Cat Island Air Company Ltd v Nassau Airport Development Company

JurisdictionBahamas
JudgeBain, J.
Judgment Date30 September 2014
CourtSupreme Court (Bahamas)
Docket NumberCLE/GEN/942 of 2011
Date30 September 2014

Supreme Court

Bain, J.

CLE/GEN/942 of 2011

Cat Island Air Company Limited
and
Nassau Airport Development Company
Appearances

Ms. Heather Hunt for the plaintiff.

Mr. Oscar Johnson with Ms. Samantha Fox for the defendant.

Civil Practice and Procedure - Orders — Breach of Unless Order — Relief from sanctions — Whether sanction imposed by Unless Order appropriate in all the circumstances — Whether reasons given for non-compliance satisfactory — Plaintiff made no application for relief from sanction — Plaintiff consistently ignored orders of the Court — Plaintiff's conduct in relation to Orders of Court contumelious and amounted to an abuse of process — Writ of summons and statement of claim ordered struck out.

Bain, J.
1

(1) The plaintiff filed a Specially Indorsed Writ on 20 July 2011 against the defendant claiming, inter alia, damages and breach of contract.

2

(2) In its Statement of Claim the breach alleged by the plaintiff concerned the alleged wrongful termination of the tenancy of the plaintiff, the wrongful eviction of the plaintiff without the opportunity to carry the matter to arbitration, refusal of payment of damages for an aircraft belonging to the plaintiff due to alleged damage incurred on the tarmac, and refusal to refund for wrongful billing and acceptance of payment from the plaintiff for landing fees by the defendant in the amount of $36, 916.00.

3

(3) A defence was filed by the defendant on 15 August 2011.

4

(4) An Order for Directions was made on 15 December 2011 setting the matter down for trial and giving directions on the date for filing Bundles of Documents and Pleadings, Witness Statements etc. This order was filed on 18 June 2012. The matter was set for trial on 15 and 16 October 2012.

5

(5) At the Pre-trial Conference on 25 September 2012 it was revealed that neither the plaintiff nor the defendant had complied with the Order for Directions. The trial date was vacated and the Court made a new Order for Directions on 25 September 2012 and set the new date for the trial of this matter for 30, 31 July 2013 and 1 August 2013. A pre-trial conference was set for 27 June 2013.

6

(6) On 21 June 2013 the defendant filed a Summons seeking an order –

“…directing the plaintiff to produce to the defendant, within five (5) days of the date of the order, the damaged nose gear of its aircraft which was damaged on or about 28 February 2010 on the tarmac/runway of the domestic section of the Lynden Pindling Airport, Windsor Field, New Providence, The Bahamas to enable the defendant's expert to have the said nose gear metallurgically tested…”.

7

(7) The defendant did not proceed with the hearing of this Summons.

8

(8) At the pre-trial conference on 27 June 2013 it was revealed that the plaintiff and the defendant failed to comply with the Order for Directions made 25 September 2012.

9

(9) At the hearing on 27 June 2013 counsel for the plaintiff gave the damaged nose gear assembly to counsel for the defendant in the presence of the Court. Further counsel for the defendant indicated that their expert witness would need at least two weeks to examine the nose gear assembly and file an expert report. It was ordered that the Expert Report of the defendant be filed and served by 23 July 2013. The Court made an Unless Order that the Bundles of Documents, Witness Statements and the Listing Questionnaire to be filed and served by 5 July 2013.

10

(10) On 29 July 2013 the day before the scheduled date for trial the defendant filed a Summons praying for leave to amend its defence. A draft Amended defence was attached to the Summons. On 30 July 2013, the date scheduled for trail, counsel for the plaintiff indicated that they would not be able to proceed and requested an adjournment.

11

(11) The Court heard the defendant's Summons on 30 July 2013. At this hearing counsel for the defendant pointed out that a portion of the nose gear assembly was missing. The Court ordered –

  • “(1) The defendant be, and is hereby at liberty to file an Amended defence in the form attached to the Summons filed herein on the 29 July, A.D. 2013;

  • (2) The plaintiff be, and is hereby at liberty to file a Supplemental Witness Statement of Mr. Stephen Major, the plaintiff's expert witness, on or before the 27 February, A.D. 2014;

  • (3) The plaintiff shall file a third bundle of documents, which must be approved by the defendant's attorney prior to filing, comprised of the defendant's missing documents from the Agreed Bundle of Documents;

  • (4) The plaintiff shall deliver to the defendant the second portion of its plane nose gear assembly on or before 14 February, A.D., 2014;

  • (5) The defendant be, and is hereby at liberty to file a Supplemental Expert Report relative to the second portion of the nose gear assembly, on or before the 27 February, A.D., 2014;

  • (6) The defendant be and is hereby at liberty to call two expert witnesses to give evidence at the trial;

  • (7) A Pre-trial hearing of this matter is scheduled for the 25 day of March, A.D. 2014 at 10:00 a.m. and;

  • (8) The trial of this matter is scheduled for three consecutive days commencing on the 29 day of April, A.D. 2014, beginning at 10:00 a.m. on each day.”

