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High Court of Kiribati |
IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI
HIGH COURT CIVIL CASE 70 OF 2007
BETWEEN:
DAVID PINE
PLAINTIFF
AND:
ATTORNEY GENERAL IRO COMMISSIONER OF POLICE
DEFENDANT
For the Plaintiff:Mr Banuera Berina
For the Defendant:Mr David Lambourne, Solicitor General with him Mr Birimaka Tekanene
Dates of Hearing:9, 10, 11, 12 & 17 February 2009
JUDGMENT
On 20 August 2008 the Court of Appeal gave judgment in the appeal from my judgment in which the respondent, David Pine, had been awarded $900,000 damages against the appellant, the Attorney General iro Commissioner of Police.
The Court of Appeal dismissed the appeal on liability but allowed it on the assessment of damages, directing another hearing.
This judgment should be read in conjunction with the High Court judgments (HCCC 70/07) of 18 January 2008 and 11 February 2008 and the judgment of the Court of Appeal (CA 1/2008).
In their judgment on appeal the members of the Court helpfully gave directions on "the procedure to be followed in the High Court for the rehearing of damages". We have adhered to the directions more or less. Even though the Court of Appeal directed that "fixture to be allocated on a priority basis" it was not until Tuesday, Wednesday and Thursday, 10th, 11th and 12th February I heard the evidence and counsel’s addresses on Tuesday 17th February.
In the Amended Statement of Claim dated 1 September 2008 the plaintiff claimed:-
| Live fish export | 142,806.72 |
| Shark fin | 78,546.72 |
| Cargo delivery (shipping service) | 1,151,406.72 |
| Value of properties | 2,379.06 |
The claim for value of properties was abandoned early during the hearing of the assessment. By the time of counsel’s written submissions before addresses Mr Berina had varied the claim:-
A considerable reduction, mainly the result of a long, detailed and thorough cross examination by the Solicitor General of the plaintiff. David Pine admitted that he had put his claim at the very highest and acknowledged that he had omitted many expenses – such as maintenance of equipment, workman’s compensation and so on – which he asserted would not be incurred but which I find he would have had to meet.
The Solicitor General described the plaintiff (during his cross examination) as a "shonky businessman" and dishonest. I do not accept that he is "shonky" and dishonest. In the witness box David Pine struck me as frank, prepared to admit mistakes and omissions (or to explain them). I do not find him a dishonest man. Even if he were a "shonky businessman" that would not justify the treatment he received and it would not affect my assessment.
I have relied on the plaintiff’s evidence only in the broadest way after his searching cross examination by the Solicitor General but I am satisfied he had a chance of making some profit on each of his undertakings.
Mr Puta Martin Tofinga, Assistant Impact and Environmental Assessment Officer in the Ministry for the Environment said he believed the plaintiff would have complied with any requirements necessary. I accept Mr Tofinga’s opinion. Certainly the plaintiff’s actions before he left Tarawa in February 2006 were those of a man who was anxious to do everything he had to do to get his venture going: and he thought he had.
Like many a plaintiff before him David Pine has tried to make every post a winning post: his claim has been much inflated. Besides my assessment of David Pine from his business history, I conclude he is a perennial optimist: always expecting his business ventures to turn out more successfully than they have.
Finally the plaintiff is handicapped by the way in which he has carried on business – mostly in cash. He has not filed a tax return since 1998 and his business records are quite incomplete. He must bear the consequences of that. Lack of business records makes it difficult to prove losses.
I take these three general considerations into account in making the assessment – and the defendant’s pleading to the contrary in the Amended Defence that the plaintiff is not entitled to any relief at all.
There is not much, if any, hard evidence to go by. Yet my definite, overall impression is that had the charter been allowed to continue the plaintiff would have come out of it comfortably on the right side of the ledger. I must assess the plaintiff’s loss of a chance to make a success of this business venture. But at how much?
The plaintiff had chartered a vessel, Wellbeing No. 3, from Fiji.
The Vessel Charter Agreement would have expired on 9 November 2006: "The duration of this agreement will be for one year only, or changes may be made any time by both directors" (presumably the owner Mr Yoon Hee Joong and the plaintiff – they are the signatories)" if any inconveniences felt."
