Katarake v Attorney General iro Kiribati Poice Force [2015] KIHC 22; Miscellaneous Application 26.2015 (18 May 2015)

IN THE HIGH COURT OF KIRIBATI 2015

MISCELLANEOUS APPLICATION NO. 26 of 2015
CIVIL CASE NO. 20 OF 2015

BETWEEN:

BWEBWETAAKE KATARAKE
PLAINTIFF

AND

ATTORNEY-GENERAL iro THE KIRIBATI
POLICE FORCE
DEFENDANT

Before: The Hon Chief Justice Sir John Muria

18 May 2015

Mr Banuera Berina for Plaintiff

Mr Birimaka Tekanene for Defendant

JUDGMENT

Muria, CJ: The plaintiff issued a writ claiming the payment of his salary for period from 2010 to 2015, the particulars of which were set out in his Statement of Claim in this case. The defendant has applied to the Court to strike out the plaintiff's present case on the grounds that the case is misconceived, abuse of process, has no prospect of succeeding and is frivolous and vexatious. The defendant also relies on section 6(2) of the Government Liability Act as barring the plaintiff's claim.

BRIEF BACKGROUND

Briefly the background of the plaintiff's case stems from High Court Civil Case 54/13. In that case, the plaintiff successfully took out judicial review proceedings against his dismissal as a Police Constable in the Police Service. The Court declared that the plaintiff's dismissal was unlawful and that the plaintiff must be taken to be still in employment but a suspension on full pay until the disciplinary charges against him are lawfully dealt with under the disciplinary procedures laid down in the Police Service Act.

Despite the declarations made in Civil Case No. 54/13, the plaintiff's salary had not been paid to him. He now brings these proceedings in this case, High Court Civil Case 20/15 claiming his salary payable to him in the sum of $21,555.00 and continuing and general damages.

The basis of the defendant's application is that it is an abuse of process of the Court for the plaintiff to bring a new case to enforce the judgment of the Court in Civil Case No. 54/13. It is argued by the learned Solicitor General that the plaintiff should simply take out enforcement proceedings under the same case, HCCC 54/13.

Mr Berina of Counsel for the plaintiff, in response, argued that in
HCCC 54/13, the plaintiff took out judicial review proceedings, seeking declaratory orders. In the present case, HCCC 20/15, the plaintiff took out a writ claiming unpaid salary which is a different cause of action to that in
HCCC 54/13.

In the Court's view, the argument by Mr Berina must be correct. The nature of the proceedings in HCCC 54/13 were completely different to those in HCCC 20/15. In the former case, the plaintiff sought judicial review against the decisions of persons or bodies conducting disciplinary proceedings against him and asked for declarations on the lawfulness or unlawfulness of actions of those persons or bodies. The Court declared that the plaintiff's disciplinary proceedings were unlawful, thereby declaring also the plaintiff is effectively still in employment and entitled to his salary to be paid to him in full.

The nature of the action or the plaintiff's claim in the present case is different. He has not been paid his entitlement (salary) since the conclusion of HCCC 54/13 and so he issued a writ in the present case, claiming his salary, setting out the actual amounts due to him. By any stretch of imagination the nature of the claim in the present case can hardly be the same as that in HCCC 54/13. It is a different cause of action altogether.

Thus the argument by the defendant that the plaintiff's claim in the present case discloses no cause of action cannot succeed here, and so also is the defendant's argument that the plaintiff is bringing the same claim in the present case.

The defendant's argument, on the res judicata point, has no application in this case. It is true that the parties and HCCC 54/13 and this case, HCCC 20/15 are the same. The nature of the claim and so the cause of action are, however, very different as I have already pointed out.

The learned Solicitor General contended that it would be difficult for the defendant to draft a Defence to the plaintiff's claim in the present case because the claim is based on a judgment of the Court in HCCC 54/13. I do not accept the defendant's argument that the drafting of the Defence would be difficult because the plaintiff's claim is based on the Court's judgment. The Court in HCCC 54/13 simply declared the plaintiff's entitlement under his employment because his dismissal was unlawful. There may be good reasons why an employee may not be paid his salary in full or in part, although he is entitled to it.

With regard to the argument based on section 6(2) of the Government Liability Act, all that I can say on this argument at this stage is that it cannot be used in an application such as the present one to prevent the plaintiff from bringing his claim against the defendant. If the defendant wishes to rely on section 6(2) of the said Act, the proper place to raise that is in the Defence where it will have to be established. The liability of the defendant is an issue to be properly ascertained at the trial and not in the present application.

For all the above reasons, the defendant's application is refused.

Costs in the cause.

Dated the 20th day of May 2015

SIR JOHN MURIA
Chief Justice