Kiribati Port Authority v Attorney General iro Registrar of Industrial Relations [2011] KIHC 52; Civil Case 113 of 2011 (23 September 2011)

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

HIGH COURT CIVIL CASE 113 OF 2011

BETWEEN:

KIRIBATI PORTS AUTHORITY
APPLICANT

AND:

THE ATTORNEY GENERAL
iro REGISTRAR OF INDUSTRIAL RELATIONS
RESPONDENT

FOR APPLICANT: MICHAEL TAKABWEBWE
FOR RESPONDENT: ERETA BRUCE
Date of Hearing: 23 September 2011

JUDGMENT

This is an application to seek the following relief or Orders from the Court;

1. An Order of injunction to restrain the Registrar of Industrial Relations from referring the trade dispute between the KPA and the BPSU to a sole arbitrator,
   
2. An Order of injunction to restrain the sole arbitrator referred to above from carrying out or performing his functions or exercising his powers as sole arbitrator from dealing or settling trade dispute referred to him by the Registrar,
   
3. In the alternative a declaration that a referral by the registrar of such trade dispute between the KPA and the BPSU to a sole arbitrator is irregular as is in breach of the requirement of the Code and therefore invalid.
   

Ground of application

The sole ground of this application is that the referral of the trade dispute by the Registrar to the sole arbitrator is made in breach of the section 12A (a), (b), (c) and (d) of the Industrial Relations code.

Legislation

Industrial Relations Code 1997
The High Court (Civil Procedure) Rules, 1964

Cases referred to

Thompson v Eaton [1976] UKEAT 24_76_1404; [1976] I.C.R. 336
Speaker v Attorney-General [1987] KIHC1; LRC (Const) 1 (8 July 1987)

Case Background

Sometimes in 2010 a trade dispute between the Betio Port Stevedore Union and its employer the Kiribati Port Authority (the applicant) was reported to the Registrar of Industrial Relations, Mr Tebao Awerika. In his many efforts to settle this dispute the Registrar referred it to a sole arbitrator. The sole arbitrator proceeded with arbitration and made his decision.

Before I proceed with my judgment I would like to comment on the nature of the application. I note that the application was commenced by a Notice of Motion. It appears to be no substantive action filed in this case. Although it is not raised in argument by the parties care ought to have been taken in filing an action and that Order 2 (1) and Order 58 of The High Court (Civil Procedure Rules), 1964 should be considered in matters like this. Though I commented on this it will not affect my decision.

The Injunctions sought

Counsel for respondent argues that the injunctions sought are not applicable in this case as they are a dead issue. Counsel for applicant submitted that this maybe so but still an injunction is needed to prevent future actions of the Registrar and the sole arbitrator from dealing with the matter.

After considering both arguments I found that an injunction would not be relevant to this case and the respondent is quite right in saying that they are dead issues as the actions had been carried out. The Registrar had already referred the trade dispute to the sole arbitrator. The sole arbitrator had already completed his task in this arbitration process. His decision had been delivered and published.

Order 53(6) states as follows;

"The Court may grant a mandamus or an injunction or appoint a receiver by an interlocutory order in all cases in which it appears to the Court to be just or convenient so to do."

On the basis of the above rule I found that it is not just or convenient to grant an injunction in this case.

The Declaration

Counsel for the respondent further argues that it would also not proper for this Court to issue a declaration sought as it is also a dead issue, that is, a referral had been made. A case of the Speaker v Attorney-General [1987] KIHC1; LRC (Const) 1 (8 July 1987) was raised as supporting authority of this.

After reading this case I found that there are certain principles followed by that Court to guide it in exercising its discretion to grant a declaration. The principles are as follows;

(a) That a declaration will not be awarded to a plaintiff or on an applicant who is unable to show that he is engaged with another party in a controversy in which his legal recognized interests are directly affected;

(b) That the Court will not make a declaratory judgment, unless all the parties interested are before it;

(c) That the Court will not make a declaratory judgment where the question is a dead issue.

Taking into account the above principles I found that I could not make a declaratory judgment. Not all parties interested in this matter are before the Court. The Betio Port Stevedore Union (BPSU) was not a party in this case. The applicant should have made them a party. The dispute in question is their dispute. Their right and interest are going to be affected by this declaration should the Court grants it. Although this point was not raised and argued by parties it is a very important point to consider by the Court in determining whether it should exercise its discretion to grant a declaration.

A dead issue was the only principle raised and argued by both parties. Counsel for the applicant was saying that the case of Speaker v Attorney-General [1987] KIHC1; LRC (Const) 1 (8 July 1987) and the principles in it are not relevant to the case before us as the fact involved a Constitutional matter. Thus the principle on a dead issue is not applicable.

I found that the applicant's argument on the distinction of facts is true but the principles in regards to the Court's discretion to grant a declaration are applicable to this case before us. Therefore a dead issue principle is also applicable here. The referral of the trade dispute to a sole arbitrator had been made and decision had also been out and published. There is no point in granting this declaration now. (At this point in time a request for an Order of certiorari would be more appropriate.)

Having said the above points I found that this should be the end of the matter. The question of whether the Registrar's referral of the trade dispute to the sole arbitrator is lawful or otherwise will not be considered. There is no point in considering it when I have decided not to grant the reliefs sought.

Final Orders of the Court

An application to seek the following reliefs:

1. An Order of injunction to restrain the Registrar appointed under section 4 of the Industrial Relations 1997 (the Code) from referring the trade dispute between the KPA and the BPSU reported to him under section 7 of the Code, to a sole arbitrator appointed under section 12(a of the Code under an instrument of appointment dated 16th June 2011 is not granted,
   
2. An Order of injunction to restrain the sole arbitrator referred to in paragraph 1 above from carrying out or performing his functions or exercising his powers as sole arbitrator from dealing or settling trade dispute referred to him by the Registrar under paragraph 1 above is also not granted,
   
3. In the alternative a declaration that a referral by the registrar of such trade dispute between the KPA and the BPSU to a sole arbitrator is irregular as is in breach of the requirement of the Code and therefore invalid is also not granted.
   

As both parties are Government bodies, being that the KPA is a government owned entity, I make no order as to costs.

Dated 28th September 2011.

TETIRO M SEMILOTA
COMMISSIONER