IN THE HIGH COURT OF KIRIBATI 

MISCELLANEOUS APPLICATION NO. 16 OF 2019
(ARISING FROM HIGH COURT CIVIL APPEAL NO.11 OF 2018)

		[RUBE EROMANGA					APPLICANT
		[
BETWEEN	[AND
		[
		[KIRIBATI OIL COMPANY LIMITED			RESPONDENT

Before:	The Hon Chief Justice Sir John Muria

14 March 2019

Ms Elsie Karakaua for Applicant
Ms Ruria Iteraera for Respondent

JUDGMENT

Muria, CJ:	The Attorney General, on behalf of the respondent, Kiribati Oil Company Ltd (KOIL) has brought this application for Special Case under O.37 r2 of the High Court (Civil Procedure) Rules.  The application itself, brought under O.55 r1, by way of Notice of Motion, also seeks three orders namely:

1.	That special leave be granted to the Applicant/Respondent pursuant to 
O.55 r.5.
2.	An order dismissing the action in High Court Civil Appeal No. 11 of 2018.
3.	Such other order or orders which this Honourable Court may deem just.

2.	There are three grounds raised in support of the respondent’s application.  First, it is argued that the action has not complied with section 14 of the Industrial Relations Code 1998.  Secondly, it is said that the action is misconceived since the appellant relies on section 131 of the Employment Industrial Relations Code 2015 to appeal instead of the Industrial Relations Code 1998 and Employment Ordinance.  Thirdly, that the action was premature as the question of law or special case should have been decided first before the action was heard.

3.	To start with, “special case” or “case stated” are one and the same thing.  They are interchangeable.  See Beldon –v- Honiara Liquor Licensing Board [2010] SBHC 18; HCSI – CC 16 of 2010 (13 May 2010) where it is also stated, adopting Black’s Law Dictionary, that 
“a case stated is  formal written statement of facts in a case jointly submitted so that a decision may be rendered without trial”.

4.	Halsbury’s Laws 2nd Edition, volume 21 at page 727 also helpfully sets out what a special case is.  It provides:

“The special case should contain all the points which it is desired to raise, since the High Court will not hear argument on any point not raised (before the justices), unless indeed, it arises upon the face of the facts as stated, or upon a question of law thereon which no evidence would alter, nor will it admit doubts as to the accuracy of the case, unless there is a patent defect in it.

The usual practice is for the case to be drafted by the party applying for it, and after it has been considered by the respondent, for its terms to be finally settled by the justices by whom the case was heard”.

5.	The format described in Halsbury’s Laws and Black’s Dictionary is captured in O.37 (Special Case) of the High Court (Civil Procedure) Rules 1964 to fit the circumstances of Kiribati.  I regret to say that nothing of the format described in Halsbury’s Laws or Black’s Dictionary or O.37 has been followed in the present case.  The respondent’s application, by way of Notice of Motion seeks, not only a determination of a special case, but it also seeks to dismiss the appellant’s appeal.

6.	This application once again demonstrates the need for legal practitioners to be familiar with the rules of court.  It is one thing knowing the law, but it is another thing knowing the practice of the law.  It is therefore important to read the rules of court and know the procedures on how to apply the rules.

7.	In the present case, the substantive matter before the High Court is the appeal by the appellant against the Arbitrator’s decision.  The arbitration proceedings have already been heard and determined by the Arbitrator.  Any “special case” would, therefore, be in relation to the appeal now pending before the Court and would have to follow the format for such special case as set out in O.37.

8.	I have serious reservation, in this case, as to the form of the special case brought by the respondent.  None of these procedures have been followed.  As a result, it is not clear what the respondent are seeking to achieve by the application now before the Court.  On the one hand, the Notice of Motion seeks to dismiss the appellant’s appeal to this Court.  On the other hand, in the same application the respondent seeks the Court to determine whether the Employment Industrial Relations Code 2015 is applicable to appellant’s arbitration case or not.  Lack of clarity in the formulation of a special case or case stated can lead to confusion as to the actual issue or issues at stake.

9.	There is a further aspect to this case.  The issue as to which law applied had been raised and determined already by the arbitrator who decided that the applicable law is the Industrial Relations Code 1998.  The appellant opined otherwise.  In the appellant’s appeal, the issue of whether the Employment Industrial Relations Code 2015 is the applicable law has already been raised as a ground of appeal.  It would not, therefore, be proper for the issue to be dealt with for the purpose of dismissing the appeal as suggested by Counsel for the respondent in this special case.  It is one of the substantive grounds of appeal, and it is suitably dealt with as such on appeal.

10.	The argument, therefore, that the question of law should have been dealt with first before the arbitration case proceeded has long gone past the post.  The point had been raised and the arbitrator had dealt with it.

11.	It may, however, be possible that the issue of the applicability of the Employment Industrial Relations Code 2015 can be brought as an appeal under case stated by the appellant.  That depends on the provisions of the applicable law governing the arbitration.  In this case Ms Karakaua of Counsel for the appellant referred to section 131 of the Employment Industrial Relations Code 2015 which confers a right of appeal to the High Court by an aggrieved party to an arbitration award.

12.	I set out section 131 to ascertain if a right of appeal by way of case stated is provided for:

“(1)	A party to an employment dispute who is aggrieved by an arbitration award may, subject to subsections (3) and (4), appeal as of right or by leave to the High Court.

(2)	An appeal to the High Court must be made in the prescribed manner within 28 days of the date of the arbitration award.

(3)	A notice of appeal must specify:
(a)	the grounds of appeal;
(b)	the decision or part of the decision which is to be appealed; and
(c)	the precise form of the order which the appellant proposes 	to seek from the High Court.

(4)	An appeal by an aggrieved party from an arbitration award lies 	as of right to the High Court:
(a)	on any error of law arising; or
(b)	 on grounds of jurisdictional error.

(5)	An appeal by an aggrieved party from an arbitration award on any other grounds shall only lie to the High Court with leave, where the High Court is satisfied that it is in the public interest to grant such leave.

(6)	For the purposes of hearing and determining any appeal, the High Court has all the power, authority and jurisdiction of the arbitrator and such other authority vested in a superior Court.

(7)	The High Court hearing and determining an appeal may:
(a)	determine the appeal by confirming, modifying, or 	reversing the decision or a part of that arbitration award, or 	by setting the award aside and substituting its own 	decision.
(b)	refer the matter with or without any direction to the 	arbitrator to reconsider, either generally or in respect of 	specified matters, the whole or a part of the matter to 	which the appeal relates.

(8)	Where a matter on appeal is referred back to the arbitrator, the arbitrator must hear and dispose of the matter without delay”.

13.	Section 131 does not provide for an appeal by way of case stated or special case.  The right of appeal against the arbitrator’s award is as of right to the High Court on points of law and jurisdiction and by special leave, on any other grounds.

14.	The appellant in the present brings her appeal not by case stated, but as of right and on the grounds set out in her Notice of Appeal.  One such ground as already referred to earlier, raises the issue of whether the Employment Industrial Relations Code 2015 applies to the arbitration proceedings in her case or the Industrial Relations Code 1998 and Employment Ordinance of 1977.  That issue is reserved for determination by this Court at the hearing of the appeal.

15.	I need not add anything further on the application by the respondent.  It is clearly an application that does not accord with the provisions of O.37 of the
 High Court (Civil Procedure) Rules.  Consequently, the respondent’s application for special case is dismissed with costs to be taxed if not agreed.

ORDER:	Application dismissed with costs.

Dated the 26th day of April 2019

SIR JOHN MURIA
Chief Justice