Bank of Kiribati v Corbett [2004] KIHC 84; Civil Case 04 of 1999 (3 May 2004)

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

Civil Case 4 of 1999

Between:

BANK OF KIRIBATI
Plaintiff

And:

CHARLES FREDERICK CORBETT
Defendant

For the Plaintiff: Mr Daniel Gorman
For the Defendant: Mr Banuera Berina

Date of Hearing: 3 May 2004

SECOND MEMORANDUM

In the absence of anyone else to do it, on the 18^th March I taxed the defendant's bill of costs in this old civil action. The bill was lodged for taxation in the sum of $23,492.90. I allowed it at $11,629.50.

The plaintiff has now applied for leave to appeal to the Court of Appeal in respect of three items in the taxed bill:

(a) Subsistence for the witness Temoaiti in the amount of $1,820;
(b) Subsistence for the witness Benateta in the amount of $160; and
(c) Subsistence for the defendant in the amount of $5,760.

The grounds of the application:-

The learned Chief Justice erred in law in ruling (in regard to assessment of party costs) that disbursements for witness expenses and disbursement for litigant expenses are payable on the basis of a subsistence allowance rate without said expenses being vouched.

Mr Daniel Gorman, before the hearing of the application, made written submissions. I appreciate his industry in setting out the arguments pro and con.

I have refused the application for leave for two reasons. The first is that, as a rule, a final Court of Appeal should not be troubled to decide on matters of costs in courts below, certainly not individual items in a taxed bill.

Secondly there is little merit in Mr Gorman's arguments in support of his application. The crux of his arguments is that only witness expenses vouched for should be allowed on taxation. Mr Gorman referred me to two decisions of Taxing Masters of this court. The first was Teburea Namoori v Koriri Teaiwa Tenieu, 1992, in which Taxing Master Teaiaki Koae thought expenses should be vouched for. "I have no doubt that a breakdown of actual cost supported by vouchers will facilitate the resolution of disputes and simplify the process of taxation".

The second was the Beretitentis' case (Teatao Teannaki v Teburoro Tito), 1994, in which Taxing Master Suttill allowed a daily rate of $20.

Without hesitation I prefer Master Suttill's approach. In Kiribati society it would be next to impossible to vouch for living expenses. Frequently, perhaps nearly always, expenses are not incurred in money: even when they are it would be most burdensome to have to keep track of, for example, every loaf of bread bought. The more so in this action when the allowance is for subsistence in 2000 and 2001, now three years ago. The Government had, some time before Master Teaiaki's taxation in 1994, allowed its employees a subsistence allowance of $20 per day. The allowance is still the same. It is the figure I used on this taxation. I regard it as the best yard stick.

It may be asked, "why has it taken so long for the defendant's bill to be taxed?" The bill was lodged for taxation at the beginning of June 2001. The delay has been due to several unfortunate mishaps and omissions which should not be regarded as the responsibility of the defendant.

Dated the day of May 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice