Nabuange v Attorney General [2007] KIHC 151; Civil Case 69 of 2007 (25 October 2007)

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

High Court Civil Case 69of 2007

BETWEEN:

TEKINA NABUANGE
Applicant

AND:

ATTORNEY GENERAL in respect of
MINISTRY of LINNIX
Defendant

For the Applicant: Mr Banuera Berina
For the Defendant: Mr David Lambourne, Solicitor General

Date of Hearing: 19 October 2006

JUDGMENT

On 13th December 2003 Nei Tekina Nabuange was injured in a motor vehicle accident on Kiritimati Island. She had been the pillion passenger on a motorbike. The truck with which the motorbike collided was owned by the Ministry of Linnix and driven by Maea Kauntunteabike.

In August 2005 Nei Tekina took proceedings against both Maea and the Attorney General (iro Ministry of Linnix) (HCCC 61/05).

The Attorney General entered an appearance and on 21st November 2005 filed a Defence, the substance of which was that Maea "was driving the said truck on a journey of his own and without authority, knowledge and consent of" his employer.

The first defendant Maea did not enter an appearance. On 13th September 2006 the Chief Registrar entered judgment by default against him with damages to be assessed.

On 25th October 2006 I dismissed an application by Maea to set aside the judgment by default and gave my reasons.

Meanwhile on 24th February 2006, by consent, I entered judgment in favour of the plaintiff against the Attorney General "for $2,500 without prejudice" to Nei Tekina’s claim against Maea.

On 20th February 2007 I assessed Nei Tekina’s damages at $45,000 and entered judgment against Maea for that amount.

In the present proceedings begun by Writ dated 4th April 2007 Nei Tekina asks for "an order setting aside the consent judgment in High Court Civil Case No. 61 of 2005 dated the 24th February 2006" claiming that "the consent judgment was made without the consent and the knowledge of the plaintiff and therefore it was made without authority".

On 1st May the Attorney General applied to have the action struck out "as disclosing no reasonable cause of action" because it seeks "to impeach a compromise of High Court Civil Case 61 of 2005 ----".

The point at issue is whether Nei Tekina had given instructions to her then counsel, Mr Karotu Tiba, to settle or whether he acted to settle her claim without instructions.

Nei Tekina:-

Discussion with him at his office and after that at his house. No amount discussed. He said I should accept the amount – around $2,500 but I wasn’t happy. I told him $50,000. He said I should accept – there won’t be any more. I said I was not happy: before the hearing. Then arrangement to be picked up. [She said Mr Tiba was to pick her up from the hospital and bring her to the court]. "I wanted to come to court. Waiting for transport: didn’t come. Few days later went to see him: he said he represented me and that’s why he didn’t come to pick me up ..... Told me to sign: I didn’t nor have I picked it up. Not happy.

He told me I was to receive $2,500 – before court – in his office – advised me to accept – didn’t tell him I needed money and I’d accept.

Karotu Tiba:-

On 10 February 2005 offer by letter – discussed it with her. Saw me in my house: advising her of offer – discussing – advising her better to accept offer than get nothing .... After long discussion in desperate need of money agreed to accept. In my house no written instructions. [Another occasion] to pick her up. Between offer and coming to court she didn’t withdraw instructions .... The file was at office: took only verbal instructions – a few days before court. I could have entered a note but forgot to .... Didn’t get her to sign anything .... I did have clear instructions verbally.

In his address the Solicitor General argued with great force and vigour that I have a stark choice: either Mr Tiba was lying or he was not: either the plaintiff was lying or she was not. All black or all white. If I were to find Mr Tiba to be lying then there would be grave consequences.

I do not accept the choice is as clear cut as the Solicitor General suggested. It may have been a misunderstanding. It may be that Mr Tiba genuinely believed – and still does believe – that he had instructions to settle when he did not have those instructions from his client.

