Kiribati Ports Authority v Dojin Co Ltd [2017] KIHC 33; Miscellaneous Application 62 of 2017 (25 September 2017)

IN THE HIGH COURT OF KIRIBATI 2017

MISCELLANEOUS APPLICATION NO. 62 OF 2017
(ARISING OUT OF CIVIL CASE NO. 62 OF 2015)

[KIRIBATI PORTS AUTHORITY Plaintiff
[
BETWEEN [AND
[
[DOJIN COMPANY LTD Defendant

Before: The Hon Chief Justice Sir John Muria

22 September 2017

Ms Elsie Karakaua for Plaintiff
Mr Banuera Berina Defendant

RULING

Muria, CJ: The plaintiff/applicant has applied to this Court to set aside its order made on 4 May 2017 permitting the defendant/respondent to further amend its Defence and Counter-claim in this action. The order was made on Paper without the need to hear both parties.

There have been a number of amendments to the pleadings in this case, both on the part of the plaintiff as well as the defendant. Nothing has come about, in terms of objections, to all the previous amendments to the plaintiff’s Statement of Claim and the defendant’s Defence. The plaintiff’s complaints in this application are that they were not served with notice of application and that the granted amendment effectively increased the defendant’s counter-claim to $1,034,712.59 without giving the plaintiff the opportunity to have a say on such a drastic effect of a counter-claim.

Ms Karakaua relied on O.23 r.14 of the High Court (Civil Procedure) Rules. Counsel suggested that, if given the opportunity, the plaintiff could have objected to the amendment relying on O.23 r.14 to exclude the further amendment.

I do not think that issue now concerns the merit of whether the further amendment should be granted or not. The only issue to decide in this application is whether or not the order granting the further amendment of the defence and counter-claim should be set aside.

As both parties are represented by Counsel, the practice of service, through the lawyers’ “pigeon hole” has been adopted. The Court assumed that service of the Notice of Motion filed by the defendant had been served on the plaintiff through Counsel’s pigeon hole at the Court Registry. It now appears that no service had been effected on the plaintiff or Counsel.

There has been no affidavit of service filed by the defendant that it had served the plaintiff, through its Counsel’s pigeon hole, with the Notice of Motion dated 28 April 2017. Had there been service made on the plaintiff, or its Counsel, the plaintiff would have a hard row to hoe in the present application.

In the interest of justice, the court will exercise its discretion to set aside its order made on 4 May 2017 and fix a re-hearing of the defendant’s application.

The defendant’s application for further amendment of its defence and
counter-claim dated 28 April 2017 is now fixed for 2 October 2017.

ORDER: 1. The order of the Court dated 4 May 2017 granting leave to the defendant to further amend its defence and
counter-claim is set aside.

2. The defendant’s application dated 28 April 2017 seeking leave for further amendment of its defence and
counter-claim is to be listed for re-hearing on 2 October 2017 with notice to both parties now given.

3. Each party to bear its own costs of today’s hearing.

Dated the 25^th day of September 2017

SIR JOHN MURIA
Chief Justice