Pohiva v Solomon [2009] TOCA 18; AC 18-2009 (10 June 2009)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

AC 18 of 2009

BETWEEN:

1. SIOSIUA PO’OI POHIVA
2. LAUCALA POHIVA
3. FALISI TUPOU
Appellants

AND:

ROBERT ALEXANDER SOLOMON
Respondent

BEFORE THE HON. CHIEF JUSTICE FORD

Counsel: Mr. Tu’utafaiva for the appellants and Mr. Afeaki and Mrs. Faka’osi for the respondent.

Date of Chambers hearing: 10 June 2009
Date of Ruling: 10 June 2009

RULING

[1] The respondent has applied for an order setting aside orders I made on 8 and 13 of May 2009 respectively granting leave to the appellants to appeal out of time; to appeal against an interlocutory order and granting a stay of the proceedings before the Supreme Court pending the determination of the appeal in the Court of Appeal.

[2] The application had been set down for a Chambers hearing on 3 June 2009 but at that hearing junior counsel for the respondents sought an adjournment for another week to allow senior counsel from New Zealand to be present. The adjournment was granted.

[3] At the Chambers hearing on 10 June I heard submissions and indicated to counsel that I had earlier read the extensive written submissions filed by the respondent. The thrust of Mr Afeaki's submissions were that his client had not been given the opportunity to be heard on the applications. It was contended that the orders were consequently "erroneous in law, contrary to natural justice and unfair and unreasonable."

[4] Although it is conceded that a hearing would have been desirable, the rules do not require such a hearing. There was particular urgency associated with the appellant's application for leave to appeal and the stay order because the Court of Appeal session for 2009 is set down to commence on 29 June and the cases to be included in the list were in the process of being finalised. The call-over for the 2009 Court of Appeal session had been held back on 9 April. As soon as the final fixture list had been confirmed, the relevant documentation had to be dispatched to the appeal judges in Australia and New Zealand. Time, in other words, was at a premium. The few weeks leading up to the Court of Appeal session each year is invariably the busiest period for the court staff.

[5] The other factor, relevant to the stay application, was that a receiver had been appointed on behalf of the respondents and he was taking active steps to execute the judgment the appellants sought leave to appeal against. Unless the applications were acted on promptly the object of the appellant's appeal could well have been nullified.

[6] Although I did not hear argument on the point, it may be that it was not necessary to obtain special leave to appeal against an "interlocutory order". Interlocutory orders are generally orders made by the court granting appropriate interim relief or remedy pending the final determination of the proceeding. The interlocutory order in question struck out the appellant's statement of defence and, to that extent, it could be said to be a final determination of the proceeding. I stress, however, that this point was not taken before me.

[7] Order 7 (1) of the Court of Appeal Rules provides that an application for leave to appeal or for leave to appeal out of time may be made ex parte supported by an affidavit and may be determined by a single Judge without a hearing. Order 9 of the Court of Appeal Rules provides that an order granting a stay of execution may be made either by the Court of Appeal or a Judge of the Supreme Court. The rule does not require a hearing.

[8] In his written submissions, respondent's counsel referred to the appellants' application as having been made inter partes. The appellants' application followed the usual format provided for in the Supreme Court Rules. The Supreme Court Rules 2007 did away with the old ex parte/inter partes nomenclature. Order 13, which prescribes the rules covering all applications to the Court, provides that the Court may deal with an application without a hearing in the circumstances provided for by Order 13 Rule 4. Rule 4 (e) provides that the Court may deal with an application without a hearing if it considers it appropriate in the interests of justice to dispense with a hearing.

[9] The case in question is a civil defamation proceeding. On 20 October 2008 the respondent succeeded in obtaining summary judgment against the appellants with an award of general damages in the sum of $250,000 and aggravated damages also in the sum of $250,000. Subsequently, as indicated above, a receiver was appointed to enforce the judgment.

[10] In support of the respondent's application for an order setting aside the orders made on 8 and 13 May, a lengthy affidavit was filed by junior counsel for the respondent alleging that the orders in question had "serious prejudice" on the respondent. When asked at the Chambers hearing to explain the serious prejudice she was referring to, counsel replied: "Solomon continues to be defamed."
There was no affidavit filed by the respondent personally alleging any prejudice.

[11] Given the pending hearing in the Court of Appeal, it would not be appropriate for me to make any further observations on the submissions made by the respondent's counsel on the facts of the case. Suffice it to say that I have considered all the material before me but I have not been persuaded that the orders in question ought to be set aside. If there is any injustice I am satisfied that it can be remedied by the Court of Appeal when it hears this particular appeal in 28 days time. The respondent's applications are accordingly dismissed.

NUKU'ALOFA: 10 JUNE 2009

CHIEF JUSTICE
(President of Court of Appeal)