Kum Kee v Attorney-General [2004] KIHC 96; Civil Case 55 of 2002 (10 February 2004)

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

Civil Case 55 of 2002

Between:

WAYSANG KUM KEE
Plaintiff

And:

ATTORNEY GENERAL IRO THE
INTERNAL REVENUE BOARD
Defendant

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

Date of Hearing: 10 February 2004

JUDGMENT

The cause of action arose no later than 1993. There had been going for many years by then a dispute between the parties over income tax said to be owing by the plaintiff to the Internal Revenue Board.

Paragraph 3 of the Statement of Claim:-

Between 6^th January 1993 and 30^th November 1993 (inclusive) the Defendant garnisheed the income of the Plaintiff for his unpaid taxes in a purported exercise of its powers under the Income Tax Act 1990 in the amount of $55,939.41.

Paragraph 3 of the Amended Defence:-

The defendant admits that the defendant purported to garnishee the income of the plaintiff in exercise its powers under the Income Tax Act as pleaded in paragraph 3, but says that in fact the defendant did not garnishee the income of the plaintiff, rather in the period 1992 to 1993 the defendant acted to recover a debt owing from the plaintiff to the defendant by withholding in part payment of moneys otherwise owing to the plaintiff in accordance with its powers under the Income Tax Ordinance, the Income Tax Act and the common law.

By paragraph 2 of the amended Defence the defendant pleaded that the plaintiff's claim is statute barred. The parties agreed that this question should be argued as a preliminary point.

I was given an agreed Chronology of Events. The Chronology begins on 16 February 1981 and ends on 28 November 2002 when the Writ in this action, claiming $55,939.41 was issued.

Attached to the Chronology were Mr Gorman's written submissions. Mr Berina did not put argument in answer to them.

The UK Limitations Act 1939 still applies in Kiribati. Causes of action "founded on simple contract and tort" are statute barred after six years.

Section 2(7) of the Act provides that equitable causes of action corresponding to common law causes of action are subject to the same limitation. Mr Berina's silence I take to mean that he concedes his client's claim is in contract or tort or that his client has an analogous equitable cause of action.

The concession is decisive. The cause of action arose no later than 1993, more than six years ago. It is statute barred.

In discussion with counsel I enquired what followed. Mr Gorman asked that the action be struck out: Mr Berina did not oppose that.

The action is struck out: the defendant will have his costs to be taxed.

Dated the day of February 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice