Uaai v Tong [2015] KICA 3; Civil Appeal 03 of 2015 (19 August 2015)

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

Civil Appeal No. 3 of 2015

BETWEEN

TEBUAI UAAI
APPELLANT

AND

ANOTE TONG
RESPONDENT

Before: Paterson JA
Blanchard JA
Handley JA

Counsel: Batitea Tekanito for appellant
Botika Maitinnara for respondent

Date of Hearing: 15 August 2015
Date of Judgment: 19 August 2015

REASONS FOR DECISION

1. On the 15th August 2015 this Court after considering an application by the appellant for an adjournment until the Court's next sitting in August 2016 refused the adjournment and dismissed the appeal. It now gives the reasons for its decision.
   

BACKGROUND

2. Judgment was given by the High Court in favour of the respondent on 9 December 2014. The respondent filed a notice of appeal on 20 January 2015.
   
3. This Court sits once a year and the appellant and his counsel would have known for several months that this year's session was in mid-August.
   
4. Counsel for the appellant attended a call over on 9 July 2015 when directional orders were made including the following:
   
   • (a) Appellants to file their applications for security for cost on Friday 10 July;
     
   • (b) Court of Appeal session starts on 13 August at 1 pm;
     
   • (c) Appellants to file and serve submissions on/before 24 July;
     
   • (d) Call over 30 July at 9.30 am;
     
   • (e) Respondents to file and serve submissions on/before 4 August;
     
   • (f) Finalizing list on 7 August at 9.30 am; and
     
   • (g) Pursuant to Practice Direction (No. 2), non-compliance of directions may result in appeals being removed from the list or dismissed.
     
5. The appellant took no action in respect of the above orders and did not file an application for security for costs, nor file submissions.
   
6. At a call over on 30 July 2015 the appellant along with other appellants was advised that security for costs and the costs for preparing the appeal book were to be paid by 7 August 2015 so that the list could be finalised. The appellant took no action.
   
7. On 11 August 2015 counsel for the appellant wrote to the Chief Registrar of the High Court requesting that the appeal be deferred to the next appeal session. The appellant was requesting an adjournment until the 2016 session which would normally be held in August. This letter was not copied to the respondent's counsel. The respondent's counsel advised the Court that she had previously been advised by the appellant's counsel that the appeal was to be withdrawn.
   
8. The reasons given for the deferral request were that counsel had had difficulty over the past few weeks to meet with the appellant to sort out his appeal. The appellant had gone to Tabsouth on 21 July and planned to return to finalise submissions before submissions closed but because of cancellation of flights had not returned until 4 August almost a week after submissions closed. Counsel evidently gave the appellant advice which led the appellant to say he wished to contact another lawyer, hence the deferral application.
   

DISCUSSION

9. Rule 17 of the Court of Appeal Rules provides amongst other matters that an application to fix the amount of security for costs is to be made within ten days of service of the notice of appeal; the appellant is to deposit with the Registrar a sum which the Registrar assesses as the probable expense of preparing the record; and that non-compliance with either of these requirements means that the proceeding is stayed and shall be listed at the next sitting of the Court of Appeal "for a formal order of dismissal".
   
10. The probability of dismissal of the appeal is referred to in the directions order made on 9 July 2015. A further warning was given at the call over on 30 July 2015. This Court has power to extend these time limits but the appellant has not applied for extensions. The proceeding was therefore stayed under the provisions of rule 17 by at least 7 August 2015 if not before.
    
11. The non-action of the appellant since filing the notice of appeal indicates objectively, in the Court's opinion, that the appellant did not intend to prosecute the appeal at this session. He was reminded of his obligation to apply to have security of costs paid, to pay the estimated costs of preparing the case on appeal and to file submissions but did not take any action. There was ample time between the call over on 9 July 2015 and going to Tabsouth on 21 July to attend to matters or at least apply for extensions of time. He returned to Tarawa eight days before the session began but took no steps until the letter to the Court on 11 August requesting a deferral of the hearing.
    
12. If the deferral had been granted it would have impliedly excused the appellant from apparent wilful disregard for the procedural orders. The respondent was entitled to have the appeal determined at this session and not have it hanging over his head for another twelve months.
    
13. The Court therefore determined not to grant an adjournment, which would have impliedly removed the stay which applied because of non-compliance with the Court of Appeal Rules, and dismissed the appeal.
    

____________________________
Paterson JA

____________________________
Blanchard JA

____________________________
Handley JA