IN THE HIGH COURT OF KIRIBATI 2013

CIVIL CASE NO. 146 OF 2011

BETWEEN:

[KIAMARO RITERI
PLAINTIFF

AND

[BETIO SHIPYARD
DEFENDANT

Before: Hon Chief Justice Sir John Muria

31 July 2013

Ms Kiata Kabure for Plaintiff
Ms Maere Kirata for Defendant

JUDGMENT

Muria CJ:	On 19 October 2011, the plaintiff issued a Writ against the defendant in High Court Civil Case No. 146 of 2011. The Writ was served on the defendant on 1 November 2011 (although the Indorsement states that it was served on "1st day of November 2010"). The defendant did not file an Appearance or Defence to the Writ. On 28 November 2011 the judgment in default of appearance and defence was entered for the plaintiff.

On 15 May 2012 a Writ of Fieri Facias was issued by the plaintiff against the defendant. The case heading on the Writ of Fifa was "High Court Civil Case No. 146 of 2012" although in the Writ, it stated that it was to enforce the judgment entered on "28th day of November 2011" for the sum of $2,540.00. The praecipe of fifa was also in respect of "HC Civ. C. No. 146/2012" and for "a judgment dated 28th day of November 2012 for the outstanding sum of $2,540.00" together with interests and legal costs".

The appearance entered by Counsel for the defendant on 8 June 2012 was done in respect of "High Court Civil Case 146 of 2012" and the draft defence was likewise entered in respect of "High Court Civil Case 146 of 2012". The parties were the same parties. Subsequently the application filed by the defendant and supporting affidavits were all in respect of "High Court Civil Case 146 of 2012".

CARELESSNESS APPROACH TO LITIGATION

This case clearly shows a careless approach to litigation by legal practitioners. The claim and the judgment in default were between the same parties in "High Court Civil Case No. 146 of 2011" while the enforcement proceedings, the late Memorandum of Appearance, Draft Defence and Subsequent Notice of Motion to set aside and supporting affidavit were between the same parties in "High Court civil Case 146 of 2012". Neither the parties or their Counsel nor those managing the case files in the Court Registry raised any query on these strings of disorganized documentations.

In a properly managed litigation, "High Court Civil Case No. 146 of 2011" can be quite a different case to "High Court Civil Case No. 146 of 2012". The fact that the parties were the same may not necessarily mean that the cases are the same. Same parties may have different cases between them.

WHETHER DEFAULT JUDGMENT SHOULD BE SET ASIDE

There can be no argument that the defendant was served with the Writ in this case on 1 November 2011 although the endorsement is stated as "1 November 2010". No appearance or defence was made by the defendant and so on 28 November 2011 judgment in default was entered for the plaintiff. It was not until after May 2012 when the plaintiff took out enforcement proceedings that the defendant began taking actions, including applying to set aside default judgment, filing Appearance and Draft Defence. These actions on the part of the defendant were clearly too late in the day to take.

The explanation for the delay as put by the General Manager of the defendant was that he was never served with the plaintiff's claim. That explanation cannot stand. The Writ was served on the defendant on 1 November 2011.

Next the General Manager stated that, if the plaintiff had a case against the defendant, it never came to his attention. I do not think, in the slightest, that the Court can accept such an explanation coming from the CEO of a Government corporate entity following the service of the Writ on the defendant on 1 November 2011.

There is also reliance on the absence of the plaintiff's lawyer overseas contributing to the delay in the defendant's action in this case. Unfortunately, the plaintiff's Counsel's absence cannot benefit the defendant in this case. The defendant must succeed on the strength of his own case, not on the weakness of his opponent.

There is simply no justifiable explanation for the delay in this case. The defendant's explanation for its inaction in this case is inexcusable and it is rejected.

The next consideration, as laid down in Waysang Kum Kee –v- Abamakoro Trading Ltd (5 April 2001) KICA and adopted in Teretia Korieta –v- BPA (29 October 2012) KIHC 2012 is to ascertain if the defendant has a substantial defence to the plaintiff's claim. In this case, the defendant filed a Draft Defence.

Apart from the other matters raised in the defendant's Draft Defence, the defendant relied on its right to terminate the plaintiff under his contract of employment as a casual labour. The defendant also relied on its defence that there was no wrongful termination in this case and so the plaintiff was not entitled to claim damages for termination of his employment.

Other issues are also raised by the defendant in its draft defence which if established, would seriously affect the plaintiff's claim. The Court feels therefore that in this case, there is basis for the Court to exercise its discretion and allow the defendant the chance to defend the case. This can be done by setting aside the default judgment entered against the defendant on 28 November 2011. The defendant's Draft Defence on the file is to be accepted as Defendant's Defence to the action, subject to the filing fee for the Defence being paid, if not yet done so.

The application is granted. 

However, the circumstances clearly justify that the costs of this application should be paid by the defendant.

ORDER:	(1) Application granted;	
		
	(2) Default judgment dated 28 November 2011 is set aside;	
		
	(3)Matter set down for Direction hearing;	
		
	(4)Costs to be paid by defendant/applicant.	

Dated the 6th day of August 2013

SIR JOHN MURIA
Chief Justice