There is no direct evidence that the charter would have been renewed but the condition I have quoted leaves room for renewal/extension. I shall take into account that, had the venture prospered, there was some prospect of the charter continuing after 9 November 2006. I suggest it unlikely that the plaintiff, having set up his businesses would have meant them to last less than 12 months.
One other point on the charter: the Solicitor General has argued that damages, if any, should be calculated only to the date of release of Wellbeing No. 3 on 26 October 2006. That would be quite unrealistic - to think that the vessel could go into service for another two weeks until 9 November. I shall assess damages up to the end of the charter period – to 9 November 2006 and bear in mind the chance that it may have been renewed.
I come now to consider each of the heads of claim. Before I do I should again emphasize a comment applicable to the first three heads. The figures and calculations under each head are so unreliable that it would be useless to analyze them closely: it would be a waste of time. All I do is to use them as a rough, very rough, guide.
No problem with licensing under this head: the plaintiff had all the permissions he needed to trade. Instead, the Solicitor General concentrated his submissions on the unlikelihood that the plaintiff could make a success of trading between Kiritimati, Teraina and Tabuaeran. No one ever has made a profit, why should the plaintiff? As well, in July 2006 MV Betiraoi arrived to carry cargo between the three (it seems with a Government subsidy to Kiribati Shipping Services Ltd of $400,000 a year). Even if Wellbeing had been operating profitably until then it would have lost business to the bigger vessel. [As Mr Berina pointed out it may be that if by then Wellbeing were coping with cargo, Betiraoi may not have come at all.]
Again there is no point in analyzing closely the figures finally before the Court: they are far too uncertain.
The plaintiff should have been given the chance to make a go of it – and from the beginning of March into November.
I shall allow $40,000 for the loss of the chance.
b. Live Fish Export
The plaintiff had been in this business in the later 1990s. According to his tax returns for 1998, on a turnover of about $200,000 he had made a profit of only $3,000. In cross examination he asserted that this time he would have had much smaller overheads: his profit would have been very much greater.
As I told the Solicitor General, I know from conversations I have had with operators on Kiritimati that live fish export can be a most profitable operation. Mr Lambourne accepted this but his reply was that the plaintiff did not have the necessary licence to engage in live fish export. Until he had a licence his activities would be illegal and the Court should not allow any damages for loss of profits arising out of illegal activities. He cited the judgment of Sheppard J in Brownbill and Another v Kenworth Truck Sales (NSW) Pty Ltd and Another (39 FLR 191 @ 202). With respect I agree with what the learned judge said.
The plaintiff did not have a licence for pet fish export. Mr Lambourne said it took months after application to get one but conceded that if the plaintiff had made an application it was likely he would be granted licence: if he applied in March he should have it by the end of May. I shall work on the plaintiff having been able lawfully to export live fish for little over five months.
Making allowance for the unreliability of the plaintiff’s figures and his omission in his calculation of some overheads which I accept he would have had and a further allowance for contingencies I shall assess damages under this head at $50,000.
c. Shark Fin
What apparently raised the ire of the authorities was that at Kanton Island on the way to Kiritimati from Tarawa Wellbeing No. 3 caught over 200 sharks. This was in breach of the plaintiff’s undertaking in Tarawa before he left that he would catch only 50 sharks (? per month) and not catch them by netting. He broke the undertaking at Kanton. While Wellbeing was at Kanton the plaintiff had no licence for fishing for shark. He would have had to make application for one. What he had done at Kanton may well have reduced his chances of obtaining a licence: reduced it but not entirely extinguished his chances.
From the evidence of Mr Tofinga, called by the defendant, I am doubtful whether the plaintiff would have needed a licence when the fishing was being done in the vicinity of Kiritimati, Tabuaeran and Teraina. The plaintiff said fishing for shark fin would be done using small boats. Mr Tofinga said fishermen using small boats for this purpose did not need to be licensed. I accept this evidence.
There is some chance that the plaintiff would have been given a licence and it may be, from Mr Tofinga’s evidence, that no licence would be needed.
I assess damages under this head at $35,000.
Mr Berina conceded during argument that his client should claim for the lost shark fin against the owner, Mr Yoon Hee Joong, not against the present defendant.
The claim for general damages arises out of the way in which the plaintiff was treated over this matter: the unlawful seizure of the Wellbeing: the complete destruction of his business venture. The facts are in the original High Court judgments and in the judgment of the Court of Appeal.
