Tongabiri v Attorney General iro Ministry of Works and Energy [2008] KIHC 60; Civil Case 34 of 2002 (30 October 2008)

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

High Court Civil Case 34 of 2002

Between:

Biribo Tongabiri
Applicant

And:

Attorney General (iro Ministry of Works & Energy)
Respondent

For the Applicant: Mr Mantaia Kaongotao
For the Respondent: Mr David Lambourne, Solicitor General

Date of Hearing: 30 October 2008

REASONS FOR DECISION
(Ex Tempore)

This morning I refused an application dated 21 August 2008 and awarded $100 costs to the respondent. I should give reasons for doing so.

The application:-

1. An Order for Certiorari removing into this Court the decision HCCivC 34 of 2002 to be re-opened for hearing.
   
2. An Order that the applicant be allowed to be heard as to ensure that he is given an opportunity for a fair trial.
   
3. Such further Order or Orders which this Honourable Court may deem just .....
   

The grounds:-

1. THAT he did not aware of the proceeding where his application was struck out.
   
2. THAT the case was struck out based on a no instructions given to his then counsel, whereas he had given instructions to another lawyer but not the then counsel for represented her at that time;
   
3. THAT the delay in bringing this application is caused by his then counsels.
   
4. THAT he had not been given a fair trial.
   

On 28 October 2003 in CC 34/2002 I made this Order:-

Action struck out, Ms Huston having no instructions to proceed. The defendant to have his costs fixed at $250.00.

Since then Biribo Tongabiri has been to a number of lawyers and others seeking to have his case re-opened: he wrote a letter to me.

I struck the original action out because on the day it was due for hearing Ms Huston, then the People’s Lawyer, told the Court she had no instructions to proceed. My recollection now is that she said she had done all she could to contact her client and take instructions from him but without success.

An order striking out an action is a final order unless leave be given within a certain time, usually no longer than three or six months, to apply to reinstate the action. No leave to apply was given in this case.

Ms Huston was a competent and conscientious People’s Lawyer. I had no hesitation in accepting what she told the Court. In this case she could get no instructions and without them could not proceed. My conclusion then and I have no reason to revise it now, was that the reason she was unable to proceed on 28 October 2003 was her client’s failure to instruct her. The striking out was a result of his inaction: he was responsible for the striking out.

That being so I should not now allow him, five years later, an opportunity to re-open a case long since closed, finished.

THE HON ROBIN MILLHOUSE QC
Chief Justice