WKK Shipping Services v Attorney General iro Ministry of Communication, Transport and Tourism Development - Order [2011] KIHC 55; Civil Case 176 of 2007 (4 November 2011)

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

HIGH COURT CIVIL CASE 176 OF 2007

BETWEEN:

WAYSANG KUM KEE t/a WKK SHIPPING SERVICES
APPLICANT

AND:

ATTORNEY GENERAL iro MINISTRY OF COMMUNICATION
TRANSPORT AND TOURISM DEVELOPMENT
RESPONDENT

FOR APPLICANT: BATITEA TEKANITO
FOR RESPONDENT: ERETA BRUCE
Date of Hearing: 4 NOVEMBER 2011

ORDER
Ex Tempore

The issue before this Court is as follows:

'Whether or not the applicant is still entitled to the Cost awarded to him by the High Court on 2nd August 2010'

Ms Bruce's argument is that they are not entitled to this Cost. The Order on Cost was a High Court order. The case was brought on appeal to the Court of Appeal. At the end of the appeal the Court of Appeal judges made a decision regarding cost in the following manner;

"As the appeal has succeeded in part and failed in part, we make no order as to costs."

Ms Bruce argues that this decision relates also to the cost of the High Court proceedings.

She also raises the principle of res judicata in saying that the applicant had omitted to raise the issue of Cost before the Court of the Appeal, therefore they are not entitled to raise it now. A case of Henderson v Henderson [1843] EngR 917; 3 Hare 100 is raised as supporting authority of this argument.

Ms Tekanito, counsel for the applicant, argues otherwise. She submits that her client is still entitled to this cost. She bases her argument on the principle that cost follows the event. The High Court awarded her client cost before the case was brought on appeal. The Court of Appeal's order regarding cost was only related to the Court of Appeal proceedings. The issue of cost from the High Court was never raised and discussed in the Court of Appeal.

After considering arguments from both sides I decided that the applicant is still entitled to this cost. Three reasons for this;

- Court of Appeal's decision on cost is only related to the Court of Appeal proceedings.
- The principle of res judicata is not applicable in this case as the applicant is not obliged to raise this matter to the Court of Appeal.
- The principle that cost follows the event is certainly applicable here. The applicant had won his case in the High Court and therefore he is entitled to cost following that event.

I will now give time for Counsels to consider the items in the Bill of Cost. Submissions to be heard on Friday, 18 November 2011, at 2 pm.

TETIRO M SEMILOTA
COMMISSIONER