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Tiito v Attorney General [2025] KIHC 97; Miscellaneous Application 08410 of 2025 (19 December 2025)

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

MISCELLANEOUS APPLICATION # 2025-08410
(Arising out of HCCiv. Case # 2024 03044)

In the matter between:

Atita Tiito
(Rep. by Taunteang Bira & Tiito Bira) Applicant

And

Attorney General Respondent
(in respect of Onotoa Island Council)

Counsel: Ms. Taotere Korimara for the Applicant

Mr. Tairake Ioane for the Respondent

RULING ON NOTICE OF MOTION

I. Introduction

1. This ruling concerns the applicant’s Notice of Motion dated 13 October 2025, brought pursuant to Order 33 Rule 21 of the Western Pacific High Court (Civil Procedure) Rules 1964.
2. The applicant seeks to strike out the respondent’s defence for alleged non-compliance with Orders for Directions issued on 12 March 2025 and 13 August 2025. The applicant contends that the respondent’s repeated failure to comply amounts to willful disregard of the Court’s authority and justifies striking out the defence.
3. The respondent opposes the application, asserting that the non-compliance was neither willful nor deliberate, and that striking out would be disproportionate.
4. Against that background, the Court turns to the submissions advanced by counsel on either side.

II. Submissions of Counsels

5. For the Applicant:
   • Ms Taotere submitted that the respondent failed to comply with two successive Orders for Directions, despite clear timelines for discovery and affidavit evidence. Counsel argued that such conduct demonstrates contempt of court, prejudices the applicant’s estate, and warrants striking out the defence or, in the alternative, entry of summary judgment. Reliance was placed on Order 33 Rule 21 and comparative principles of procedural discipline.
6. For the Respondent:
   • Mr Tairake opposed the application, contending that the delays were attributable to change of counsel, transition of responsibility, and logistical difficulties in obtaining documents from ministries and an outer island client. Counsel emphasized that efforts were made to communicate with applicant’s counsel, that agreed facts and issues require bilateral cooperation, and that the matter remains within the 60-day window for trial listing. It was submitted that striking out is a draconian remedy, disproportionate to the circumstances, and that extension or further case management directions would suffice.
7. Having set out the competing submissions, the Court distills the matter to the central issue for determination.

III. Issue

8. The issue for determination is whether the respondent’s non-compliance with the Court’s Orders for Directions was willful and deliberate to justify striking out the defence under Order 33 Rule 21, or whether the circumstances warrant leniency and further case management directions.

IV. Legal Framework

9. To answer the question, the Court must first set out the legal framework that controls the exercise of discretion.
10. Order 33 Rule 21, Western Pacific High Court (Civil Procedure) Rules 1964 permits striking out for non-compliance. Comparative authorities provide guidance:
    • Denton v TH White Ltd [2014] EWCA Civ 906: established a three-stage test: (i) seriousness of breach, (ii) reasons for default, (iii) all circumstances of the case.
    • Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537: striking out is reserved for serious or contumacious breaches.
    • Johnson v Gore Wood & Co [2002] 2 AC 1: sanctions must not be applied mechanistically; fairness and proportionality are paramount.
    • Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146: case management rules must not override the fundamental right to a fair trial.
    • Leahy v OSB Group Ltd [2024] IEHC 346: reaffirmed proportionality; striking out is justified only for intentional non-compliance.
      

V. Deliberation and Consideration

11. With the framework established, the Court applies those principles to the facts of this case. Applying the Denton framework:

(i) Seriousness and Significance of the Breach

12. Ms Taotere, argued that the respondent failed to comply with two successive Orders for Directions, producing no discovery, affidavits, or agreed facts. She further argued that repeated defaults undermine the authority of the Court and prejudice the applicants.
13. Mr Tairake, acknowledged defaults but argued they are not irreparable. Discovery can still be produced, and the matter remains within the trial listing window.

The Law

• Denton v TH White Ltd [2014] EWCA Civ 906, the Court must assess seriousness of breach, reasons for default, and all circumstances.
• Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, sanctions, including striking out, are reserved for serious or contumacious breaches, especially where default undermines the authority of the Court or prejudices the administration of justice.

Application:

14. The Court finds that the breaches are serious, but seriousness alone does not compel the ultimate sanction. The respondent’s failure to comply with two successive Orders for Directions is troubling, but the absence of discovery and affidavits does not yet foreclose the possibility of a fair adjudication. The trial window remains open, and remedial compliance is still feasible.
15. Guided by Denton, seriousness must be assessed in context: here, the prejudice to the applicant is inconvenience and delay, not irretrievable loss of trial rights. Mitchell reminds that striking out is reserved for defaults that are both serious and contumacious, defaults that demonstrate defiance of the Court’s authority. The respondent’s conduct, though dilatory, does not rise to that level. It is negligent and disruptive, but not defiant.
16. Accordingly, the Court finds that the breaches are serious but remediable, and do not justify striking out at this stage.

