectual. It means should the first Defendant fails to disclose documents on oath, then the Court can declare any document that may be produced in later course at trial, in support of his case ineffectual, or cannot be admitted as evidence in Court. It is totally inappropriate and unnecessary to enter judgment against the first Defendant at this stage, it does not warrant it at all.

Order:

1. That first Defendant attends Court sitting on 26th March 2015, 3 pm to disclose documents on oath.

2. Should the first Defendant fails, any document he wishes to rely on and intend to tender to Court at trial is ineffectual and cannot be admitted or accepted as evidence.

3. Cost is to be paid to the Claimant.

The Court.