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

High Court Civil Case 30 of 2000

BETWEEN:

DAISY NAMAKIN TRADING AS DAISY STORE
Plaintiff

AND:

ANNA TEKAUTU & KAUTABEA ITINIMONE
Defendants

FOR THE PLAINTIFF: Banuera Berina
FOR THE DEFENDANTS: Taoing Taoaba, Assistant People's Lawyer

DATES OF HEARING: 23 July & 1 August 2001
DATE OF JUDGMENT: 3 June 2002

JUDGMENT

[1] I find for the Defendants. The Plaintiff is to pay the Defendants' costs, to be 	assessed if not agreed. My reasons are as follows:-

[2] This is an action for debt. The Plaintiff's claim is described in only one sentence:-

The Plaintiff's claim is for the sum of $7967.15 being the balance of the purchase price of goods sold and delivered to the Defendants and acknowledged as owing by the Defendants by a signed acknowledgment of debt dated 26 May 2000.

[3] The defence to this claim was mounted on two fronts: firstly, that the claim was res judicata by virtue of an earlier action in the Magistrates' Court in respect of the same cause of action; and secondly, a denial of the acknowledgment of debt.

[4] The evidence led by both sides during the trial focussed almost entirely on the acknowledgment of debt. The Plaintiff and her employee Toto testified that they went to the Defendants' house in Buota in May 2000. The Defendant Kautabea wrote out the document acknowledging the debt and then both he and his wife Anna signed it. Kautabea admitted writing and signing the document, but said he could not remember whether Anna was there. Anna denied any knowledge of the document. The Defence was amended by leave during the Plaintiff's evidence to reflect this position.

[5] I must confess that I cannot see the relevance of this issue, as an acknowledgment of debt does not, of itself, give rise to a cause of action. It simply has the effect of reviving an action that might otherwise be statute-barred (s.23(4), Limitation Act 1939 (UK)). The Defendants admitted the debt in question (paragraph 2 of the Defence), and as there was nothing in the pleadings to suggest that it was in some way statute-barred the existence of an acknowledgment of that debt is irrelevant. If I am wrong, and the acknowledgment is somehow relevant, then I find on the balance of probabilities that the document came into existence in the manner described by the Plaintiff in her evidence. Neither of the Defendants were credible witnesses. Where their testimony is at odds with that of the Plaintiff, I prefer the Plaintiff's version of events.

[6] The principle issues in this case are those of claim splitting and the doctrine of res judicata.
[7] The Plaintiff operates a retail store. The Defendants obtained goods from her on credit. In early 1997 the Plaintiff took action against the two Defendants in the Betio Magistrates' Court in Civil Case 21/97, seeking repayment of a debt in the sum of $2997.00. It was common cause that, at that point in time, the Defendants' actual indebtedness amounted to over $7000.00. Save for about $200.00 (about which I will say more later), all of the debt which the Plaintiff seeks to recover in the action before me had been incurred by the time of the 1997 proceedings. It should be noted here that the Magistrates' Court only has jurisdiction to entertain civil claims where the amount sought is less than $3000.00 (Schedule 1, Magistrates' Courts Ordinance (Cap. 52)). Although the record of the proceedings before the Magistrates' Court case is disconcertingly brief, the parties agree that the Court gave judgment for the present Plaintiff in the sum sought, together with Court costs of $3.00. judgment was to be satisfied by attaching the annual land rent to be paid to the Defendants by the government.

[8] The first question that arises for determination is whether the Plaintiff has a single cause of action or several. Counsel for the Plaintiff argues that, as the credit transactions related to the provision of goods on several occasions then each transaction is capable of giving rise to a separate cause of action. The question however is one of fact. The Plaintiff has at all times regarded these discrete dealings as giving rise to a single cause of action. Throughout the hearing there was no attempt made to distinguish between transactions, save for a one-off transaction between the parties where the Defendants received goods on credit from the Plaintiff to the value of $200. This took place sometime after the 1997 lower court action. This deal aside, both sides treated the Defendants' debt as if it had arisen on a single occasion. The proceedings in both the Magistrates' Court and in this Court were brought as if the debt stemmed from a single transaction. Even the letter acknowledging the debt (which includes the $200 transaction) refers only to a single debt.