I have too much regard for Mr Tiba to find he lied either to his client or under oath to the Court. However in his handling of the matter he was grossly careless, to his own prejudice and to the prejudice of his client. In two ways: first in making no note - no cost entry – in his file of his instructions to settle: secondly, in not getting his client to confirm her instructions in writing before he accepted the offer on her behalf. Counsel should always make a written note of such vital instructions and should always – for his or her own protection if for no other reason – get instructions confirmed in writing by the client. The more so when the offer was obviously much less than a likely assessment of damages by the Court.

Having been careless in these two respects I have concluded that Mr Tiba must also have been grossly careless in taking his client’s instructions. This led to such a misunderstanding that he believed he had her instructions to accept the offer.

I have concluded that the plaintiff is a truthful witness, that she told the truth when she said she had not instructed Mr Tiba to accept the offer. However the way in which Nei Tekina gave her evidence persuaded me that she only vaguely understood what had been going on. A lady such as the applicant is very likely through lack of understanding to become confused. This should have made Mr Tiba the more careful in taking instructions.

Mr Tiba did not have instructions to settle the claim for $2,500 and should not have done so.

Do I then give the plaintiff the relief she asks for? Set aside the consent judgment and allow the plaintiff to reopen her case against the Attorney General?

I pointed out to Mr Berina that his client is running a risk, one might almost say gambling. The judgment for $2,500 being set aside his client may get nothing at all if the defendant succeeds in the defence that Maea "was driving the said truck on a journey of his own and without authority, knowledge or consent". On the other hand she may get a lot more.

[In support of his application to have the default judgment against him set aside - the application I dismissed– Maea said:-

I was driving with a work colleague, Teang, in a truck as part of my duties of employment with the Public Works Division of the Ministry of Linnix on the date of the alleged motor vehicle collision ..... I was performing my duties as a driver for the Public Works Division of the Ministry for the Linnix in the course of my employment.

This may be encouraging the plaintiff. Whether after hearing evidence and argument I find Maea’s assertions proved is another matter.]

On 24th May 2007 in the present proceedings I decided in favour of the plaintiff on a preliminary point. The Attorney General had moved to have the Statement of Claim struck out on the ground "that this action seeks to impeach a compromise of High Court Civil Case 61 of 2005, and no, or inadequate, grounds exist for such impeachment".

I concluded that the Court had a discretion to set it aside. I said in my Reasons (at page 4):-

The discretion should be exercised sparingly as the learned author of the Law and Practice of Compromise put it:-

The power is discretionary, will be used with "extreme caution" and will be exercised only when a case "calls clearly for interference" having regard to any "grave injustice" which might be occasioned by allowing the compromise to stand.

The next step, the present step, is to decide how to exercise my discretion.

Hence the filing of affidavits by the plaintiff and Mr Tiba and their oral evidence to which I have referred.

The Solicitor General warned me bluntly that I must put out of my mind any thoughts of sympathy for the plaintiff. I would be less than human if I did not have sympathy for her. Here is a poor woman who has been crippled for life through absolutely no fault of her own. Yet I do put thoughts of sympathy out of my mind in coming to a decision.

The onus is on the plaintiff to persuade me that I should exercise my discretion in her favour.

In my earlier judgment I used the word "sparingly", that the discretion should be exercised "sparingly". The Solicitor General preferred that I should use "extreme caution" with regard to any "grave injustice".

I have come to the conclusion that I should exercise the discretion in the plaintiff’s favour. Maea, the other defendant, is likely to turn out to be a man of straw: all the plaintiff is likely to get from him is, at some time in the future, his KPF entitlement. As the case stands the plaintiff would receive from the Government only $2,500 certain. Yet I assessed damages to which she is entitled at $45,000. Moreover she was not well served by her lawyer.

Using the discretion "sparingly" and with "extreme caution" and having regard to any "grave injustice" I exercise it in favour of the plaintiff.

I refuse the Attorney General’s application on 1st May 2007.

Dated the 25th day of October 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice