Sevele v Tapueluelu [2025] TOCA 29; AC 19 of 2024 (20 November 2025)

IN THE COURT OF APPEAL OF TONGA AC 19 of 2024
CIVIL JURISDICTION [CV 4 of 2023]
NUKU’ALOFA REGISTRY
________________________________________________________________________

BETWEEN FELETI VAKA’UTA SEVELE

Appellant

AND KOLIO TAPUELUELU

First Respondent

AND KELE’A PUBLICATION LIMITED

Second Respondent

AND SIONE NGALU

Third Respondent

Hearing: 13 November 2025

Court: White, Harrison and Dalton JJ

Counsel: Tevita ‘Aho for the Appellant
First Respondent in person

Tim Matthews KC and Reimen Hii for the Second and Third Respondents

Judgment: 20 November 2025

JUDGMENT OF THE COURT

Introduction

[1] The appellant, Feleti Sevele, was formerly the Prime Minister of Tonga. He received a life peerage on his retirement from that office, is the Chairman of the National Reserve Bank of Tonga and is a local businessman. The first respondent, Kolio Tapueluelu, is a former police officer and sometime commentator on a radio station called Kele’a Voice 91.5 FM. The second respondent, Kele’a Publication Ltd (Kele’a), owns and operates the radio station and a newspaper called Kele’a. The third respondent, Sione Ngalu, was a host of programs on the station

[2] On 18 October 2022 Mr. Ngalu hosted a program on the station in which Mr. Tapueluelu participated as a commentator. During the program Mr. Tapueluelu made various statements about Mr. Sevele who claims they were defamatory of him in the performance of his office as Prime Minister. Mr. Sevele issued proceedings in the Supreme Court against Mr. Tapueluelu, Kele’a, and Mr. Ngalu. These parties all raised affirmative defences to Mr. Sevele’s claim.

[3] Mr. Sevele’s claim was tried before Cooper J and a jury. Following some 25 days of evidence and judicial directions the jury returned a verdict that Mr. Sevele’s claim was not proved against each defendant. The Judge dismissed Mr. Sevele’s claim without entering judgment for the defendants or ordering costs.

[4] Mr. Sevele appeals on the ground that the jury’s verdict was perverse or unreasonable.

Background

[5] Despite the length of the trial, many key facts are not and were not in dispute at trial. During the program, which was conducted in the Tongan language, Mr. Tapueluelu spoke these words as translated:

“No, all I am talking about is Fred’s nature. Soni, whilst Fred was Prime Minister he had a deal with someone concerning some gold. And the person [ Mr Andre Manu] came with the gold, but Fred did not pay the full price they agreed to. And then after that Fred then ordered for this person to be arrested because this thing was not real gold. But when this person tried to have this thing returned to him, he did not return it to him. All this occurred while Fred Sevele was Prime Minister”

[6] Mr. Ngalu then inquired:

“So, this was the gold that was seized during this time”
To which Mr. Tapueluelu replied:

“This is what we are referring to, Soni. That is what we mean, and those policemen we were working with knew all about it, this was at a time when we were no longer in the police force and were working with Feleti. They all know, and none of those guys will lie. Those guys are religious now, we are all religious now Soni and we will now speak of what had been done. We will not keep silent... But when he says he was surprised stop it Soni, stop it Soni. That is not correct, absolutely not correct”
[7] Mr. Ngalu is alleged to have concluded the discussion with the words:

“Bravo. I can see that you were very close with Fred by your explanation that he would pick you up on Sundays and you would go together.”

Claim

[8] Mr. Sevele pleaded that the words spoken by Mr. Tapueluelu amounted to accusations of corruption and theft committed by a Tongan Prime Minister whilst in office and conveyed in their natural and ordinary meaning that he had committed a felony, an imprisonable offence. In particular, Mr. Sevele pleaded that the words in their natural and ordinary meaning meant and were understood to mean that he was a cheat; obtained gold by a false pretense; falsely claimed that the gold was a fake; refused to return the gold to its owner; caused the arrest of the person who arranged for the gold to be brought to him; is evil, a liar, corrupt, untrustworthy and unreliable; and is a bad person against whom the police officers who worked with him will speak up.

[9] Mr. Sevele pleaded that Mr. Tapueluelu’s statements were defamatory of him by injuring his credit, character, reputation and business, held him up to hatred, ridicule and contempt, and caused him damage^[1]. Mr. Sevele further pleaded that all three defendants were actuated by malice. He sought judgment for general damages of $130,000 and exemplary damages of $80,000.

[10] Mr. Tapueluelu’s initially represented himself. He filed a brief notice of response essentially denying Mr. Sevele’s claim but expressly admitting some of the pleaded defamatory meanings - that is, that his words meant that Mr. Sevele obtained gold by a false pretence, falsely claimed that the gold was a fake, and refused to return the gold to the owner. Mr. Tapueleulu later filed an amended statement of defence with the benefit of legal representation. This document apparently withdrew his earlier admissions of some of the pleaded defamatory meanings but expressly pleaded the defence of justification or truth of his statements^[2].

[11] Kele’a’s defence was to the effect that the words were spoken without its knowledge or consent. Mr. Ngalu’s defence was to the same effect; and that he did not participate in the publication of Mr. Tapueluelu’s statements. In essence, he pleaded that Mr. Tapueluelu participated in the program for the express purpose of discussing the cancellation of the 2019 Pacific Games, which Tonga was to host, and the subsequent settlement of a dispute between the Tongan government and the interested sporting bodies in which Mr. Tapueluelu participated; that a fuller transcript shows that the interview was primarily devoted to this issue; and that Mr. Tapueluelu gratuitously deviated from the agreed subject matter to make the impugned statements about Mr. Sevele. He also pleaded that his own concluding comment in Tongan is incorrectly translated into English as “Bravo” when its true meaning was “Interesting”.

Trial

[12] As noted, the evidence at trial lasted for 25 days. Booklets of agreed documents were produced by each party. The Judge’s formal directions including a question sheet followed. It is unnecessary for us to review the evidence in any detail given our conclusion that Mr. Sevele’s appeal must be allowed.

[13] Mr. Tapueluelu represented himself at the trial. Much of its excessive length was caused by his conduct of his defence. His unstructured evidence in chief ran to 50 pages of transcript. It was devoted to introducing a great deal of material which was irrelevant and highly prejudicial, both in its contents and volume, against Mr Sevele. Similarly, his cross examination of witnesses was irrelevant, argumentative and discursive.

[14] Mr. Tapueluelu sought to lead his own evidence through statements rather than relevant questions of Mr. Sevele and others, leading Cooper J at an early stage to reprimand him for using his right of cross examination to make speeches to witnesses and the jury. Mr. Tapueluelu’s persistent breaches of the rules led to frequent objections from other counsel causing correspondingly frequent interruptions to the flow of the trial. He challenged at unacceptable length at an early stage the trial Judge’s refusal to recuse himself from continuing to preside.

[15] We should add that much of the cross examination of Mr. Sevele and his witnesses by Kele’a’s counsel, Ms. Fa’anunu, was also irrelevant and prejudicial. She questioned him aggressively and at length on a range of issues which had no bearing whatsoever on the issues for determination. It was a sustained critique of his performance as Prime Minister of Tonga and of his character. At one stage she suggested to the Judge that Mr. Sevele’s credibility was in issue. Her apparent purpose was to advance Mr. Tapueluelu’s justification defence but without any apparent independent evidential foundation.

[16] Kele’a was entitled to put Mr. Sevele to proof of his claim but its statement of defence did not adopt Mr. Tapueluelu’s plea of justification. Accordingly, any cross examination should have been strictly limited to the threshold questions of liability of whether the words bore the meanings complained of and, if so, whether Mr. Sevele suffered damage to his reputation as a result. These questions were to be answered on an objective basis.^[3] What Mr. Sevele or other witnesses understood the words to mean, or understood was the damage to his reputation, was irrelevant. Mr. ‘Aho rightly objected to lines of questions which sought Mr Sevele’s subjective answers on meanings and were apparently designed to show that he had not proved financial loss. Kele’a’s line of attack was also inconsistent with its claim of innocent dissemination.

[17] However, of most significance was Mr. Tapueluelu’s failure to challenge Mr. Sevele’s denial of the truth of his allegedly defamatory statements. Apart from a passing suggestion that Mr. Sevele was a liar, Mr. Tapueluelu did not systematically or even generally put to Mr. Sevele each of his specific allegations made in the broadcast. We shall return to this issue, but it is sufficient to record that Mr. Tapueluelu carried the burden of proving his defence of justification. Mr. Tapueluelu’s omission to tackle the essence and details of Mr. Sevele’s rebuttal or the supporting evidence of the two former police officers to whom he referred to in the interview but who contradicted Mr Tapueluelu’s allegations at trial would have been relevant to the function of a properly directed jury when evaluating his primary defence.

[18] In August 2024, one month before trial, all three defendants applied for leave to plead the affirmative defence of qualified privilege. This defence applies to communications made bona fide by any person in discharge of a legal, moral or social duty or in reference to a matter in which he has an interest and the person to whom he made it has an interest in receiving it unless it is proved that the person making the statement was actuated by anger, ill will or other improper motive ( often referred to as malice)^[4]. It is the Judge’s function to decide whether the communication was made in the pleaded circumstances and, if so, and there is no evidence of malice, he or she shall direct a verdict for the defendant.^[5]

[19] Cooper J granted leave in the face of Mr Sevele’s opposition. He held that the statements were published on a privileged occasion. He noted that the jury would have to decide the question of malice.

Directions

[20 ] Cooper J directed the jury at the conclusion of the evidence. He gave oral directions and helpfully summarized in a six page document for the jury the legal principles, the competing cases, the facts and evidence relating to the parties’ positions on each major issue. He proposed that the jury members consider their verdict by answering a series of 11 questions in a separate document entitled “Route to Verdict” which had been settled in conjunction with counsel and Mr. Tapueluelu.

[21] The transcript discloses that the Judge orally directed the jury as follows^[6]:

“The first question for you to decide is this [on the balance of probabilities] is it more likely than not that the words are defamatory. The defamation of character consists of speaking any matter that is damaging to the reputation of another...[the Judge included the reasonable person test]”

[22] At a later stage Cooper J directed the jury by reference to Question 1 in the “Route to Verdict”^[7]:

“Members of the jury in considering your verdicts what you must do is work through each of these questions one at a time. Let us start from the beginning. Question 1 has the plaintiff proven that [on the balance of] probabilities that the words spoken were defamatory. Defamatory means damaging a reputation or exposing someone.... [inaudible] if your answer is the first question is no, then ...[inaudible] ...end of the case against all three defendants. If the answer is yes, we go on to Question number 2...”

[23] This record is an apparently incomplete transcription of the Judge’s direction on Question 1 (Q1) which was:

“Q1 Has the Plaintiff proved on the balance of probabilities the words spoken of were defamatory? Defamatory means damaging the reputation of another or exposing another to hatred, contempt or ridicule or causing him to be shunned.

If no then the case against all three defendants fails and that is the end of the matter for all three defendants”

[24] The Judge did not, however, ask the jury to answer all 11 questions. In fact, he directed the jury that if it answered Q1 by finding that the words spoken by Mr. Tapueluelu were not defamatory, then it need go no further and Mr. Sevele’s claim would fail.

[25] The jury returned its verdict after finishing its deliberations. Cooper J successively asked the foreperson whether “you find the case proved ...” against each defendant. The foreperson answered the same question in the negative for each defendant. The Judge immediately discharged the jury and adjourned the Court. Although not recorded in the transcript, it is common ground that he dismissed the proceedings.

Appeal

(a) Perverse Verdict

[26] Mr. Sevele appeals against the result in the Supreme Court which for these purposes we will treat as a decision against which an appeal lies as of right^[8]. The sole ground of appeal is that the jury’s verdict was perverse or against the weight of the evidence. We accept that the verdict is the Court’s decision or part of it ^[9]. On Mr. Sevele’s behalf, Mr. ‘Aho applies for an order setting aside the verdict and directing a new trial.

[27] We agree with Mr. ’Aho that the verdicts in favour of Mr Tapueluelu and Kalea were perverse for reasons which can be stated shortly. A verdict is perverse if it is against the weight of the evidence, has no reasonably logical or rational foundation or is one which no properly directed jury acting reasonably could reach. Mr. Matthews KC for Kele’a and Mr. Ngalu recites the settled proposition that an appellate court cannot interfere with a jury verdict on the basis that it would have reached a different outcome on the evidence.^[10] However, we are in no doubt that Mr. Sevele’s primary ground of appeal satisfies the high threshold required for reversal.

[28] There was an orthodox division of functions in this case. It was for the Judge to decide whether the words spoken were reasonably capable of a defamatory meaning; if so, he was required to leave it to the jury to decide whether the words in fact have a defamatory meaning^[11] The defendants did not suggest that the offending words were not reasonably capable of bearing a defamatory meaning. Cooper J discharged his function by correctly directing the jury on the statutory meaning of defamation. He did not, however, give any contextual guidance on the relevant facts.

[29] On appeal Mr Matthews does not suggest that Mr. Tapueluelu’s words were not defamatory. Instead, he submits the jury’s answer to Q1 is capable of interpretation as an acceptance of Mr. Tapueluelu’s defence of truth has raised by Q2 or the qualified privilege defences identified in Q3 onwards. He describes the finding as a preference between two competing narratives.

[30]. Cooper J’s oral and written directions focused on the threshold question of Mr. Sevele’s burden of proof. Q1 as it related to each defendant was the only question which sought an answer on whether he had discharged his legal and evidential burden by proving that the words were in fact defamatory. Proof that the words were defamatory and were published by each defendant was sufficient to establish Mr Sevele’s case. The burden would then shift to the defendants to prove their defences. Each of the remaining 10 questions accordingly related to satisfaction of that onus by reference to each affirmative defence.

[31] Consistently with this structure the Judge directed the jury that Mr. Sevele would have failed to prove his case if it answered Q1 in the negative. Consequently, it would not have to consider the remaining 10 questions dealing with the defendants’ burden of proving their affirmative defences. Conversely, if it answered Q1 affirmatively, the jury would have to answer some or all of the following questions

[32] On the jury’s return from its deliberations Cooper J asked whether it found the case proved against each defendant. However, the Judge’s questions were not expressly related to his question sheet. On one view that document was no more than what it was headed, “ A Route to Verdict”, and the Judge’s questions in open Court were an invitation to an answer of wider scope than Q1. Mr Aho’s contrary argument assumes that his questions were in fact related to Q1 given ( a) his express oral direction that the jury was to reach its verdict by working through the identified questions and (b) his written direction that Mr Sevele’s case against all three defendants would fail in the event of a negative answer to whether the offending words were defamatory as posed in Q1.

[33] In our view the questions which Cooper J asked the jury about whether Mr Sevele had proved his case against each defendant were ambiguous.^[12] They might have been understood as asking whether Mr Sevele had proved the case on which he bore the onus. Alternatively, they might have understood the Judge as asking whether Mr Sevele had proved his claim in defamation against each defendant.

[34] It is quite possible that the jury understood the question in the first sense. If so, .the answer was perverse, at least in relation to the words spoken by Mr Tapueluelu. On the other hand, the jury may have considered and upheld one of the defences, and concluded that Mr Sevele had not established his case for that reason.

[35] To elaborate on the first alternative, , if the jury’s negative answers to the Judge were actually limited to Q1, they were plainly perverse. The words spoken by Mr. Tapueluelu were unquestionably defamatory of Mr. Sevele. By any objective measure they conveyed the meanings of which he complained. Mr. Tapueluelu’s words were calculated to damage and would inexorably have damaged his reputation. They were a direct attack on Mr. Sevele’s character and integrity by implying that he was corrupt and had committed crimes of serious dishonesty while in office. A properly directed reasonable jury would have had to answer the first question affirmatively. There was no other reasonable or rational answer

[36] However, it is open to inference that the answers went further and extended to Mr Sevele’s failure to prove publication, the other element of liability, despite Q1’s omission to refer to it or the Judge’s failure to direct on it. Not only did Q1 not refer to the issue of publication, critically it did not distinguish between the roles of the three defendants. Its apparent premise was that all three were publishers.

[37] Q2 went straight to the first affirmative defence of justification. The Judge did not provide an intermediate question for the jury about which party or party was responsible for publication of the words if Q1 was answered affirmatively. This hiatus was left uncured. Nor did he give any directions on this subject. Plainly Mr. Tapueluelu published the words by speaking to them. So did Kele’a as the owner of the station and broadcaster^[13]

[38] However, Mr. Ngalu was in a different category. Cooper J did not direct the jury on his status as participant. The issue was whether Mr. Ngalu’s question “So this was the gold that was seized at the time” or his alleged exclamation of “ Bravo” were sufficient to constitute him as a publisher, given his defences that he did not participate in the publication. The Judge omitted to give any directions, written or oral, on this critical point.

[39] We repeat that the jury’s verdicts were plainly perverse in relation to the liability of Mr Tapueluelu and Kele’a to Mr Sevele if they were directed only to Q1, He had proved that they published the offending words and that they were defamatory. The verdicts were not perverse as against Mr Ngalu if they extended to the element of publication. However, we cannot be sure whether that was so or what the jury’s answer meant in relation to Mr Ngalu’s liability. Cooper J’s dismissal of Mr Sevele’s claims against Mr Tapueluelu and Kele’a was wrong on the ground of perversity but not for that reason against Mr Ngalu.

[40] The real possibility that the jury’s verdicts may have been based on a perverse answer to whether Mr Tapueluelu’s words carried defamatory imputations means that there must be a new trial.

(b) Miscarriage of Trial

[41] In any event, the trial miscarried. We accept that Mr. Sevele has not appealed on this specific ground. However, we are satisfied that the trial did indeed miscarry for a number of reasons. The perversity and uncertainty of the verdicts, and the nature and extent of the Judge’s misdirections, to which we shall refer, were major contributors. Mr. Tapueluelu’s misconduct was another principal factor. We have already referred to some of its elements.

[42] In summary, Mr Taueluelu did not comply with numerous procedural and substantive requirements. He abused the trial process as a platform to introduce a wide range of material which had no relevance to the issues for determination. His evidence in chief and jury address were unstructured and, at times incoherent. All of it was designed to divert the jury from the real issues or to denigrate and thus prejudice Mr. Sevele. Also, as noted, much of Ms Faanunu’s cross examination of Mr. Sevele was devoted to introducing irrelevant and unduly prejudicial material which remained before the jury.

[43] At various stages Cooper J attempted to manage Mr Tapueluelu’s conduct. We accept that he was at a disadvantage because the proceedings were conducted in the Tongan language. But in our view he failed to impose the degree of control which was required in these circumstances to prevent Mr Tapueluelu from perverting the course of the trial. And we accept that the process placed Mr Aho at an increasing disadvantage in attempting to protect Mr Sevele’s right to a fair hearing. The transcript records his numerous and correct objections to questions asked by Mr Tapueluelu and Ms Faanunu, and the former’s evidence. But we agree with Mr Aho that his interjections risked unfairly alienating the jury, thus prejudicing his client.

[44] When viewed in conjunction with the ambiguity in the verdict taking and the Judge’s misdirections, we are satisfied that the sheer weight of this misconduct resulted in a trial which bore little relationship to the central issues for the jury’s determination. Mr. Sevele’s right to have his claim tried according to the procedural rules designed to achieve a fair trial was inevitably prejudiced as a result. His appeal against all three defendants is allowed on this ground.

(c) Summing Up

[45] While that conclusion is sufficient to dispose of the appeal, we are also satisfied that the Judge’s directions were wrong or inadequate. Mr. Matthews rightly notes that this ground is not raised on appeal but accepts that this omission does not exclude our jurisdiction^[14].

[46] The jury needed much more contextual guidance than it was given by the Judge. The circumstances of this case including Mr. Tapueluelu’s conduct of his defence and the duration of the trial called for (a) a recital of the impugned statements; (b) a direction to inquire whether the words supported any or all of the pleaded meanings^[15]; and (c), if so, whether any or all of those meanings would have had the effect of damaging Mr. Sevele’s reputation in the eyes of a reasonable person or exposing him to hatred, ridicule or contempt or causing him to be shunned. The Judge correctly directed the jury to ignore Mr. Tapueluelu’s reliance on various newspaper articles but that was not enough. Ms Fa’anunu was right to submit to the Judge that a fuller direction on the factual context of the pleaded defamatory meaning was required.

[47] We note, not exhaustively, other inadequate or incorrect elements of the summing up. First, the Judge failed to direct the jury adequately on Mr. Tapueluelu’s defence of justification. Proof of the defamatory matter complained of is a complete defence. The jury should have been directed to consider whether the sting of Mr. Tapueluelu’s words was substantially true – that is, whether the meaning of the words taken as a whole were substantially true.

[48] While he correctly directed the jury that Mr. Tapueluelu carried the burden of proving justification, Cooper J should have given more detailed directions on the standard of proof. That was the civil standard of proof on the balance of probabilities. But in considering whether Mr Sevele had discharged it the jury should have been directed to apply a standard above a mere balancing which required it to be reasonably satisfied taking account of the seriousness of the allegations, their effect on Mr. Sevele and the likelihood of the Prime Minister of Tonga engaging in this type of criminal or corrupt conduct or abusing his powers of office in this way.^[16]

[49] In this respect the Judge should have drawn the jury’s attention to Mr. Tapueluelu’s failure to challenge the essence and details of Mr. Sevele’s denial of the misconduct alleged against him, and the unchallenged evidence of the two former police officers who denied any wrongdoing by Mr. Sevele – the two witnesses whom Mr. Tapueluelu expressly identified during the broadcast as available to corroborate his account of Mr. Sevele’s alleged orchestration of Mr Manu’s wrongful arrest.

[50] Second, while Cooper J determined before trial the threshold question of whether the words were communicated on a privileged occasion, his finding was plainly wrong. Mr Aho was correct that the subject matter of Mr. Tapueluelu’s statements was unrelated to the purpose of the broadcast.^[17] The occasion was not privileged. The defence should not have been left to the jury.

[51] Even if the occasion was privileged, the only issue for the jury would then have been whether the words were actuated by malice. The Judge not only left both elements to the jury, but he did so without any proper explanation about how it might determine whether the occasion was privileged. And there was a dissonance which required explanation between Kele’a’s pleaded defence distancing itself from the offending statements and its apparent reliance on an affirmative defence of qualified privilege.

[52] These two failures were sufficiently erroneous to require the verdict to be set aside even if Mr Matthews’ primary argument about the meaning of the jury’s verdict was correct. We note also that the Judge failed to direct the jury to answer all the questions in order to give its verdict on all the issues necessary to determine Mr. Sevele’s claim and the pleaded defences.

[53] Nor did Cooper J direct on the critical issue of damages if the jury found for Mr. Sevele on liability. The transcript reveals an interchange between counsel and the Judge at the close of his summing up. But it was left essentially unresolved, and the jury was not asked to assess damages.

[54 ] We note also, in case this claim proceeds to a retrial as we shall direct, that Kele’a’s statement of defence can be construed as raising the affirmative defence of innocent dissemination. However, as noted, Cooper J apparently refused to allow the broadcaster to pursue that defence at trial on the ground that it was not a secondary or subsidiary publisher. Its existence is not referred to in the question sheet.

[55] Kele’a will, however, be entitled to run the defence of innocent dissemination at the retrial. We cannot determine its merits in the absence of the jury’s verdict on it. It must replead the defence properly. We note that Kele’a’s most substantial hurdle will be to establish that it was neither (a) a primary publisher nor (b) negligent in all the circumstances in allowing Mr. Tapueleulu to make his statements by ensuring that Mr. Ngalu was properly instructed on a process for immediately engaging an override or control mechanism. As noted, at trial Kele’a’s counsel ran a defence in cross examination of Mr. Sevele which was inconsistent in its pleaded argument of innocent dissemination and associated attempts to distance itself from the accuracy of the offending statements. Also neither Kele’a nor Mr. Ngalu has tendered an apology to Mr. Sevele at any stage.

[56] Mr. Ngalu’s defence that he did not publish the offending words will likewise be open for argument at a retrial

.

Result

[57] Mr. Sevele’s appeal against the dismissal of his claim by the Supreme Court is allowed. We set aside the jury’s verdict and order a new trial on the terms that:

(a) The jury is to be directed that the words spoken by Mr. Tapueluelu are defamatory of Mr. Sevele^[18];

(b) The jury is to be directed that the defamatory were published by Mr. Tapueluelu and Kele’a.

(c) The defence of qualified privilege is unavailable to any of the defendants.

(d) The defence of justification is to exclude any allegation that Mr Sevele arranged for the wrongful arrest of Mr Manu

(d) Kele’a and Mr Ngalu are to replead their affirmative defences as directed above.

[58] We are confident that the Judge who presides at the retrial will ensure that it is managed appropriately to avoid the repeated possibility of a miscarriage, and that evidence and argument is strictly limited to the issues which remain for the jury’s determination. The trial Judge may also wish to consider appropriate trial management techniques including where appropriate requiring Mr. Tapueluelu to submit to the Judge in writing for pre- approval his brief of evidence, the briefs of any other witness to be called in his defence, his proposed areas of cross examination of witnesses and his addresses to the jury.

[59] The respondents are ordered to pay Mr. Sevele one set of costs on appeal to be fixed by the Registrar together with reasonable disbursements. The costs of the proceedings in the Supreme Court including the first trial are to be determined by the Judge assigned to hear the retrial.

White J

Harrison J

Dalton J

---

^[1] Section 2 of the Defamation Act
^[2] Section 14
^[3] Tonga Weekly Newspaper Ltd v Amanaki (Amanaki) AC 20/2022 at [25]- [28]
^[4] Section 10 of the Defamation Act.
^[5] Section 11 ; see also Amanaki at fn 3 above
^[6] Transcript at pp 852 – 853 of the Appeal Book
^[7] Transcript at pp 862-863
^[8] Section 10 (1) of the Court of Appeal Act
^[9] Australia and New Zealand Banking Group Limited v Hon Lasike Trading as Sandy Boys Motel [ 2016] TOCA 7; AC 12 of 2015
^[10] Mechanical & General Inventions Co Ltd v Austin [1935] AC 346 at 375
^[11] Section 17 of the Defamation Act
^[12] see John Fairfax Publications Pty Ltd v Gozic [2007] 28 at [133]
^[13] See Gatley on Libel and Slander, 12 Ed, at para 6.34
^[14] Order 8 Rule 1 (4) of the Court of Appeal Rules
^[15] See para 9 above
^[16] Briginshaw v Briginshaw ( [1938] HCA 34; 1938) 60 CLR 336, applied in Roberts-Smith v Fairfax Media Publications Ltd ( Appeal) (2025) FCAFC 67
^[17] See Amanaki at fn3 above
^[18] This Court has power to make any finding that could be made by the Supreme Court: Order 8, Rule 1 of the Court of Appeal Rules