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Central Pacific Producers Ltd v Favae [2016] KICA 9; Civil Appeal 1 of 2016 (17 August 2016)

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

Civil Appeal No. 1 of 2016

BETWEEN

CENTRAL PACIFIC PRODUCERS LTD
APPELLANT

AND

TEKARIKA FAVAE
RESPONDENT

Before:
Blanchard JA
Handley JA
Hansen JA

Counsel:
Botika Maitinnara for appellant
Raweita Beniata for respondent

Date of Hearing: 12 August 2016
Date of Judgment: 17 August 2016

JUDGMENT OF THE COURT

[1] The respondent was employed by the appellant as a Second Mate and Store Controller on one of its vessels. In 2005 the appellant suspended him and, subsequently, purported to dismiss him. The respondent claimed in the High Court for declarations that the suspension and/or dismissal were wrongful and unjustified and for unpaid wages and damages.

[2] The appellant did not appear on the day fixed for the hearing of the claim. After hearing the evidence of the respondent and considering written submissions filed later, Muria CJ gave judgment for the respondent on liability. He determined that the respondent was entitled to one month’s salary in lieu of notice and additional damages for the period 24 October 2005 to 31 December 2008 to be agreed by the parties.

[3] The appellant appealed out of time against the judgment.
Ms Maitinnara submitted that hearing the claim in the absence of the appellant was a breach of natural justice. Alternatively she argued that, even if the respondent’s dismissal had been unlawful, he was entitled to no more than one month’s salary in lieu of notice and the Chief Justice had erred in awarding him additional damages.

[4] After hearing from counsel, without opposition from the respondent we granted leave to bring the appeal out of time and dismissed the appeal. We were satisfied that an appeal to this Court was not the appropriate remedy for the appellant.

[5] In an affidavit filed in support of the appeal an employee of the appellant’s lawyer explained that she had failed to pass on to counsel a letter giving notice of the hearing. Ms Maitinnara confirmed that she was unaware of the date of hearing. Another affidavit filed in support of the appeal by the Operations Manager of the appellant, provides evidence to support the appellant’s contention that the respondent was not unlawfully suspended or dismissed.

[6] In cases such as this, where a case is decided in the absence of a party who seeks to impugn the decision and explain their
non-appearance, the remedy is to apply to the trial Court to set aside the decision and for a rehearing. The trial Court is in the best position to decide whether the failure to appear should be excused and, if so, on what terms. A rehearing would, in any event, take place in the trial Court. This Court’s function is not to make findings of fact (as it is being asked to do for the purpose of this appeal) but to correct error. Its role in cases such as this is, if required, to review the decision of the High Court in relation to the application for rehearing and any rehearing of the substantive proceeding that may follow.

[7] For these reasons we dismissed the appeal. The appellant is to pay the costs of the appeal agreed at $500.

____________________________

Blanchard JA

____________________________

Handley JA

____________________________

Hansen JA