[9] This was a situation similar to that under consideration in the case of Re Aykroyd (1847) 1 Exch 479, where the Court said:

...in the case of a continuing bill with a tradesman, the items are generally connected, the first contract being usually made with the understanding that if not paid for until after others have been made, it is to form part of the same debt, so that several items are to be united in one bill. (@490)

I find that there is sufficient evidence to draw the inference that the intention of the parties in this case was that there should only be one cause of action, each subsequent transaction being absorbed into the total liability.

[10] Having said that, is there anything to prevent the Plaintiff from splitting her claim? Most Courts of limited jurisdiction have a statutory prohibition on the splitting 'of claims. For example, s.69 of the County Courts Act (UK) 1959, reads as follows: "It shall not be lawful for any plaintiff to divide any cause of action for the purpose of bringing two or more actions in one or more of the county courts." But s.69 is not the law in Kiribati, at least not since 1991, when s.43 of the Magistrates' Courts Ordinance (Cap. 52) was amended to remove a reference to the 'law and practice' of the English county courts as being applicable. Instead the 'practice and procedure' of the High Court is to be applied.

[11] Where there is no specific statutory prohibition it would appear that the common law does not of itself prevent claim splitting. This was the view arrived at by Kaye J in the Victorian Supreme Court after thorough consideration of the authorities in the case of Pioneer Concrete Pty Ltd v. Crollo & Co. Pty Ltd [1973] VR 473 @ 481. Kaye J went on to say however that:

...should a plaintiff having divided his cause of action choose to litigate his actions separately, the defendant might then plead issue estoppel or res judicata or both to the subsequent actions on the conclusion of the first action. (ibid.)

[12] But has the Plaintiff actually split her claim? Her counsel concedes that the $7967.15 sought in this case includes the $2997.00 awarded to her by the Magistrates' Court in 1997. Mr Berina agrees that his client cannot 'double dip' but he submits however that I can simply excise the lesser amount from the larger and consider whether or not to award the remainder to the Plaintiff. Even if I could do this I have reached the conclusion that such an approach is in no way desirable.

[13] The Court must guard against attempts to abuse its processes. It is important that there be an end to litigation and that parties are protected from multiple claims in respect of the same dispute. For this reason the doctrine of res judicata has developed.

[14] Halsbury says:

In order that a defence of res judicata may succeed, it is necessary to show not only that the cause of action was the same but also that the plaintiff has had an opportunity of recovering, and but for his own fault might have recovered in the first action that which he seeks to recover in the second. (§ 1528, vol. 16 of the fourth edition)

In this case it was open to the Plaintiff to bring her claim for the full amount in the High Court and she would have had little trouble succeeding. For whatever reason (perhaps seeking a quick judgment) she chose to bring proceedings in the Magistrates' Court, with its limited jurisdiction. The most she could have recovered was $2999.99. In fact she recovered $2997.00.

[15] Of relevance is the case of Hills v. Co-operative Wholesale Society Ltd [1940] 2 KB 435, where the plaintiff was prevented from bringing an action in the High Court after successfully suing the defendants in the County Court on what was found to be the same cause of action. The plaintiff in Hills took a strategic decision to sue in a court of limited jurisdiction to prevent the defendants from availing themselves of a certain defence. Speaking for the Court of Appeal, the Master of the Rolls said (@440):

Here is a plaintiff having one cause of action, enforceable in two different ways, in two different courts, subject to different conditions. How can such a plaintiff, when his cause of action in the one set of proceedings has been completely satisfied, carry on the other set of proceedings, and endeavour to recover damages in respect of a cause of action which already has been satisfied? ... In my judgment, by taking the course that he did, his cause of action was satisfied once and for all, and can no longer be maintained in the High Court action.

[16] Having already found that the Plaintiff has only a single cause of action, application of the principles of res judicata leads me to the conclusion that the Plaintiff must fail in this Court. Even if I were inclined to accept Mr Berina's proposition that the amount awarded in the earlier case could be somehow hived off, leaving me free to award the Plaintiff a lesser amount, I am of the view that to do so would offend against the need for finality in litigation.

[17] The Plaintiff made her choice, and in doing so she forwent the opportunity to claim the full amount owed. I find for the Defendants.

DAVID LAMBOURNE
Commissioner

3 June 2002