(ii) Reasons for the Default

17. The applicant argued that excuses of change of counsel and logistical difficulties are inadequate. Continuity of representation is a professional duty, and logistical challenges cannot justify eight months of non-compliance.
18. The respondent argued that the reasons are genuine: transition between counsels, reliance on ministries, and client location on an outer island. Counsel emphasized efforts to communicate with applicant’s counsel, evidencing good faith.

The Law

• Johnson underscores that sanctions must be proportionate to culpability.
• Queensland v J L Holdings reminds the Court that fair trial rights cannot be eclipsed by case management rules. The respondent’s reasons, though imperfect, mitigate culpability and weigh against striking out.

Application

19. The Court accepts the reasons as genuine. However, genuine reasons do not absolve responsibility; they mitigate culpability. Continuity of counsel is a professional duty, yet the Court acknowledges that transition periods can disrupt compliance. Logistical difficulties in obtaining documents from ministries and an outer island client are systemic challenges, not mere excuses of convenience.
20. The Court finds that negligence evident, not deliberate defiance. The respondent’s explanations, transition between counsels, reliance on ministries, and client location on an outer island, are genuine but imperfect. Genuine reasons mitigate culpability; they do not absolve responsibility.
21. Johnson requires sanctions proportionate to culpability. Queensland v J L Holdings reminds the Court that fair trial rights cannot be eclipsed by case management rules. The Court accepts that systemic challenges disrupted compliance, but declares that negligence remains.
22. The Court finds that fairness requires restraint. Delay must be denounced, but the defence cannot be extinguished where genuine difficulties explain the default. The respondent’s conduct shows poor case management, not deliberate disobedience.
23. Accordingly, the Court declares that culpability is mitigated. Proportionality weighs against striking out. A calibrated sanction, strict timelines and nominal costs, preserves fairness while reinforcing the authority of the Court’s directions.

(iii) All the Circumstances of the Case

24. The applicant argued that repeated defaults prejudice the estate, delay justice, and undermine the authority of the Court. Counsel submitted that leniency has already been extended twice, and further indulgence would weaken procedural discipline.
25. The respondent argued that striking out is disproportionate. The matter remains within the trial listing window, and prejudice to the applicant can be mitigated by strict final timelines.

The Law

• Denton requires balancing seriousness, reasons, and fairness together.
• Johnson again cautions against mechanistic sanctions.
• Leahy reaffirms that striking out is reserved for intentional defiance. Accordingly, proportionality favours calibrated sanction rather than extinguishing the defence.

Application

26. The Court finds that delay has caused inconvenience, but prejudice can be mitigated. The applicant is entitled to expeditious resolution, yet the matter remains within the trial listing window. Guided by Denton, the Court must weigh seriousness, reasons, and all circumstances together. The defaults are serious, but the reasons, though imperfect, are genuine, and the case remains capable of fair trial.
27. Johnson reminds the Court that sanctions must not be applied mechanistically. To strike out the defence solely because of procedural delay would be disproportionate, especially where the merits remain untested and the quantum of $1,370,880 is substantial. Such a sanction would extinguish a defence without adjudication, undermining fairness.
28. Leahy reaffirms that striking out is reserved for intentional non-compliance. The respondent’s conduct, though dilatory, does not demonstrate deliberate defiance. Proportionality therefore requires a calibrated response: strict final timelines and nominal costs to denounce delay, while preserving the respondent’s right to defend.
29. Accordingly, the Court finds that calibrated sanction, strict final timelines and nominal costs, best serves justice, denouncing delay while safeguarding the respondent’s right to defend.

VI. Conclusion

30. Balancing seriousness, reasons, and all circumstances, the Court’s determination is as follows:
    • (a) The applicant has established delay and non-compliance, but has not demonstrated that the respondent’s conduct was willful or contumacious to justify striking out the defence under Order 33 Rule 21.
    • (b) Guided by UK and Commonwealth authorities, the interests of justice favour allowing the respondent a final opportunity to comply, subject to strict timelines, while safeguarding the applicant’s right to expeditious resolution. Delay must be denounced, but proportionality requires restraint where the quantum of the claim is substantial, and the merits remain to be tested.

VII. Order

31. For the reasons set out above, the Court orders and declares as follows:
    1. The applicant’s Notice of Motion dated 13 October 2025 is dismissed.
    2. Notwithstanding the lapse of earlier timelines, the Court issues the following further and final Directions. The respondent shall comply in full, by making discovery and filing affidavits, within 30 days from the date of this ruling. Failure to comply shall entitle the applicant to renew the motion to strike out the defence, without further indulgence.
    3. Failure to comply within that period shall entitle the applicant to renew the motion to strike out the defence, without further indulgence.
    4. To mark and denounce the delay caused by the respondent’s repeated non-compliance, the respondent shall pay the applicant nominal costs of $200 in respect of this application. This order is made not as compensation, but as a disciplinary measure to reinforce the authority of the Court’s directions.
    5. Save as provided above, costs of this application shall otherwise be in the cause.
       

Delivered this 19^th December 2025.

HON. AOMORO T. AMTEN
Judge of the High Court