IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Civil Appeal No. 1 of 2015

BETWEEN

AATA TEUEI
APPELLANT

AND

TEIKAUEA TOANIKAI
RESPONDENT

Before: Paterson JA 
Blanchard JA 
Handley JA
Counsel: Fuatino Noafor appellant 
Aomoro Amtenfor respondent

Date of Hearing: 18 August 2015
Date of Judgment: 19 August 2015

JUDGMENT OF THE COURT

1.	This appeal in a land matter seeks an order for certiorari to quash a decision of lay magistrates on 11 January 2007 (BU 02/07). The magistrates ordered that the present respondent be registered "with the issues of Beneuro Moote", the deceased owner of the land, over the lease No. 475.83R in place of Aata Teuei, the present appellant.

2.	The appellant was not present at the hearing and the magistrates did not have evidence that he had been served with the respondent's application, or was otherwise aware of the proceedings. His interest in the application was obvious because it was brought for the purpose of reversing an earlier order of the magistrates of 24 May 2004. This had registered the appellant as the owner of the lease "only", but not the land itself. It seems that this was done at the request of the tenant, presumably to simplify his dealings with the owners, the issue of Beneuro Moote. The record in the 2007 case indicates that some of his issue may live on Rabi.

3.	The appellant became aware of the 2007 order and proceedings on his behalf were commenced in the Land Court on 19 June 2011 (22/2011). The respondent was served with process in the Land Court proceedings and was represented by counsel.

4.	On 4 July 2012 the Chief Justice, sitting in the High Court (No. 185/2011) on the ex parte application of Ms Walker from the People's Lawyer, extended the six months limitation period for bringing certiorari proceedings in Order 61 r3. He also granted the appellant leave under Order 61 r2 to bring certiorari proceedings to quash the magistrates' order of 11 January 2007. The Chief Justice did not fix a time limit for the commencement of such proceedings. On 12 September 2013, before certiorari proceedings were commenced, the Chief Justice required the appellant to elect between his proceedings in the Land Court and in the High Court. He elected to proceed in the High Court.

5.	Proceedings for an order of certiorari were not commenced until 29 November 2013 when the appellant's notice of motion was filed, some 16 months after the Chief Justice granted leave and 2½ months after he was required to elect. The notice of motion came on for hearing before Mr Justice Zehurikize on 10 September 2014 the respondent being present in person. The Judge took the delay point himself. Ms Noa, appearing for the appellant explained the delay, saying it was not the appellant's fault, but a number of lawyers had left the People's Lawyers Office.

6.	The primary Judge said that "for reasons best known to him [the appellant] slackened in making the application". He held that bringing certiorari proceedings a year and four months after the grant of leave was an abuse of process, and that the applicant was not entitled to be heard on the application for "this discretionary remedy".

7.	The delay in filing process pursuant to the leave granted by the Chief Justice was serious, but it was explained and was not the fault of the appellant. There was no evidence that entitled the Judge to find that the appellant himself had "slackened in making the application".

8.	In our opinion, in a case such as this, delay alone could not support summary dismissal of certiorari proceedings. It was also necessary for the Judge to consider the merits of the application and the question of prejudice to the respondent.

9.	There were similar delays in the Court system. The application for leave was filed in September 2011 but was not heard by the Chief Justice until 6 July 2012. The application for certiorari was filed on 29 November 2013 but was not heard by the primary Judge until 10 September 2014. The combined delays in the Court system of some 20 months exceeds the delay for which the appellant's lawyers were responsible.

10.	The record of the Magistrates' Court in 03/07 does not reveal any justification for the court proceeding with the respondent's application in the absence of the appellant. He was not present, there was no evidence of service or notice of the proceedings, and no explanation for his absence. The magistrates were duty bound to raise this with the respondent, and not to proceed further until the appellant was served with the application.

11.	The appellant's affidavit of September 2011 states (para 8) that he was "surprised" to learn of the 03/07 decision and (para 18) that the application was made without notice to him. Almost four years later this evidence, the factual basis for his proceedings in the High Court, and earlier in the Land Court, remains unchallenged.

12.	There is no evidence that the respondent has suffered or is likely to suffer any prejudice as the result of the 16 months delay. He has known since shortly after 19 June 2011 when the appellant's application to quash was filed in the Land Court that the appellant was seeking to challenge the decision in 03/07 for denial of natural justice.

13.	The primary Judge recognised that the appellant's case was based on a "denial of the cardinal principles of natural justice" and that the object of proceedings for judicial review was "to make the machinery of government operate properly, according to law and to determine, among other things, whether the lower courts "acted without jurisdiction…. and whether there was denial of natural justice".

