Bwenawa v Tuuneti [2020] KIHC 26; Miscellaneous Application 52 of 2020 (13 October 2020)

IN THE HIGH COURT OF KIRIBATI 2020

MISCELLANEOUS APPLICATION NO 52 OF 2020
(ARISING FROM HIGH COURT CIVIL CASE NO. 62 OF 2018)

[TEITI BWENAWA for and on behalf of
[HERSELF AND ALL OF HAUEIA JOSEPH RAEMON’S
[SURVIVING DEPENDENTS APPLICANT
[
BETWEEN [AND
[
[DR KABIRI TUUNETI, DR KANONG TEKOREAUA
[AND THE ATTORNEY-GENERAL in respect of
[THE MINISTRY OF HEALTH & MEDICAL SERVICES RESPONDENT

Before: The Hon Chief Justice Sir John Muria

26 May 2020

Ms Bitarana Yeeting for Applicant/Defendant
Ms Botika Maitinnara for Respondent/Plaintiff

JUDGMENT

Muria, CJ: This is an application to set aside default judgment entered against the defendant Attorney-General in respect of the Ministry of Health and Medical Services. Although the Writ of Summons named Dr Kabiri Tuune and
Dr Kanong Tekoreaua together with the Attorney-General as defendants, the action is clearly brought against the Government (Ministry of Health and Medical Services) represented by the Attorney-General.

2. The plaintiff’s claim was brought following the death of one Haueia Joseph (Deceased) who died on 2 September 2017 at the Nawerewere Hospital, Tarawa. The deceased was first admitted at the Hospital on 12 August 2017 following a complaint of pain in the stomach. He was diagnosed with diabetic meltitus.

3. On 13 August 2017, an operation to the deceased’s appendix was performed by the doctors. The deceased was discharged on 18 August 2017. On 23 August 2017, the deceased attended a surgical clinic followed by his
re-admission at the Hospital on 31 August 2017 due to high fever and unconsciousness. The deceased died on 2 September 2017.

4. The plaintiff brought the action alleging negligence on the part of the employees of the defendant. The plaintiff claims damages pursuant to sections 1 and 2 of the Fatal Accidents Act 1846-1959 Act (UK) and also pursuant to the Law Reform (Miscellaneous Provisions) Act 1937 (UK). Both UK statutes are applicable to Kiribati: Tenubobo –v- Mawanei [2017] KICA 13; civil Appeal 4 of 2017 (16 August 2017).

5. In the course of arguments, Counsel for the applicant raised a number of points. It was argued on behalf of the applicant/defendant that the plaintiff/respondent had not complied with O.29 r14 of the High Court (Civil Procedure) Rules by not seeking leave of the Court before entering judgment in default against the defendant. Counsel also raised the point of lack of service of the Writ on the defendant. In addition, Counsel argued that the Writ had expired and that the plaintiff has no standing to bring the claim against the defendant in the present case.

6. In the context of the present application, I feel that I need only deal with the non-compliance of O.29 r14 of the High Court (Civil Procedure) Rules which requires leave of the court to be obtained before judgment in default can be entered against the Republic. That rule clearly provides that:

“r14. In proceedings against the Crown no judgment for the plaintiff shall be entered in default of pleading without the leave of the Court, and any application for such leave shall be made by notice of motion or summons served not less than seven days before the return day”.

7. On the evidence before the Court, and not disputed by the respondent/plaintiff, no leave had been sought and granted by the Court for the plaintiff to enter judgment in default against the Republic in this case. That must obviously result in the setting aside of the default judgment entered against the defendant on 24 October 2019. Non-compliance with O.29 r14 obliges the Court to set aside a default judgment entered against the Republic.

8. The other issue which I need also dispose of briefly is the issue of service on the defendant. The evidence of Teiti Bwenawa shows that the “Writ of Summons dated the 14^th September 2018” was served on the Officer in Charge, namely Tiinia Matatia, of Ministry of Health and Medical Services on
13 September 2019. That was in my view proper service on the defendant Ministry. It is a matter for the Ministry of Health and Medical Services to communicate with their legal adviser (Attorney-General) and to give necessary instructions as to what to do next. If the Ministry of Health and Medical Services fails to take the necessary steps to respond to the plaintiff’s claim, they cannot come to Court and be heard to say that they had not passed on the Writ of Summons to the Attorney-General’s Office. The argument on the lack of service is rejected.

9. I do not think I need to deal with the two other points on the expiry of the Writ of Summons and locus standi of the plaintiff to bring the action raised by the applicant/defendant in this application. They are matters for defence and can be dealt with after defence is filed or at the trial.

10. The defendant’s application for setting aside the default judgment dated 24 October 2019 is granted. The defendant shall have 14 days to file defence. Liberty is granted to the plaintiff to apply should the defendants fail to file their defence within the time stated.

11. As I have pointed out earlier, the two doctors, Dr Kabiri Tuuneti and
Dr Kanong Tekoreaua, are named in the action. The default judgment which is now set aside was effectively entered against the Attorney-General (Ministry of Health and Medical Services). It would be preferable if the two doctors have separate legal representation in this action since the plaintiff is alleging negligence on the part of “the employees of the defendant” which expression must include the two named doctors.

12. ORDER: (1) The Judgment in default against the defendants dated 24 October 2019 is set aside.

(2) The defendants have 14 days from the date hereof to file defence.

(3) Liberty to the plaintiff to apply.

Dated the 13^th day of October 2020

SIR JOHN MURIA
Chief Justice