IN THE HIGH COURT OF KIRIBATI 2015

CIVIL CASE NO. 215 OF 2010

BETWEEN

TEMAKAU TAAIRAKE
PLAINTIFF

AND

HON ATTORNEY GENERAL IRO MINISTRY OF LINE AND PHOENIX GROUP
DEFENDANT

Before: The Hon Chief Justice Sir John Muria

6 August 2015

Mr Banuera Berina for Plaintiff
Ms Bitarana Yeeting for Defendant

JUDGMENT

Muria, CJ: This is an application by the defendant for a further amendment to their Amended Statement of Defence to enable them to counter-claim against the plaintiff. The trial of the plaintiff's claim is now half-way. The plaintiff, as well as two of his witnesses, have already concluded their evidence on 13 May 2015. The trial was adjourned to enable the defendant to obtain further information and to present their defence case. The defendant now asks for permission to amend their Statement of Defence in order to include a counter-claim against the plaintiff. The defendant's application is made pursuant to O.30 r.6 of the High Court (Civil Procedure) Rules 1964.

O.30 r.6

The defendant relies on O.30 r.6 which states as follows:

"O.30 r.6: In all cases not provided for by the preceding Rules of this Order, application for leave to amend may be made by either party to the Court at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise as may be just".

There is no argument that O.30 r.6 grants the High Court the discretionary power to allow amendment to either party of their statements of case as pleaded. The question is really whether the Court should grant or refuse the request for a further amendment, especially at this late stage of trial when the plaintiff has already completed his evidence. In such a situation, the Court will have to consider various factors, including the history of the case and the explanation for the late application for amendment, the prejudice to either party if the request is refused or allowed, and whether the proposed amendment is clearly and property set out, before coming to its decision whether to grant or refuse the application to amend the Statement of Defence.

I think it is helpful to consider the chronology of events in this case:

29/12/10 Writ was filed
17/2/11 Writ served on defendant
23/2/11 Memorandum of Appearance by the defendant
2/5/11 Defence filed by defendant
4/8/11 Summons for Directors filed by plaintiff
22/9/11 Order on Directions made
21/11/12 Application to amend defence filed by defendant
7/2/13 Leave to amend defence granted to defendant. Amended Defence filed
21/2/13 Reply to amended defence filed by plaintiff
26/7/13 Issues agreed and settled by the parties
3/9/13 First hearing. The plaintiff passed away – proceedings in Magistrates' Court to appoint Administrator of the deceased Estate to continue with plaintiff's claim – case adjourned to 18/11/13
13/11/13 Application for preliminary issues to be determined filed by defendant
18/11/13 Case adjourned since Counsel for plaintiff was in Vanuatu attending Conference
6/6/14 Defendant's application for determination of preliminary issues of law heard. Neither the plaintiff nor Counsel appeared. Application heard since the plaintiff were served
17/10/14 Ruling on preliminary issues given
13/5/15 Trial commenced – plaintiff pursued his claims for allowances and unpaid salary increments for years 2001-2008 in accordance with Ruling of the Court
 Evidence for the plaintiff was called. Plaintiff's two witnesses called and gave evidence
 Defendant still asked for adjournment to enable them to get in touch with the Accountant who was in Kiritimati Island
 Adjourned case to 26/5/15
26/5/15 Because the defendant's affidavit was filed and not served on the plaintiff, case adjourned to 10/6/15 to enable defendant to serve defendant before the hearing. Case adjourned to 10/6/15
10/6/15 Trial did not continue. New date fixed 6/8/15 for continuation of trial
4/8/15 Notice of Motion filed by defendant seeking leave to further amend Statement of Defence 
6/8/15 Trial did not continue, instead the Court had to deal with the defendant's request for the further amendment to the defendant's defence.

The chronology of events set out above demonstrates the history of the case between the parties in the present case. It shows that the defendant filed their defence in March 2011, amended in February 2013 and now seek for a further amendment of their amended defence half-way into the trial of the plaintiff's claim. This is a last minute request for a further amendment to the defence. As such the defendant bear a heavy burden to show the strength of their new case for an amendment to be granted. The defendant must also demonstrate why the justice of the case makes it necessary for them to seek the amendment at this late stage. This is the view taken in the English cases of Worldwide Corporation –v- GPT [1998] EWCA Civ. 1894 and Swain-Mason & Others –v- Mills & Reeve (a firm) [2011] EWCA Civ. 14.

In another English case of Versloot Dredgin BV & Another –v- HIDI Gerling Industrie Versicherung AG & Others [2013] EWHC 1667 (Comm), the delay between the discovery of the evidence giving rise to the intending amendment and service of the proposed re-amendment was 14 days. The Court refused the re-amendment because there was no explanation for the delay and there would have been a significant prejudice to the plaintiff had the amendment been allowed after the evidence had been concluded at the trial.

In Worldwide Corporation, the Court refused the amendments to the claim following one week into the trial of the case since the last minute amendment would result in a delay in the trial and would cause inconvenience to the other parties in the trial.

In the present case, the only explanation for seeking a last minute adjournment is that the relevant documents were in Kiritimati Island where the plaintiff was employed. Unfortunately, this is not a case where the defendant only knew of the whereabout of those relevant documents since the last adjournment of the trial on 13 May 2015. The plaintiff issued his claim against the defendant in December 2010 and served on the defendant in February 2011. The defendant knew the contents and nature of the plaintiff's case since 2011. The defendant knew all along that the relevant documents were in Kiritimati Island. The affidavit evidence filed by both parties clearly shows that the case arose in Kiritimati Island where the plaintiff was employed and as such the relevant documents were in Kiritimati Island. One such affidavit was that sworn to by Dephew Kanono on 2 September 2013. In today's communication age, Kiritimati Island is only an email away from Bairiki in South Tarawa. As such I find it difficult to accept the suggestion that the distance between Kiritimati Island and Bairiki in South Tarawa was too distant for the defendant to obtain the necessary documents and information relevant to the defendant's case. There is in my view a lack of genuine interest to pursue the defendant's answer to the plaintiff's claim or simply a laxed approach to resolving the problems raised by the plaintiff's claim.

The long and short of the matter is that the explanation given by the defendant for seeking a last minute further amendment to their defence is unacceptable. The prejudice is more to the plaintiff than the defendant if the amendment is allowed.

Further, the text of the proposed amendment, in paragraph 15, is not satisfactory. It lacks clarity and particularity. As the case Worldwide Corporation shows that a party seeking amendment is obliged to put in a full and proper pleading to enable the opposing party to know the case it has to meet.

For all the above reasons, the application for a further amendment to the defendant's statement of defence in this case is refused.

Dated the 7th day of August 2015

SIR JOHN MURIA
Chief Justice