Arrow Air Inc. v Minister of Tourism et Al

• Jurisdiction: Bahamas
• Judge: Osadebay, J.(Ag.)
• Judgment Date: 02 June 1994
• Court: Supreme Court (Bahamas)
• Docket Number: No. 1013 of 1993
• Date: 02 June 1994

Supreme Court

Osedebay, J.

No. 1013 of 1993

Arrow Air Inc

and

Minister of Tourism et al

Appearances:

Mr. John Deal for the plaintiff holding brief for Mr. Oswald Isaacs.

Mrs. Judy Whitehead for the 1st and 3rd defendants

Mr. Ferron Bethell for the 2nd defendant.

Practice and procedure - Plaintiff seeking an order that the time limited for appealing against the order of the Registrar of the Supreme Court be extended to the date of the hearing of the appeal and the time limited for filing and serving a statement of claim in the action be extended to 7 days from the determination of the appeal — No good reason to justify the grant of an extension of time or period to enable compliance with the Registrar's order — Appeal dismissed.

Osadebay, J.(Ag.)

1 This is an appeal against the order of the Registrar of the Supreme Court dated the 25th day of March, 1994, ordering that, the writ of summons filed in this matter on the 10th September, 1993 do stand dismissed unless before the expiration of 21 days of the date of the order the plaintiff filed and served on the defendants a statement of claim and that the costs of that application be the defendant's in any event. By this appeal, the plaintiff asked for an order that:

• (1) The time limited for appealing against the order be extended to the date of the hearing of the appeal and

• (2) The time limited for filing and serving a statement of claim in the action be extended to seven (7) days from the determination of this appeal

2 After hearing and considering all the facts and submissions, the appeal was dismissed with costs to the second defendant to be taxed if not agreed with full reasons to be given later, which reasons I now give.

3 There was a complete rehearing of the application of the plaintiff consistent with the practice under Order 58 of the Rules of the Supreme Court of The Bahamas.

4 This action was commenced by a generally endorsed unit filed by the plaintiff on the 10th of September, 1993. The writ was served on the defendants. Suffice it to say that appearances were entered by counsel for the various defendants as I need not go through the recitation of the change of attorneys which occurred. It is not relevant to my decision. The appearances were entered for the defendants on the 19th and 20th September, 1993.

5 On the 18th March, 1994, the plaintiff having not served a statement of claim within the period of 14 days after appearances were entered as stipulated in Order 18 r 1. of the Rules of the Supreme Court, the 2nd defendant through its counsel filed a summons pursuant to Order 19 r. 1. Of the R.S.C. asking that the Writ of Summons issued herein be struck out and that the action be dismissed as against the 2nd defendant. Also on the 24th March, 1994, the 1st and 3rd defendants through their counsel filed a summons, similar to that filed by the 2nd defendant, asking that the Writ of Summons herein be struck out and the action against 1st and 3rd defendants be dismissed with costs.

6 Both summonses were jointly heard by the Registrar on the 25th of March, 1994, after which the Registrar made the following order:

7 Order

“Dated the 25th day of March A.D. 1994

Before the Registrar of the Supreme Court Mr. Nathaniel Dean UPON HEARING Judith Whitehead of counsel for the first and third defendants, Ferron Bethel of counsel for the second defendant and John Z. Deal of counsel for the plaintiff AND UPON READING the summonses dated the 18th March, 1994 and the 24th March, 1994.

IT IS ORDERED that the Writ of Summons filed herein on the 10th September, 1993 do stand dismissed UNLESS before the expiration of 21 days of the date hereof the plaintiff do file and serve on the defendants a Statement of Claim AND that the costs of this application be the defendants' in any event.

By Order of the Court”

8 This order can be referred to as an “Unless” Order. The plaintiff was allowed an extension of 21 days within which to file and serve its Statement of Claim with a condition that the action “do stand dismissed UNLESS before the expiration of 21 days” of the date of the order the plaintiff, complied with the order.

9 The plaintiff was represented by counsel at the hearing of the said applications by way of summons and therefore the plaintiff was congisant of the order and the condition stipulated therein. In addition to that, on Wednesday, 6th April, 1994, following the perfection of the (Unless” Order, the same was served on the attorneys for the plaintiff.