14.	These principles invited, indeed required, consideration to be given to the grounds for the relief sought. Prima facie there appeared to be an egregious breach of the requirement for the Magistrates' Court to exercise its jurisdiction in accordance with the principles of natural justice. The public interest required this error to be corrected lest it be repeated in other cases. The same breach of the rules of natural justice had resulted in an injury to the private interests of the appellant. The private injury to the appellant and the injury to the public interest would never be remedied if the proceedings were summarily dismissed on procedural grounds.

15.	In Tabora v Uratarawa (Civil Appeal 4 of 2000) (26/08/01) this Court extended the time for an application for certiorari despite 17 years delay, and quashed a decision of the Magistrates' Court in 1991 approving a sale which had denied procedural fairness to the appellant. The Court (Hardie Boys, Tompkins and Fisher JJA) said [11]:

"Normally a delay of 17 years would be fatal to an application of this kind. However the magnitude of the delay is only one of the relevant factors. Others include the nature of the original invalidity which is now under challenge, the date on which the applicant first heard of the decision to be challenged, the steps taken by the applicant thereafter, the extent to which the delay may be attributable to lawyers, and the extent to which innocent third parties have taken steps in reliance upon the original decision before being advised of the challenge".

16.	It is clear therefore that the primary Judge, in arriving at his decision, concentrated on the period of delay and failed to consider a number of other highly relevant matters. His exercise of discretion therefore miscarried and cannot stand: House v The King (1936) 55 CLR 499, 504-5.

17.	An applicant for certiorari who seeks to redress a private wrong, which is this case, is entitled to the remedy ex debito justiciae, or in English as a matter of justice: Reg v Surrey Justices (1870) LR 5 QB 466, 473. As Sir Wilfrid Greene MR said in R v Stafford Justices [1940] 2 KB 33, 43:

"… the order for the issue of the writ of certiorari is …. strictly in all cases a matter of discretion. It is perfectly true to say that if no special circumstances exist, and if all that appears is a clear excess of jurisdiction, then a person aggrieved is entitled ex debito justitiae to his order. That merely means …. that the court …. will exercise its discretion by granting the relief …. the Court, although nominally it has a discretion, if it is to act according to the ordinary principles upon which judicial discretion is exercised, must exercise the discretion in a particular way".

18.	Sir Wilfrid Greene then referred to Reg v Surrey Justices (at 44) and the statement in that case of the right of the party aggrieved ex debito justitiae and continued:

"….. unless there is something in the circumstances of the case which make it right to refuse the relief sought, the Court will grant it, and that is the way in which the Court will and must on ordinary principles exercise its discretion".

19.	The primary Judge referred to "the alleged denial of the cardinal principles of natural justice". The principle that is relevant in this case was summarised by Lord Greene MR in Craig v Kanssen [1943] KB 256. Any decision arrived at in those circumstances is "no decision" at all: Spackman v Plumstead Board of Works (1885) 10 App Cas 229, 240 per Earl of Selborne LC. Lord Greene MR said (above at 262-3):

"….. a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside ….. it is beyond question that failure to serve process where service of process is required goes to the root of our conceptions of the proper procedure in litigation ….. the idea that an order can validly be made against a man who has had no notification of any intention to apply for it has never been adopted in this country. It cannot be maintained that an order which has been made in those circumstances is to be treated as a mere irregularity and not as something which is affected by a fundamental vice".

20.	The Court does not exercise an unfettered discretion in cases of this kind, the applicant was a person aggrieved, and as such entitled as a matter of justice to an order quashing a decision affected by a fundamental vice. 

21.	There is a further reason why the delay could not be fatal in this case. The Magistrates' Court had no jurisdiction to make the Order 03/07 because the appellant had not been served or notified. This lack of jurisdiction appears on the face of the record 03/07. Where the lack of jurisdiction appears on the face of the record relief by prerogative writ cannot be refused on the ground of delay. The English cases are collected in Yirrell v Yirrell (1939) 62 CLR 287 where prohibition was granted despite 20 years' delay.

22.	The appeal must therefore be allowed.

23.	The following orders are made:

1.	Appeal allowed;

2.	The order of the High Court of 29 October 2014 is set aside;

3.	Order BU 03/07 of the Magistrates' Court is quashed;

4.	The Magistrates' Court is directed to hear and determine the respondent's application to that Court according to law;

5.	The respondent is to pay the appellant's costs in this Court assessed at $500 plus disbursements to be settled by the Registrar if not agreed;

6.	The respondent is to pay the appellant's costs in the High Court to be taxed if not agreed.

____________________________
Paterson JA

____________________________
Blanchard JA

________________________
Handley JA