WKK Shipping Services v Ministry of Communication, Transport and Tourism Development [2012] KIHC 3; Civil Case 176 of 2007 (24 February 2012)

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: 31 January & 2 February 2012

JUDGMENT

This is a bill of cost case by the applicant following his success in his original action against the respondent in August 2010. In November 2011 I gave judgment that the applicant is entitled to this cost following argument from the respondent that he is not, basing their argument on their interpretation of the Court of Appeal judgment when this case went on appeal.

On the 31 January and 2 February 2012 the hearing on the Bill of Cost took place. The Court went through item by item with both counsels. The Bill consisted of eight (8) items; five(5) international trips and three (3) other related cost. The total amount claimed in the Bill of Cost is $33,035.83. I shall now consider the Bill item by item.

Item 1:

Lawyer's trip to Kiribati on 21-27 October 2009. Total amount claimed is $1698.90 (airfare, accommodation, transport, meal).

The plaintiff submitted that the lawyer arrived two weeks before the hearing date so she could have enough time to prepare for her case and admission. That was their original plan. However, the lawyer stayed for one week only, that she had to go back to Fiji when the hearing was postponed to 7 December 2009.

Counsel for the defendant argued that this trip could have been avoided had the plaintiff's lawyer arrived on the 4 November 2009, a week before the scheduled date. The plaintiff knew of the change in hearing date on 23 October 2009, but his lawyer was already in Kiribati by that time. Defendant argued that the plaintiff's lawyer came too early. Had she planned to come on the 4 November she could have known about the change in date while she is still in Fiji and she could have avoided this trip. Counsel further submitted that the plaintiff's lawyer do not need two weeks in Kiribati for her preparation, one week is enough, like what she did in her second visit.

I disagree with this argument. It was not the fault of the plaintiff that the hearing date was changed. The lawyer arrived two weeks before the scheduled hearing date because she believed she needed that time to arrange for her admission and to prepare for her trial. She also did the right thing in returning to Fiji on the first available flight. Had she stayed till December the cost would have been more than this.

Airfare claimed is $973.90. Defendant disputed this amount as the invoices first submitted were not clear. However, during the hearing the plaintiff managed to provide more satisfactory evidence by tendering Ms Elizabeth Baraniko's sworn affidavit. Ms Baraniko is a Manager of Tobaraoi Travel Agent who gave evidence regarding the airfare. Exhibit BT.1, BT.1(a) and BT.2, BT.2(a) showed a total amount of $973.90 being paid for by the plaintiff for Ms Prem Narayan's ticket. This confirmed the airfare claimed, there should be no more query about this.

Accommodation claimed is $375.00. Defendant did not dispute this amount.

Transport claimed is $250.00. Defendant argued that since the lawyer was staying at the Betio Apartment transport is not necessary as the Apartment is closed to the Court. Instead they submitted that $200 is a reasonable amount for four days only, that is, two days for trial and two days for picking and dropping the lawyer at the airport.

I do not agree with this argument. The lawyer was entitled to have transport for the full week she was here. The defendant has spent $250 for their lawyer's transportation, he should be reimbursed.

For meal the plaintiff claimed $100, $20 per day. Defendant disputed this amount but I believe this is reasonable amount.

Item 2:

Lawyer's trip to Kiribati on 2-9 December 2009 to attend hearing. Total amount claimed is $1988.00 (airfare, accommodation, transport, meal).

Counsel for the defendant did not dispute this trip, therefore airfare of $973.90 is accepted. Accommodation is also accepted at $525.00. Defendant only disputed the meal and transport expenses. Counsel's argument was the same as in item 1 above. My decision would be the same as well as in Item 1 above. The defendant has spent $350 for their lawyer's transportation and $140 for meal, he should be reimbursed.