10 On the 15th day of April, 1994, one day after the expiry of the period granted by the “Unless” Order, the plaintiff sought to comply with the said order by filing a Statement of Claim. On the 22nd day of April, 1994, the plaintiff filed a Notice of Appeal against the said Registrar's “Unless” Order seeking by way of an appeal an extension of the period stipulated in the said Registrar's Order and which Notice of Appeal was subsequently amended on the 12th of May, 1994 and reads as follows:–

11 Amended Notice of Appeal

12 Take notice that the above named plaintiff Arrow Air Inc. intends to appeal against the order of the Registrar dated the 25th day of March, A.D. 1994 ordering that the Writ of Summons filed herein on the 10th September, 1993 do stand dismissed unless before the expiration of 21 days of the date hereof the plaintiff do file and serve on the defendants a Statement of Claim and that the costs of the application be the defendants' in any event.

13 AND FURTHER TAKE NOTICE THAT you are required to attend before a judge of the Supreme Court, in Chambers, Bitco Building, East Street North, on Tuesday the 17th day of May, A.D. 1994 at 11:30 o'clock in the forenoon on the hearing of an application on the part of the plaintiff for an order that (1) the time limited for appealing against the order be extended to the date of hearing of this appeal, and (2) the time limited for filing and serving a Statement of Claim in the action be extended to seven (7) days from the date of determination of this appeal.

14 AND FURTHER TAKE NOTICE THAT it is the intention of the said plaintiff to attend at hearing of the appeal by counsel.

15 Dated the 11th day of May, A.D. 1994.

16 Roberts, Isaacs & Co.

17 Chambers

18 Rigarno Building

19 Bay Street

20 Nassau, The Bahamas

21 The plaintiff in support of its appeal filed an affidavit on the 12th May, 1994, which affidavit was sworn to by “S Oswald A. Isaacs”. Because of the importance of the content of this affidavit to this appeal, I shall, dispensing with most of the formal parts, recite the whole affidavit:

22 Affidavit

23 I. S. OSWALD A. ISAACS of the Eastern District of the Island of New Providence, one of the Islands of The Commonwealth of The Bahamas, Attorney-at-Law, make oath and say as follows:

1

That I am a partner in the law firm of Messrs. Roberts, Isaacs & Co. and have the conduct of this matter on behalf of the plaintiff and I am authorized to make this affidavit on its behalf. 2. That the Writ of Summons was filed in this matter on the 10th September, 1993 and was served on the defendants on the 14th day of September, A.D. 1993. 3. That by this action the plaintiff claims damages in respect of the collision of the plaintiff's aircraft Douglas D.C. – 8 – 62 Registration Number N42086 with Ladeco Aircraft B–757 Registration Number CC-CYG at Nassau International Airport on the 13th day of March, A.D. 1993 caused by the negligence of and/or breach of statutory duty of the defendants, their servants and/or agents. 4. That, an appearance was entered on behalf of the second and third defendants by the Attorney General's Office on the 17th September, 1993. 5. That an appearance was entered on behalf of the 1st defendant by of the Attorney General's Office on the 19th October, 1993. 6. That on the 24th November, 1993 a Notice of Change of Attorney was filed and served by Messrs. Harry B. Sands and Co. on behalf of the second defendant. 7. That on the 11th January, 1994, a Notice of Change of Attorney was filed and served herein by Messrs, Graham, Thompson & Co. on behalf of the first defendant. 8. That on the 24th March, 1994, a further Notice of Change of Attorney was filed and served herein by Messrs. Graham, Thompson and Co. on behalf of the third defendant. 9. That on the 22nd March, 1994, the second defendant applied by summons for an order pursuant to Order 19 rule I of the Rules of the Supreme Court; 1978 for an order that the Writ of Summons issued herein on the 10th day of September, 1993 be struck out and that the action be dismissed as against the second defendant for want of prosecution, the plaintiff having failed to serve a Statement of Claim within the period prescribed by the Rules. This summons, returnable on the 25th March, 1994. was served on the plaintiff on the 22nd March, 1994. 10. That on the 24th March, 1994, the first and third defendants by their counsel filed and served on the plaintiff a summons in the same terms as the second defendant's said summons. The first and third defendants by their counsel also served on the plaintiff a letter advising that if the plaintiff prevailed in the defendant's application to strike for want of prosecution, the first defendant nevertheless intended to rely on, inter alia, section 1 (F) of the Regulations Concerning Airport use contained in the Aeronautical Information Publication and the case of British Airports Authority v. British Airways Board QBD 1991 and invited the plaintiff to consider discontinuing its claims against the first and third defendants in light thereof and to revert to them. That there is produced and shown to me marked S.O.A.I. 1 a true copy of the said letter. 11. That on the 25th March, 1994 the learned registrar ordered that unless the plaintiff filed and served its Statement of Claim on the defendants within twenty-one (21) days the action would stand...