Attorney General, iro Republic of Kiribati v Baakoa [2013] KICA 6; Civil Appeal 07.2013 (23 August 2013)

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

Civil Appeal No. 7 of 2013

BETWEEN

ATTORNEY GENERAL IRO REPUBLIC OF KIRIBATI
APPELLANT

AND

TEROUTA BAAKOA
RESPONDENT

Before: Paterson JA
Blanchard JA Handley JA
Counsel: George Mackenzie for appellant
Raweita Beniata for respondent
Date of Hearing: 21 August 2013
Date of Judgment: 23 August 2013

JUDGMENT OF THE COURT

1. The Attorney-General has appealed from the decision of the Chief Justice on 8 August 2012 that the respondent's claim for compensation for contraventions of her constitutional rights under article 10 of the Constitution was not barred by res judicata.
   
2. The respondent's action for compensation under article 17 was based on the circumstances of her conviction and sentencing on 28 April 2009 by a magistrate at Beru on charges of carrying an offensive weapon in public and assault occasioning actual bodily harm. She was sentenced to 3½ years imprisonment, and commenced to serve her sentence immediately. She appealed to the High Court, and was released on bail on 4 September 2009. On 24 September 2009 her appeal was allowed, her convictions were quashed, and the cases were returned to the Beru Magistrates' Court for rehearing.
   
3. Millhouse CJ said that the police prosecutor opened the prosecution case to the magistrate, but called no evidence. The respondent went into evidence and denied the charges, but was nevertheless convicted. The Chief Justice found that the trial was fundamentally irregular and that conclusion was inevitable. On 4 September 2010 the respondent was acquitted at the rehearing when the prosecution offered no evidence.
   
4. The respondent brought proceedings by originating summons on 27 June 2011 joining the Attorney General as the sole defendant claiming compensation for the contravention of her constitutional rights under article 10. In April 2012 the defendant applied by Notice of Motion for the Originating Summons to be struck out on the ground that the issues were res judicata and the proceedings were an abuse of process.
   
5. The defendant alleged in support of his motion that the civil claim had been or could have been decided by the High Court in the criminal appeal on 24 September 2009 or by the Magistrates' Court on 4 September 2010. On 8 August 2012 Muria CJ dismissed the defendant's application and the defendant appealed to this Court maintaining the claim that the civil proceedings should be dismissed on one or other of those grounds.
   
6. The appellant's claim based on res judicata must depend on either cause of action estoppel or issue estoppel. The principles governing cause of action estoppel were summarised by Diplock LJ in Thoday v Thoday [1964] P 181, 197:
   

"..... cause of action estoppel ..... prevents a party from asserting or denying as against the other party, the existence of a particular cause of action, the existence or non existence of which has been determined by a Court of competent jurisdiction in previous litigation between the same parties".

7. The High Court and Magistrates' Court in the criminal proceedings were not courts of competent jurisdiction for the purpose of awarding compensation under article 17 for contravention of the respondent's rights under article 10, and neither Court ruled on the existence of that cause of action. There is no cause of action estoppel.
   
8. The other potentially relevant head of res judicata is issue estoppel. This depends on the identification of an issue which is an ingredient in the cause of action in the second proceedings which was determined in the first proceedings. Again in Thoday v Thoday [1964] P 181, 198 CA Diplock LJ said:
   

"If in litigation upon one cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction ..... neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the Court has in the first litigation determined that it was not, or deny that it was fulfilled if the Court in the first litigation determined that it was".

9. The Chief Justice in the criminal appeal, and the Magistrates' Court in the rehearing did not determine any issue that will have to be decided in the civil proceedings, and there is no issue estoppel. In any event the Magistrates' Court was not a court of competent jurisdiction under article 17, and the High Court in its criminal appellate jurisdiction could not award compensation.
   
10. Mr Mackenzie also relied on Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100, 115; [1843] EngR 917; 67 ER 313 where Wigram V.C. said:
    

"... the Court requires the parties to ... litigation to bring forward their whole case, and will not ... permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward ... The plea of res judicata applies, except in special cases ... to every point which belonged to the subject matter of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time".

11. Since the High Court could not award compensation for contravention of the plaintiff's constitutional rights in the criminal appeal and the Magistrates' Court could not award such compensation in any proceedings, her claim for such compensation could not be "brought forward" in that appeal, or in that Court, and her claim was never "part of the subject in contest" in those proceedings. Accordingly the Henderson principle cannot apply.
    
12. In our judgment the appeal fails. The following orders are made:
    
    1. Appeal dismissed;
       
    2. Appellant to pay the respondent's costs and disbursements to be fixed by the Registrar.
       

Paterson JA

Blanchard JA

Handley JA