Item 3:

Lawyer's travel to Kiribati on 27 July – 1 August 2010, for assessment of liability and damages. Total amount claimed is $21, 677.56 (airfare, accommodation, meal, transport, lawyer's fee).
Counsel for the defendant did not dispute this trip, likewise airfare of $1006.50 is accepted. Transport of $150 is also accepted by defendant. Defendant only disputed the accommodation and meal expenses. Counsel argued that the meal on 1 August 2010 which charged at $39.00 was too much compared to the $6 and $7 for the other days. Counsel for plaintiff cannot really explain this amount, I will therefore allow $20 only as a reasonable amount for meal for this day.

Counsel for defendant also argued that the accommodation expenses for 29/7/10 to 1/8/10 was $20 more than the accommodation expenses for 27-28 August. They would not accept this. No explanation from plaintiff's counsel. However, having been satisfied that this amount was reflected in the Otintaai Hotel's invoice and was paid for by the plaintiff, I will allow for the full claim of $500.00.

Therefore for accommodation and meal, I allow the amount of $631.30.

Airport tax is $60, that is $20 per trip. No dispute from the defendant.

The lawyer's fee is $19,660.76. Counsel for defendant argued that the amount should be $11,605.07 assuming that the charge was in Fijian currency. Counsel for plaintiff referred us to the invoice which clearly stated AU beside the figure, meaning the amount is in Australian dollars. After seeing this, Counsel for defendant accepted the amount.

Item 4:

Plaintiff's trip to Australia to look for a replacement vessel. The trip was from 21/1/2010 to 6/3/2010. Total amount claimed is $3805.54 (airfare, accommodation, meal).

Defendant disputed this trip. Their argument is that this trip has been covered for by the Court of Appeal. At paragraph 6 of the Court of Appeal decision, it reads as follows:

"The Chief Justice accepted that a replacement vessel was not available to replace the MV South Sea Mana in Kiribati. It was reasonable to allow $100,000 as the cost of the respondent and his crew travelling to Australia to bring back a replacement vessel. Clearly no replacement vessel would have been available in Kiribati. Thus replacement costs are likely to be part of the loss suffered from the loss of the vessel. There is no reason to disturb this assessment."

I agree with the defendant's argument. $100,000 has been awarded to the plaintiff to cover the cost of the respondent and his crew travelling to Australia to bring back a replacement vessel. I take this to mean that it includes the cost of the plaintiff's trip to Australia to look for a similar size vessel.

Item 5:

The plaintiff's travel to Fiji to meet up with his lawyer for their preparation for their case. The trip took place on 27 April to 10 June 2010. Total claim is $2,972.00 (airfare, accommodation, transport).

Counsel for defendant argued that the trip was not necessary. They had the time when the lawyer arrived in Kiribati for the assessment hearing. The plaintiff did not need to go to Fiji for this purpose.

Counsel for the plaintiff argued strongly that the trip was necessary because there were so many documents to be taken to the lawyer for discussion.

I do not agree with them. The defendant is quite right in saying that both the plaintiff and his lawyer had the time to discuss these documents a week before the assessment hearing.

Other related costs:

All items under this heading are not disputed. They are as follows;

Court Order dated 10 December 2009-	$500.00
Notice of Motion fee-	$10.00
Filing fee-	$50.00

Therefore total amount awarded is $25736.36. The breakdown is as follows;
Item 1:

Airfare	$973.90
Accommodation	$375.00
Transport	$250.00
Meal	$100.00

Item 2:

Airfare	$973.90
Accommodation	$525.00
Transport	$350.00
Meals	$140.00

Item 3:

Airfare	$1006.50
Accommodation/meal	$631.30
Transport	$150.00
Tax	$40.00
Lawyer's fee	$19,660.76

Item 4: Not accepted
Item 5: Not accepted

Other related costs:

Court Order 10 Dec 2009	$500.00
Notice of Motion	$10.00
Filing Fee	$50.00

Dated 24 February 2012.

TETIRO M SEMILOTA
COMMISSIONER OF THE HIGH COURT