Nabuangke v Kautunteabike [2006] KIHC 147; 61-05 (25 October 2006)

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

HIGH COURT CIVIL CASE 61 OF 2005

BETWEEN:

TEKINA NABUANGKE
Plaintiff

AND:

MAEA KAUTUNTEABIKE
ATTORNEY GENERAL IN RESPECT OF MINISTRY OF LINNIX
Defendant

For the Plaintiff: Mr Aomoro Amten
For the Defendant: Mr Stephen Earle

Date of Hearing: 25 October 2006

ORDER
(Ex Tempore)

Application to set aside judgment by default. The applicant, the first defendant, says that he did not understand that he needed to do anything when he was served with the writ in this action. He lives on Kiritimati, does not speak English and had no access to legal advice. Moreover he denies having been involved at all in an accident with the plaintiff.

I consider first the applicant’s application to set aside judgment. Even though he does not speak English he could have found someone who did and who could tell him what the document, the writ, said. He had no excuse, despite the facts to which he has deposed in his affidavit sworn 25 October, for merely letting the thing go for months until legal advice became available immediately before these sittings.

As for his denial that he was involved in the accident, he was charged with and convicted of drink driving. I have seen the minutes of the case. After hearing the witnesses the Single Magistrate made a finding that the applicant was involved in the accident. The Single Magistrate need not have done so as the applicant was not charged with any offence arising out of the accident. That does not reduce the significance of his finding:

The court is satisfied that on the 13th December 2003 before or after 8 pm beside Nasda on the public road, accused drove a truck BTC 455 was affected by alcohol and so crashed with motorcyclists Tekina and Kariba.

I am not going to ignore that finding. Moreover his employer, Ministry of Linnix has consented to judgment against it in favour of the plaintiff Nei Tekina. The conclusion I draw is that the applicant’s employer accepted that the applicant, driving in the course of his employment, was involved in the accident.

The application to set aside the default judgment dated 13th September 2006 is refused.

THE HON ROBIN MILLHOUSE QC
Chief Justice