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Tekaieti v Office of the Attorney General [2025] KIHC 121; Miscellaneous Application 06769 (18 August 2025)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
(South Tarawa)

MISCELLANEOUS APPLICATION: 2025-06769

In the matter between:

ALICE TEKAIETI Applicant

And

OFFICE OF THE ATTORNEY GENERAL Respondent
iro Ministry of Health and Medical Services

Date of Hearing: 12 August 2025

Counsels: Ms. Taotere Korimara for the Applicant
Ms. Famelea Joan Awerika for the Respondent

RULING

AMTEN, J. – The only matter in dispute is cost, which is asked for by the respondent and which the applicant opposed.

The applicant initiated a writ of summons against the respondent in HCCiv Case 2025-04396. The High Court’s registry acknowledged receipt of the writ on 7th May 2025. On 2nd June 2025, the Office of the Attorney General, represented by counsel Ms. Awerika, entered an appearance for the respondent. By the 13th of that month, a statement of defence was submitted and received by the Court on the same day. On 9th July 2025, the applicant submitted a Notice of Motion in accordance with Order 29 Rule 14, seeking leave to obtain a default judgment against the respondent for their failure to file a defence. In response, on 31st July 2025, the respondent filed a Notice of Motion under Order 29 Rule 12. Subsequently, on 1st August 2025, the applicant filed another Motion in accordance with Order 28 Rule 1, requesting the discontinuation of its earlier Motion for a default judgment.

The respondent did not oppose the application for the discontinuance of the initial Motion; however, she contended that cost should be awarded to them. She maintained that as legal counsels, their primary responsibility is to perform due diligence to confirm that no defense has indeed been filed. The applicant ought to verify with the Court’s registry prior to presuming that there was no statement of defense. She claimed that the applicant's counsel had failed to exercise due diligence and consequently had taken an erroneous course of action. Had she conducted this verification, she would have discovered the statement of defense that was filed on the 31st of July. Due to her oversight, they are now inconvenienced; they must submit a response to the application which they had prepared, only to be informed of the intention to discontinue the application.

The applicant's counsel responded by stating that she had indeed verified with the Court’s registry that no defense was on record before submitting the Motion for default. She further asserted that the respondent's counsel has a corresponding obligation to notify her at the very least that she had submitted her statement of defense. Had this notification occurred, the application to discontinue would have been submitted sooner, or there would have been no necessity to file for a default initially. She emphasized to this Court that counsels have a mutual obligation to one another, if not a matter of courtesy.

The foundation of the respondent's argument was straightforward; it asserted that the applicant's counsel failed to perform her due diligence, leading to suffering for both her and her client. They have made significant efforts in their preparations, only to be notified of the discontinuance.

I acknowledge the arguments presented by the respondent's counsel, yet the fundamental issue remains: who bears the responsibility in this situation? Is it the applicant for failing to exercise due diligence, or could the fault stem from another source? Alternatively, might the responsibility lie with the respondent's counsel for not informing the applicant's counsel that a statement of defence had been filed? As the applicant's counsel clarified, this misunderstanding (or fault) originated from the Court's registry. She did verify with the registry and was informed that no statement of defence had been submitted. Acting on this information, she proceeded to file her Motion. Nevertheless, once she became aware of the statement of defence, she promptly submitted another Motion to withdraw her initial Motion.

I express my sympathy for the respondent's counsel; however, I must agree with the applicant's counsel. The issue occurred due to the inadequate management of the court's registry. Consequently, it would be unjust for the applicant to bear the blame. Should there be any costs incurred, they ought to be the responsibility of the court, not the applicant.
In the above premises, and in the exercise of my discretion, cost is denied.

Dated this 18^th August 2025.

.................................
HON. AOMORO T. AMTEN

JUDGE