In a free and open society such as we enjoy and value in Kiribati it simply should not have happened. Even now there has been no explanation, let alone any expression of regret.
It was not until Puta Tofinga’s evidence that there was a clue to an explanation. He said Environment (the Ministry of which he is an officer) was "told" of the seizure of the vessel. I conclude that no one in Environment ordered the seizure. Mr Tofinga said the two Ministries, Environment and Fisheries should work together. Not much evidence of that in this case.
What compounds the plaintiff’s damage, greatly aggravates the wrong done to him, is the acknowledgment during Mr Lambourne’s final submissions that, in 2006, because of some "bizarre oversight" (his words) in the Fisheries Ordinance as it then was the plaintiff had not in the circumstances of the case, committed any offence for which he could be prosecuted. Under the Environment Act, Mr Lambourne conceded, there is no power to seize a vessel. It follows that Wellbeing was under arrest unlawfully (to use the analogy I used in the original judgment) for nearly seven months, from its seizure on 2 March until release on 26 October. I am justified in assuming that the Attorney General must have known – or at least should have known – some time in March that his client had wrongfully seized the vessel. Yet his officers said nothing in Court about the lack of power to hold the ship. If I had known on 23 March that there was no power I most certainly would have ordered immediate release.
[The defendant has argued that after my refusal to release the vessel on 23 March the ship was in lawful custody. The defendant cannot take advantage of his own omission to be frank with the Court. I reject the argument. The defendant opposed release knowing that detention was unlawful. Had I known that it was unlawful, had I known that more than six months later the Attorney General would not go on with the prosecution under the Fisheries Ordinance, I would immediately have ordered the release of the ship and its contents. The refusal to release the vessel was made per incuriam.]
The Solicitor General complained that he came to Court to meet a claim for exemplary damages but was confronted by a claim not for exemplary but for aggravated damages. The line between the two (if there is a line at all) is blurred. The Solicitor General hardly should complain: aggravated damages are generally regarded as less than exemplary damages.
In considering this question of aggravated and exemplary damages I have looked at two authorities. The first is Rookes v Barnard [1964] UKHL 1; (1964 AC 1129). I refer to the speech of Lord Devlin at 1226. In considering exemplary damages His Lordship talks of "oppressive, arbitrary or unconstitutional action by the servants of the government ........... the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service". With respect, irreproachable sentiments: applicable to the present case. I venture to go further and suggest that the aim of Government and its servants is to advise and encourage a person embarking on a new lawful business exercise. There is no legal obligation to advise and encourage as the Solicitor General reminded me but there is, I suggest, a moral obligation.
The second authority is Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (117 CLR 118 @ 149 per Windeyer J):-
The formal distinction (between exemplary and aggravated damages) is, I take it, that aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment – moral retribution or deterrence.
This is a case for aggravated damages rather than exemplary damages but the line is blurred: the wrongful act of the defendant "was aggravated by the manner in which the act was done" and the omission to be frank with the Court leading to detention of the ship until 26 October may require "moral retribution or deterrence".
Mr Lambourne made two other submissions. First that the police on Kiritimati acted perfectly properly and courteously towards the plaintiff. Perhaps so but that ignores the orders, on which they acted, from the Commissioner of Police and his officers here in Tarawa. The actions in ordering the seizure were high handed and unjustified in law. The police on Kiritimati were simply, they said, "carrying out orders from Tarawa".
Mr Lambourne’s other submission was that there is no evidence the plaintiff was humiliated, inconvenienced and caused anxiety by all this. Evidence is not needed: that reaction in these circumstances may be assumed: it is common experience. In any case the plaintiff gave evidence that what happened fractured his relationship with Mr Yoong Hee Joong – and destroyed any chance of a renewal of the charter. I reject Mr Lambourne’s submission.
I allow $75,000 for general damages.
The total assessment under the four heads is $200,000.
I have not considered taxation. That should be a matter between David Pine and the Commissioner, not requiring the adjudication of the Court.
Before making orders I shall hear counsel on interest and costs.
THE HON ROBIN MILLHOUSE QC
Chief Justice
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URL: http://www.paclii.org/ki/cases/KIHC/2009/37.html