Attorney General v Tanree [2007] KICA 18; Civil Appeal 05 of 2007 (30 July 2007)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Civil Appeal No 5 of 2007

BETWEEN

ATTORNEY GENERAL IN RESPECT OF
MINISTRY OF HEALTH & MEDICAL
SERVICES
Appellant

AND

TABARE TANREE
Respondent

Before: Hardie Boys JA
Tompkins JA
Paterson JA

Counsel: David Lambourne for appellant
Karotu Tiba for respondent

Date of Hearing: 25 July 2007
Date of Judgment: 30 July 2007

JUDGMENT OF THE COURT

INTRODUCTION

Tabare Tanree (the respondent) claimed overtime for his work as a night-watchman at the Betio Hospital. On the 20th March 2007 the High Court gave him judgment on liability "with damages to be assessed". The parties agreed the damages of $6,979 plus costs of $300. The Attorney-General appeals the liability judgment.

THE JUDGMENT

The Chief Justice noted that the first point to be considered "is whether the National Conditions of Service (NCS)" applied. He concluded on the balance of probabilities that the NCS were never imported into the respondent’s contract and "the defence of liability therefore fails". He did not determine any other issues.

THE APPEAL

Mr Lambourne for the appellant submitted that the manner in which the trial was conducted was seriously deficient. The evidence of the respondent was very brief and he was called when the Chief Justice suggested he be called to be asked whether he received a letter of appointment. His evidence only covered whether he had received a letter of appointment and whether he had signed an employment contract. The only other material before the Court were several overtime dockets handed up by counsel for the respondent from the bar.

The appellant’s case is that there was no evidence upon which the Chief Justice could have relied to ascertain the terms of the alleged contract. The terms of the contract were put in issue by the appellant’s amended defence. That amended defence was amended with leave on
2 March 2007, nearly three weeks before the hearing, and put in issue several of the respondent’s factual claims.

Mr Tiba for the respondent submitted that the court by taking into account the Employment Act and the common law "properly ascertained if not expressly but impliedly the terms and conditions of the contract".

THE COURSE OF THE HEARING

It is not possible to assess the strength of the appellant’s case without considering the pleadings and the course of the hearing. Prior to the commencement of the hearing the appellant in its amended defence had put at issue the actual terms of the contract. Its defence included an allegation that the NCS formed part of the contract. In view of this allegation the appellant had an obligation to discover letters which it said it had sent to the respondent confirming that the NCS’s terms formed part of the contract conditions. It did not do so.

At the beginning of the hearing the Chief Justice asked:

"Is there any dispute on the facts or is it simply a matter of an interpretation of the NCS".

Counsel for the appellant replied:

"Your Honour I take it as a matter of the interpretation of the NCS".

In reply to a further question counsel for the appellant replied:

"Your Honour there’s no contest on the facts. We admit that we employ the plaintiff in this case".

In view of the comments from counsel for the appellant this Court can understand why the Chief Justice formed the view that there was no dispute as to the facts.

Counsel for the plaintiff (the respondent in this case) made submissions as to the rate to which the plaintiff was entitled for overtime. This statement was objected to by counsel for the appellant who noted that this information was not even included in the statement of claim. Counsel objected to rates being relied upon which were not alleged in the statement of claim.

It was apparent from exchanges between counsel for the appellant and the Chief Justice that the defendant did not accept the rates being used by the plaintiff in its overtime claim. No evidence was led by the plaintiff to support the rate of its claim although the Chief Justice relied on vouchers handed up from the bar but not admitted as exhibits.

A considerable portion of the hearing time was taken up with a dispute over the failure of the defendant to discover documents upon which the defendant relied to establish that the NCS applied in this case. Undoubtedly these documents should have been discovered and the appellant was in default of its obligations in not discovering them. The Chief Justice did not allow the appellant to produce these documents.

When the question of whether the respondent had received a letter of appointment became an issue the Chief Justice suggested to the respondent’s counsel that he call the respondent to ask him whether he ever received the letter of appointment. He was called and denied that he received the letter. This was virtually all he was asked. The respondent did not give evidence to support his claim of the hours he worked, his entitlement to overtime after working a certain number of hours, or either his basic or overtime rates of pay.

The Chief Justice indicated that he could not find that the NCS applied to the respondent. He indicated that he would not let the appellant call evidence that the respondent had received a letter advising that the NCS were part of the respondent’s contract. After much debate, during which the appellant in the form of the Attorney General Office was severely criticised for its failure to discover the alleged terms of appointment letter, the appellant was given a short adjournment to see whether it could adduce evidence that the letter of appointment had actually been handed to the respondent. The appellant evidently could either not adduce this evidence, or was unable to do so in the time given.

DISCUSSION

From an objective point of view the manner in which this case was run was unsatisfactory. The respondent should have been called to assist the Court in determining the terms of the contract, e.g. the overtime rate, the hours which must be worked and the number of hours which the respondent was required to work before overtime was paid. The respondent was called at the invitation of the Chief Justice to give evidence on one point. When he had given that evidence the judge in reply to a question from the respondent’s counsel indicated "that probably enough". Counsel for the appellant then had the opportunity to cross examine the respondent on the letter which had not been discovered.

Clearly the appellant’s counsel must take part of the responsibility of the way in which this trial proceeded. His statements referred to in paragraph 7 above may have led the Chief Justice to assume that there was no dispute as to several important matters pleaded on which evidence was not adduced. This Court can understand why the judge said in his judgment:

"At the beginning of the hearing I asked counsel whether the facts alleged in the pleadings were admitted. It seems they were. I was told it was only a matter of interpretation".

The fact remains that the Chief Justice did not address the issue of the terms of the contract. He adopted the allegations in the statement of claim, which were denied in the amended defence, without any supporting evidence apart from some vouchers which were handed up from the bar, and not admitted in evidence. Notwithstanding the statements made by counsel, and noted in paragraph 7 above, counsel for the appellant made it clear during the hearing that it did not accept all of the allegations. Much of the hearing was sidetracked by the discovery dispute which arose. The judge’s interest was concentrated upon the NCS issue.

During final exchanges counsel for the appellant said:

"Your Honour in the absence of any terms of contract, construction of contract depends on the terms of the contract. There is no contract in this case Your Honour being submitted by my learned friend through evidence therefore it would be impossible to interpret that under the contract that exist between the two parties the plaintiff has to be paid overtime Your Honour".

In the circumstances this court is of the view that while the Chief Justice determined that the NCS did not apply, and that he had sufficient evidence to make this finding, he did not have before him evidence on which he could find liability. There was no evidence as to the other terms of the contract. While he may have been initially misled by counsel (see paragraph 7 above) he should have known by the end of the hearing that the appellant did not accept other basic allegations made in the statement of claim. In the circumstances we have concluded that the judgment on liability should be set aside.

RESULT

The appeal is allowed. The matter is remitted back to the High Court for a rehearing.

COSTS

In the circumstances there will be no order for costs.

Hardie Boys JA
Tompkins JA
Paterson JA