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ANZ Bank (Kiribati) Ltd v Murdoch [2021] KIHC 21; Miscellaneous Application 15 of 2021 (10 June 2021)

JUDGMENT

1. The Applicant sought an order for committal on 5 May 2021 against the Respondent for failing to adhere to the default judgment issued against him.
2. The Respondent through his lawyer raised a valid issue with respect to Order 61 rule 21 of the Western Pacific High Court (Civil Procedure) Rules 1964 set out below:
   

“Division 3 - Attachment for Contempt.

Procedure for attachment similar to procedure for mandamus.

21. (1) The procedure in applications for attachment for contempt of court in the cases to which this Rule applies shall be the same as in applications for an order of mandamus and Rules 2, 4, 5 and 6 of this Order shall apply accordingly to applications for attachment, so far as they are applicable:

Provided that the issue of the writ of attachment shall not be ordered by a Judge in Chambers, and the notice of motion shall be personally served unless the Court dispenses with such service.

(2) This Rule applies to cases where the contempt is committed-

(a) in connection with proceedings to which this Order relates;

(b) in connection with any proceedings in Court, except where the contempt is committed in facie curiae or consists of disobedience to an order of the Court;

(b) in connection with proceedings in an inferior court.”

3. The concerned provisions mentioned in Order 61 rule 21 such as rule 2 states that leave should be granted by the court before an application for mandamus, prohibition or certiorari thus leave shall be sought first for a committal order as correctly submitted by Ms Maata.
4. Ms Karakaua, during the hearing of Ms Maata’s submission about the abovementioned order conceded that leave should be sought and orally amended her application to seek leave which the Respondent objected to.
5. This court finds that the error on Ms Karakaua’s application for a committal order is not a deliberate one and quick to amend her application for leave and there is no clear prejudice to the Respondent should leave be granted. Ms Maata, on the other hand even though objected to leave sought by the Applicant gave no reasons for their objection except in leaving the decision with the court.
6. This court is inclined to grant leave to the Applicant in this matter to seek an order for committal for the reasons mentioned.
7. Orders of this court:

1. Leave is granted to the Applicant to seek an order for committal against the Respondent;
2. Costs against the Applicant (ANZ Bank (Kiribati) Ltd) to be agreed.
   

Dated 10^th day of June 2021.

__________________________
Judgment of Abuera Uruaaba,
Commissioner of the High Court