In the High Court of Kiribati
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 63 of 2006

Between:

Tabare Tanree
Plaintiff

And:

The Attorney General in respect of
The Ministry of Health and Medical Services
Defendant

For the Plaintiff: Mr Karotu Tiba
For the Defendant: Mr Birimaka Tekanene

Date of Hearing: 20 March 2007

JUDGMENT

Claim against the Ministry for payment of overtime worked when the plaintiff was employed as night watchman at the Betio hospital between 2000 and 2003. He resigned some time in 2003.

At the beginning of the hearing I asked counsel whether the facts alleged in the pleadings were admitted. It seemed they were. I was told it was only a matter of interpretation. 

The first point to be considered is whether the National Conditions of Service applied to the plaintiff’s employment. Paragraph 1 of the Amended Defence pleads "that the plaintiff’s appointment was subject to the terms of the National Conditions of Service". In paragraphs 2 and 2(a) the defendant relies on clauses E.12(b) and A.6(b) of the NCS. 

The foundation in law for the NCS is not clear. They seem to have no statutory backing: counsel could not point to any. The only reference I have found is in section 113 of the Employment Ordinance:-

Application to Crown

113.	This Ordinance shall bind the State save and except that nothing in this Ordinance shall apply to or in relation to police officers, and Part VI shall not apply to workers whose employment is regulated by the National Conditions of Service.

It must be that unless the NCS are imported into a contract of employment they do not bind either employer or employee.

So did the NCS, as the defendant alleges, bind the plaintiff? How did the defendant justify the allegation in paragraph 1 of the amended Defence?

Mr Tekanene produced letters which, he said, had gone to the plaintiff importing the NCS into his contract of employment. Mr Tiba objected to my receiving them: they had not been discovered. 

On 19th January I made an order for mutual discovery on or before 1st February. It is beyond argument that the letters were not discovered and should have been. Order 33 of the High Court (Civil Procedure) Rules: (rules 10 and 21):-

10.	Any party may, without filing an affidavit, apply to the Court for an order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein.

21.	If any party fails to comply with any order ----- for discovery or production or inspection of documents, he shall be liable to attachment. He shall also, if a plaintiff, be liable to have his action dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating may apply to the Court for an order to that effect, and an order may be made accordingly.

Mr Tiba applied for an order to have the defence struck out. I refused the order. We have been observing the spirit of the Rules but not following the somewhat tedious provisions to the letter. It would have been unfair suddenly to have begun strictly enforcing them. The Court has allowed the profession to become slack in matters of procedure. There must be a closer observance of the provisions of the Rules in the future. I was told that in this case, as in others, lawyers have even been leaving it to their clients to make discovery directly to the lawyer on the other side and lawyers have been accepting this as proper discovery. That is quite wrong. The practice must cease. Discovery must be made and given between lawyers, not between parties. The reasons are obvious. Lay persons may not realize what documents should and what documents should not be discovered. 

All those practising before the Court should make themselves familiar with the Rules of Procedure. They should note especially Order 33 rr 21, 22 and 23! 

After hearing vigorous argument from Mr Tekanene I refused to allow him to tender the letters but I decided, as a matter of fairness, that Mr Tiba should call his client to give evidence on this point. The plaintiff was sworn, was shewn the letters, denied he had ever seen them before. From his demeanour and answers I find the plaintiff to be an honest witness whose denials of receipt of the letters I may accept. In what may have been an excess of fairness I allowed Mr Tekanene, even though he had not foreshadowed any in cross examination, an adjournment for two hours to find evidence, any evidence, which might prove the plaintiff’s receipt of the letters. Mr Tekanene produced none.

I must conclude on the balance of probabilities that the NCS were never imported into the plaintiff’s contract of service with the Ministry. The defence on liability therefore fails.

There will be judgment for the plaintiff on liability with damages to be assessed.

Dated the 22nd day of March 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice