Attorney-General for Commissioner of Police v Kaikai [2019] KICA 1; Civil Appeal 1 of 2018 (21 August 2019)

IN THE KIRIBATI COURT OF APPEAL ] Civil Appeal No. 1 of 2018
CIVIL JURISDICTION ]
HELD AT BETIO ]
REPUBLIC OF KIRIBATI ]

BETWEEN ATTORNEY-GENERAL IRO
THE COMMISSIONER OF POLICE APPELLANT

AND ATABU KAIKAI RESPONDENT

Before: Blanchard JA

Handley JA

Heath JA

Counsel: Tumai Timeon for appellant

Banuera Berina for respondent

Date of Hearing: 16 August 2019
Date of Judgment: 21 August 2019

JUDGMENT OF THE COURT

[1] The Republic represented by the Attorney-General iro the Commissioner of Police has appealed from an award of damages to a retired officer who had been a prison warder on Christmas Island immediately before he retired.

[2] The plaintiff’s claim was based on the National Conditions of Service which formed part of his contract of employment. The relevant provisions dealing with repatriation to the officer’s home island on retirement were:

“C.10(i) Except where statutory provisions otherwise provide, an employee must retire on reaching the age of 50 years.

(ii) Cabinet, in its meeting 29/01 (2) of 13/9/01, has decided that as a policy for retiring officer, a permanent employee who has satisfactorily served Government up to the official retirement age including any authorized extension and has to be repatriated back to his home island, his terms of appointment is allowed to continue working and to continue occupying a Government housing until the first available transport to his home island ready (PSO Memo
No. 29/01).

H.15 an employee travelling on retirement or on termination of appointment other than on dismissal, and on completion of contract, is entitled to transport for himself, his wife and all of his children from place of duty to his home island in the class appropriate to his post provided the passages are taken up within six months.

E.5 On retirement: an employee proceeding by sea on retirement or on leave pending retirement at Government expenses will be eligible to take with him at Government expenses up to 660 u. ft. of effects. To qualify for this allowance, transport of baggage must take place within six months of the employee’s last day of duty”.

[3] The plaintiff retired on 15 May 2011 being then located with his family on Christmas Island. His home island was Nonouti. Arrangements were made for the transport of the plaintiff and his family to Tarawa on the MV Matangare at Government expense. In the event they travelled on this vessel, leaving Christmas Island on 5 November 2011, arriving at Tarawa on 14 November.

[4] It appears that no arrangements had been made by the defendant for the accommodation of the plaintiff and his family in Tarawa so he checked in at a Hotel. When this became known to the defendant’s office staff the family were moved into Government housing.

[5] Without consulting the plaintiff the defendant arranged for the family to be returned to Nonouti, on a vessel departing on 22 November. The plaintiff was notified of these arrangements by letter received from a driver employed by the defendant at 12 noon on 22 November, the day the vessel was due to depart at 3 pm. The letter did not name the vessel, or its location, the plaintiff was not provided with tickets, and no arrangements were made or offered for the movement of his family and their household effects to the appropriate wharf.

[6] The Commissioner of the High Court, who heard the case, had no difficulty in holding that the defendant had not made reasonable arrangements for the plaintiff and his family to return to Nonouti on the vessel that left Tarawa on
22 November. We agree.

[7] At that stage the defendant’s contractual obligation to return the plaintiff and his family to Nonouti remained unperformed, and it has not been performed since.

[8] The plaintiff and his family remain at Bikenibeu with relatives, having moved out of the defendant’s housing on 22 November.

[9] The Defendant’s witness Mr Tewaniti said in his affidavit of 31 March 2012 that “the Plaintiff informed us that he will not board the ship to Nonouti as he will take up his case against the Defendant in the High Court”. (The plaintiff’s statement).

[10] This was hearsay but it was not objected to and is therefore evidence in the case.

[11] It appeared in the cross examination of Mr Tewaniti that the plaintiff’s statement was made to the defendant’s driver who delivered the letter of
22 November. Counsel for the plaintiff did not apply to have the hearsay in the affidavit struck out or to recall the plaintiff to deny the hearsay.

[12] The plaintiff’s statement evinced his intention of remaining on Tarawa at that stage.

[13] The plaintiff made no attempt to obtain travel arrangements from the Defendant for his return to Nonouti; and the defendant made no further attempt to contact the plaintiff to make such arrangements.

[14] The plaintiff’s claim is a two parts, the first for the period from his retirement until he reached Tarawa, from 15 May to 14 November 2011 and the second for the period since.

[15] The defendant raised estoppel as an answer to the first part of the claim based on letters the plaintiff wrote to the defendant on 3 March 2010 and
3 August 2011. He sought in those letters permission to remain on Christmas Island, and for him to receive the cost of his transfer back to Nonouti which the defendant would save if he stayed.

[16] There was no reply to the first letter, and the defendant refused the plaintiff’s second offer by a letter dated 1 September 2011.

[17] There is no evidence that the defendant relied on either letter from the plaintiff and changed his position in any way. He ignored the first and rejected the second. That was the end of any case of estoppel.

[18] The defendant’s offer of transport back to Nonouti given to the plaintiff by letter of 22 November cannot possibly be a tender of performance of its contractual obligation to the plaintiff to repatriate him and his family for the reasons already given.

[19] The defendant’s repatriation obligation therefore remained unperformed, but the plaintiff’s statement showed that it would have been pointless for the defendant to make a further tender of performance. The defendant was therefore excused from further performance of that obligation: Peter Turnbull Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd [1954] HCA 25; (1954) 90 CLR 235.

[20] There is no evidence of the frequency of the sailings between Tarawa and Nonouti at the relevant time but counsel agreed that they occurred every two months or thereabouts.

[21] The decisions of this Court in Attorney-General v Aree of 31 August 2011 (Civil Appeal No. 15 of 2011) and of the Chief Justice at first instance in that case established the Plaintiff’s right to a subsistence allowance after his retirement until his return to Nonouti.

[22] This Court said in that case:

“Arguably the cost of repatriation includes the cost of maintenance while the respondent is awaiting transport. Alternatively it is arguable that the respondent is entitled to damages when the employer fails to make arrangements for prompt repatriation. It does not matter how the entitlement is characterized...... However the Chief Justice was correct in making his award”.

[23] The Chief Justice said in Aree v Attorney-General 29 April 2011 (High Court Civil Case 128 of 2010) based on the same obligation of the Commissioner of Police to repatriate a retired officer to his home island:

[33].... “His salary ceased on the same date he received the notice of termination. However, the defendant’s obligation to repatriate him back to his home island has not been fulfilled. That obligation must include the cost of travelling and subsistence expenses from Butaritari to Makin Island, as well as subsistence expenses while waiting to be repatriated starting from date of termination to date of repatriation”.

[24] These decisions were not challenged.

[25] The Commissioner of the High Court awarded the plaintiff $43,250 as subsistence expenses for the time spent on Christmas Island before embarking on the MV Matangare and $145 for each day spent on Tarawa until his repatriation to Nonouti which amounted in total to $407,055.

[26] The amount is so large as to bespeak error.

[27] The plaintiff’s final written submissions claimed $40,020 for the 174 days from his retirement to 5 November 2011 when he boarded MV Matangare. The Commissioner awarded $43,750 for this period without explanation. The lower figure must be substituted.

[28] The plaintiff’s final written submissions claimed $125 a day from his arrival in Tarawa on 16 November “until repatriation”. The Commissioner awarded $145 a day for this period without explanation. The lower figure must be substituted.

[29] The amount awarded under this head was $363,805.

[30] Since the plaintiff indicated to the defendant that he was staying on Tarawa and there was no point in making arrangements for him to return to Nonouti the Defendant’s obligation could no longer be open ended.

[31] In our judgment the appropriate cut off date is the next sailing for Nonouti after 22 November 2011, a period of two months. The defendant would have been liable in respect of this period in any event if the plaintiff had returned to Nonouti. To this must be added the nine days already spent on Tarawa since the Plaintiff’s arrival on 14 November a further $1,125. The overall total for the second segment is $9,550 giving a grand total of $49,570.

[32] The following orders are made:
(1) Appeal allowed with costs.
(2) Judgment of the High Court set aside except as to costs.

(3) In lieu thereof substitute judgment for the plaintiff for $49,570 with effect from 1 October 2018.

(4) Costs to be set off so that only the net amount is payable and receivable.

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Blanchard JA

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Handley JA

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Heath JA