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

High Court Civil Case 69 of 2007

Between:

Tekina Nabuang
Plaintiff

And:

Attorney General IRO Ministry of LINNIX
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Mr David Lambourne, Solicitor General

Date of Hearing: 24 May 2007

JUDGMENT

Action to set aside a consent judgment.

The first five paragraphs of the Statement of Claim set out the facts:-

1. The Plaintiff is a patient of Tungaru Central Hospital and was, at all material times, a resident of Christmas Island and the victim of a road accident in which she was run over by a tipper truck belonging to the Defendant and driven by the Defendant’s employee, Maea Kautunteabike.

2. The Defendant is sued pursuant to the Proceedings by and Against the Republic Ordinance in respect of the Ministry of the Line and Phoenix Development ("LINNIX").

3. Following the said accident the Plaintiff filed proceedings against the driver and Defendant which was numbered as High Court Civil Case 61 of 2005.

4. On or about the 24th February 2006 the proceedings against the Defendant were purportedly concluded with a consent judgment being entered against the Defendant for $2,500.00.

5. The consent judgment was made without the consent and the knowledge of the Plaintiff and therefore it was made without authority.

Particulars

(a) The Plaintiff was not able to come to court in time for the hearing and therefore was not able to confirm her instructions to her Counsel before the hearing.

(b) Counsel purported to make a settlement with the Defendant not knowing that his client was in fact coming but was having trouble trying to catch the bus.

(c) Counsel made the agreement in the absence of the Plaintiff and without firm instructions therefore made the agreement without the authority of the Plaintiff.

The defendant has taken a preliminary point that this action seeks to impeach the compromise in High Court Civil Case 61 of 2005, and no or inadequate grounds exist for such impeachment.

The Solicitor General arguing the point relied on passages from "The Law and Practice of Compromise" (3rd edition) by David Foskett QC especially this passage in paragraph 12-16:-

The power is discretionary, will be used with "extreme caution" and will be exercised only when a case "calls clearly for interference" having regard to any "grave injustice" which might be occasioned by allowing the compromise to stand. The leading authorities on the matter indicate that the power to interfere will not be exercised (or does not exist) after any consent order or judgment has been perfected. The application to set aside any consent order or judgment must be made before or contemporaneously with perfection.

The leading authorities cited by the learned author are Neale v Gordon Lennox (1902) AC 465 and Shepherd v Robinson (1919) 1 KB 474.

Mr Lambourne submitted that once a consent order has been perfected that is that. The Court is functus officio: it can do no more: e a toki ikanne. He further argued, correctly, that the order for judgment by consent having been drawn up and signed, that amounted to the perfection of the order. He contended that the action should be dismissed at this early stage.

There is a passage in the speech of the Earl of Halsbury LC in Neale v Gordon Lennox which has often been quoted:-

….and to suggest to me that a Court of justice is so far bound by the unauthorized act of learned counsel that it is deprived of its general authority over justice between the parties is, to my mind, the most extraordinary proposition that I ever heard ….. I will only say for myself that I should absolutely repudiate any such principle…… to say that any learned counsel can so far contradict what his client has said, and act without the authority of his client as to bind the Court itself, is a proposition which I certainly will never assent to.

That is a forceful exposition of the general proposition. Should a perfected order be an exception to the general proposition? Mr Lambourne answered, "Yes": it is an exception: justice or injustice is irrelevant. Mr Berina said, "No".

An answer to the question was canvassed and given by the New Zealand Court of Appeal in Waitamata City Council v Mackenzie ((1988) 2 NZLR 242). By happy chance all three members of the Court have been at some time members of the Kiribati Court of Appeal, Lord Cooke of Thorndon, Sir Maurice Casey and Sir Gordon Bisson. The leading judgment with which the other two members of the Court agreed, was given by Casey J. Having canvassed (at pages 248-249) the arguments for and against allowing a sealed order to be set aside the learned judge concluded:-

Fortified by the views of the Lord Chancellor to which I have referred in Neale v Gordon Lennox, I am disposed to accept that the Court in an action taken for that purpose does have an inherent jurisdiction to set aside a sealed consent order obtained without authority or as a result of a mistake if the interests of justice require it. While there are obvious reasons for upholding the indefeasibility of such orders, it seems unnecessary to go to the extreme limit of regarding them as absolutely inviolate (apart from the "slip rule"); to do so could transform procedures designed to further the ends of justice into instruments of injustice or oppression. So long as the rights of others have not been materially prejudiced, I can see no virtue in the formal operation of sealing sufficient in itself to constitute a bar to any prospect of restoring the parties to the position they should have been in all along.

Whatever the grounds for seeking to set aside the order, the ultimate question is whether such a step is called for in the interests of justice, having regard to all the circumstances of the case (at 249).

I am happy to accept the answer to the question given by the New Zealand Court of Appeal. Even though the consent order was perfected, the Court has a discretion to set it aside.

The discretion should be exercised sparingly as the learned author of the Law and Practice of Compromise put it:-

The power is discretionary, will be used with "extreme caution" and will be exercised only when a case "calls clearly for interference" having regard to any "grave injustice" which might be occasioned by allowing the compromise to stand.

I shall invite further submissions from counsel and evidence if desired before I exercise my discretion whether or not to strike out the Statement of Claim and to dismiss the action.

Dated the 28th day of May 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice