Fonua v Tonga Communications Corporation Ltd [2009] TOCA 3; AC 04-2008 (10 July 2009)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

AC 04 of 2008

BETWEEN:

SIOSAIA FONUA
Appellant

AND:

TONGA COMMUNICATIONS COPORATION LIMITED
Respondent

Coram: Burchett J
Salmon J
Moore J

Counsel: Mr. Niu for the Appellant
Mr.Tu’utafaiva for the Respondent

Date of hearing: 29 June 2009.
Date of judgment: 10 July 2009.

JUDGMENT OF THE COURT

[1] We are dealing with what purports to be an application for leave to appeal out of time against a judgment of Andrew J of 14 December 2007. The application is incompetent and should be dismissed on that basis. In order to explain why we have reached this conclusion it is desirable to set out in a very summary way, the history of the litigation between the parties.

[2] Mr Fonua, the applicant in this matter, had been employed by the Tonga Telecommunications Commission until July 1999. He was then the Chief Engineer. He left that employment in controversial circumstances. In due course he commenced proceedings in the Supreme Court claiming he had been wrongfully dismissed. In a judgment of Ward CJ in 2003, that claim was rejected but the Chief Justice determined Mr Fonua was entitled to a pension. The Commission appealed against the determination that Mr Fonua was entitled to a pension. In 2005, the Court of Appeal allowed the appeal, concluding Mr Fonua was not entitled to a pension.

[3] In later proceedings in the Court of Appeal in 2006, Mr Fonua successfully obtained leave to appeal out of time against the original judgment of the Chief Justice rejecting the claim that he had been wrongfully dismissed. This appeal was successful and the Court Appeal determined Mr Fonua had, as a matter of law, been dismissed and that the dismissal was unlawful. The matter was remitted to the Supreme Court to determine damages. That assessment was undertaken by Andrew J who gave judgment on damages on 14 December 2007. This is the judgment to which the present proceedings relate.

[4] However in appeal proceedings commenced in late 2007 or early 2008, Mr Fonua challenged the judgment of Andrew J of 14 December 2007. That is, Mr Fonua lodged an appeal against the judgment of 14 December 2007. That appeal raised, in substance, two grounds. The first was that Andrew J had wrongly concluded that Mr Fonua could be dismissed on one year's notice. The second was that damages were wrongly calculated by reference to Mr Fonua's salary as Chief Engineer. This appeal was dismissed by the Court of Appeal in a judgment given in July 2008. The legal effect of the dismissal of the appeal was that the judgment of Andrew J embodied the final judicial determination of the damages payable to Mr Fonua in his cause of action founded on an alleged unlawful dismissal.

[5] It is of fundamental importance in the Tongan legal system and other common law systems that there has to be a finality in litigation. This is embodied in the basic principle of res judicata. That principle establishes that if final judgment is given in proceedings between parties in relation to a cause of action then it is not open to the plaintiff in the first proceedings to commence further proceedings against the defendant based on the same cause of action. Other related principles have a similar operation. The legal rationale for the principle of res judcata is found in many judgements but, conveniently, was discussed by the High Court of Australia in Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502. There are, of course, a limited number of grounds on which a judgment can be reopened but that does not deny the existence of the basic principle of res judicata.

[6] So it is also with appeals. An appeal is a statutory right. It is a remedy given by statute and it is not a common law proceeding: see the observations of the High Court of Australia in Da Costa v Cockburn Salvage and Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192 at 202 and Building Licensing Board v Sperway [1976] HCA 62; (1976) 135 CLR 616 at 619. The statutory right of appeal from a judgment of the Supreme Court of Tonga in civil cases is conferred by s 10 of the Court of Appeal(Cct (Cap 10). The section speaks of "an appeal" lying to the Court of Appeal. That is, it speaks of an appeal in the singular. tolerably clear that the section confers a statutory right to appeal but to do so once onle only. Putting it slightly differently, there is no statutory right to maintain a second or subsequent appeal against a judgment where the statutory right to appeal has earlier been exercised and the first appeal has been heard and determined. There can be, of course, special and limited circumstances in which a Court of Appeal (and particularly a final Court of Appeal) can reopen a final appeal judgment disposing of an appeal: see the discussion of the High Court in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300. But those circumstances provide an exception to the general and well established rule that there needs to be finality to litigation not only at a trial level but also an appellate level.

[7] However, in the present case, Mr Fonua is simply seeking to appeal a second time against the judgment of Andrew J of 14 December 2007. He has no statutory right to do so. In the result, the application for leave to bring an appeal out of time is incompetent because the application is seeking leave to follow a course which is not authorised by statute, namely maintaining a second appeal. It is for these reasons that the application would have been dismissed as incompetent. However we note that the parties have, while the incompetent application has been before the Court of Appeal, nonetheless reached an agreement to settle their differences including agreement that the appeal is withdrawn. They do not, and cannot, ask that the settlement be reflected in further orders of the Court of Appeal. The appeal is withdrawn. Accordingly it is unnecessary to make any order.

Burchett J
Salmon J
Moore J