'Ilavalu v Attorney General [1999] TOCA 3; CA 14 1999 (13 July 1999)

IN THE COURT OF APPEAL OF TONGA
ON APPEAL FROM THE SUPREME COURT OF TONGA

APPEAL NO: 14/99
BETWEEN

TU’IPULOTU 'ILAVALU

Appellant
-V-

ATTORNEY GENERAL

Respondent

Coram:
Burchett, J, Tompkins J, Beaumont J.

Counsel:
No appearance for the Appellant
Mr Taumoepeau for the Respondent

Date of hearing: 13 July 1999
Date of judgment: 13 July 1999

JUDGMENT OF THE COURT

This appeal was lodged on behalf of the appellant on 4 March 1999 by Hola 'Ahota'e'iloa and Associates, lawyers (whom we shall call "the lawyers"). It was due to be dealt with at the present sittings of the Court of Appeal, being listed for hearing at 2:00 pm yesterday, 12 July 1999. For the respondent, an Outline of Submissions was filed, dated 8 July 1999. No Outline of Submissions was filed on behalf of the appellant.

Neither was any Notice of Discontinuance filed. There has been no appearance for the appellant. The Court has been informed by the Registry that Mr Hola sent it a letter, received last Friday, stating that he would be away from Tonga for a period commencing last Saturday ; but there has been no application for an adjournment, nor any intimation of what was proposed to be done about the appeal.

In the circumstances, a half day of the Court's two weeks sittings has been wasted. Had due notice been given that the appeal would not proceed, the Court could have used the time hearing another matter, and the respondent could have saved expense. Lawyers should understand that it is their duty to the Court to give timely notice in such a case.

A decision must now be made about the appeal. Plainly, it must be dismissed ; but the question of its costs must also be resolved. The respondent should be adequately protected by an appropriate order, and this Court has a discretion wide enough to enable it to provide that protection. In our opinion, the Court's order should, prima facie, be made against the lawyers personally. However, as they are not here to offer any explanation, they should have an opportunity to be heard, should they desire to put forward some reason why the order proposed ought to be varied.

Accordingly, the orders made now are:

1. That the appeal be dismissed;

2. That, subject to the third order which follows, the respondent's costs be paid by the lawyers personally;

3. that the lawyers have liberty to apply on two days notice, but only during the present sittings of the Court of Appeal, to seek to vary the second order, and failing their doing so the costs may be taxed forthwith;

4. that the respondent give notice to the lawyers by telephone or personally today of these orders and confirm that notice by letter to be sent also today by prepaid ordinary mail addressed to the lawyers at their address for service.

Burchett J, Tompkins J, Beaumont, J.