This Order was filed on 23 September 2013.

12

(12) At the Pretrial Conference on 25 March 2014 the Court was informed that neither the plaintiff nor the defendant had complied with the Order made 30 July 2013 and filed 23 September 2013. The plaintiff had not filed the Supplemental Witness Statement of their expert witness; the plaintiff had not filed a third Bundle of Documents and the plaintiff had not delivered the second portion of the nose gear assembly to the defendant. Counsel for the plaintiff further advised the Court that they were unable to make contact with the principal of the plaintiff Company.

13

(13) The defendant had not filed the Amended defence as ordered.

14

(14) The Court made another Unless Order on 25 March 2014 as follows –

“IT IS HEREBY ORDERED THAT UNLESS the plaintiff does, by the 29 April 2014 comply with the directions contained in the Order made on the 30 July 2013, this action shall stand dismissed.”

15

(15) A further mention hearing was set for 29 April 2014. The Order made 25 March 2014 was filed on 6 May 2014.

16

(16) At the mention hearing on 29 April 2014 the Court was advised that the plaintiff had failed to comply with the Unless Order. Counsel for the plaintiff advised that he had finally contacted Mr. Albert Rolle, the President of the plaintiff Company and Mr. Rolle was present in Court. There was no Affidavit before the Court giving any reasons for the non-compliance with the Unless Order filed 6 May 2014. The Court was also advised that counsel for the defendant had not received the missing portion of the nose gear assembly.

17

(17) Counsel for the plaintiff advised the Court that they were informed by Mr. Rolle that the missing portion of the nose gear was delivered to the chambers of the attorney for the defendant (Higgs & Johnson) and that Mr. Rolle had received a receipt for the nose gear. Mr. Rolle was ordered to file an Affidavit explaining the reasons for the delay in complying with the order and to explain the whereabouts of the missing portion of the nose gear assembly.

18

(18) On 29 April 2014 the Court extended the Unless Order made on 30 July 2013. This Order was filed on 8 May 2014 and provided –

  • “(i) The time within which the plaintiff must comply with the Order made on the 30 July 2013 shall be extended to 26 May 2014.

  • (ii) The plaintiff shall, by 26 May 2014 file any further Witness Statements and any Expert's Report upon which it intends to rely;

  • (iii) The plaintiff shall, by 26 May 2013, file an affidavit to satisfactorily explain the delay in initially failing to comply with the Order made on 30 July 2013 and to satisfactorily clarify the whereabouts of the other portions of the nose gear assembly;

  • (iv) The defendant shall, by 30 April 2014, file its Amended defence;

  • (v) The defendant shall be, granted leave to file an Affidavit in response to the aforementioned Affidavit by 2 June 2013;

  • (vi) The defendant shall be granted leave to file a Response to the plaintiff's Expert's Report by 4 June 2014 (and shall have liberty to apply if additional time is required);

  • (vii) The plaintiff shall by 4 June 2014 pay to the defendant the sum of $1, 500 as costs ‘thrown away’ resulting from the plaintiff's noncompliance with the Order filed on 25 March 2013;

  • (viii) The parties shall appear for a Status/Mention Hearing on 4 June 2014 at 10:00 a.m.”

19

(19) The Amended defence was filed on 30 April 2014.

20

(20) An Affidavit was filed by Albert Rolle on 20 May 2014. In the Affidavit Mr. Rolle stated –

  • “1. That I am the Principal of the plaintiff Company.

  • 2. That my wife, Mrs. Wendy Rolle has been seriously ill for the last 2 — 3 years.

  • 3. That she needed numerous surgeries which took place in the United States of America.

  • 4. That she stayed in the United States of America for a length of time while she recovered and healed from these various operations.

  • 5. That as the sole care giver for my wife I had to be in the United States of America for an extended period of time with her, in order to assist her with her day to day activities.

  • 6. During this time it was difficult to arrange a time to meet with my counsel to discuss the case as I was focused on my wife's health.

  • 7. That my wife is doing better and as of early May we have both moved back to The Bahamas and I have since been able to contact and instruct my attorney with respect to this matter.

  • 8. That I am now in a better position mentally and physically to commit myself to this case.

  • 9. That I apologize to the Court for the inconvenience caused.

  • 10. That I also wish to state that when the incident with the plaintiffs aircraft occurred I had taken the entire Nose Landing Gear...

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