Tirikai v Attorney General [2010] KIHC 81; Civil Case 75 of 2010 (3 August 2010)

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

High Court Civil Case 75 of 2010

BETWEEN:

BAITONGO TIRIKAI & OTHERS
PLAINTIFFS

AND:

ATTORNEY GENERAL IRO
COMMISSIONER OF POLICE
1ST DEFENDANT

DAVID PINE T/A MAURI MARINE
EXPORTS AND CHARTERER OF
"WELLBEING NO. 3"
2ND DEFENDANT

For the Plaintiffs: Ms Taoing Taoaba
For the 1st Defendant: Mr Birimaka Tekanene
For the 2nd Defendant: Mr Banuera Berina

Dates of Hearing: 3 August 2010

JUDGMENT

Claims by the plaintiffs against the Attorney General (iro Commissioner of Police) and David Pine t/a Mauri Marine Exports.

The plaintiffs were members of the crew of the vessel "Wellbeing No. 3" when it was wrongfully seized by the Police at Kiritimati Island on 15 February 2006. The plaintiffs were left stranded on Kiritimati and have not been paid their wages for the voyage from Tarawa.

Counsel have agreed that I should first decide the preliminary point raised by Mr Tekanene that the claims against his client are res judicata: if the plaintiffs have claims they are only against the other defendant, David Pine, their employer. Paragraph 7 of the Amended Defence of the first defendant:-

7. Paragraph 14, is denied and it is averred that matter has been decided in the Court of Appeal where damages was awarded to the Second Defendants for his loss as the result of the seizure of his vessel (Wellbeing No. 3), that the plaintiffs were contracted to operate. Therefore the First Defendant pleaded the principle of res judicata.

In light of the above, it is averred that the first defendant should not indemnify the second defendant.

Mr Tekanene agreed that his argument could be summed up:-

"The Attorney General settled his liability to Pine: Pine should now pay these people out of his own pocket".

In my judgment in HCCC 70/07, delivered on 2 March 2009 Mr Pine's claim is set out (at page 2):-

1. Damages in the sum of $1,425,140.0 made up of:

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

No claims relating to the members of the crew, the present plaintiffs.

Mr Tekanene submitted that Mr Pine should have included their claims with his claims. Yet Mr Pine was under no obligation to do that. Even if he were it would be most unjust now to say to these plaintiffs, "Bad luck. Your claims should have been made with Pine's".

The plaintiffs should not be robbed of their claims now because another did not include their claims with his in earlier proceedings. Aside from that conclusion the fact is that no adjudication has ever been on the plaintiffs' claims.

In his written submission Mr Tekanene has argued:-

4. Legal Relationship with the Plaintiffs;

1. The plaintiffs are not employed by the first defendant therefore, there is no legal relationship between the two parties as to enable the plaintiffs to file suits against the first defendant.
   
2. In other words, the plaintiffs claim shall rest with their employer.
   

The submission is misconceived. This is not contract but tort. Mr Tekanene's client was the tort feasor. The plaintiffs alleged they have suffered damages as a result of his tort and should be compensated. Their claims are separate from Mr Pine's claim. The principle of res judicata does not apply.

Strictly, as a matter of procedure, perhaps the plaintiffs should have sued only their employer, Mr Pine, leaving it to him to join as a third party the Attorney General, claiming indemnity. Instead the plaintiffs sued both the Attorney General and Mr Pine. The defendants should have exchanged Contribution Notices (O 18 r11). Even though they did not the Court will not allow irregularities in procedure to rob the plaintiffs of their claims.

The first defendant's defence of res judicata fails.

Dated the day of August 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice