Lali Media Group Ltd v 'Utoikamanu [2003] TOSC 17; C 0124 2003 (25 March 2003)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

NO. CV. 124/2003

BETWEEN:

1. LALI MEDIA GROUP LIMITED.
2. FILOKALAFI 'AKAU'OLA.
Plaintiffs

AND:

1. SIOSIUA 'UTOIKAMANU.
2. THE KINGDOM OF TONGA.
Defendants.

BEFORE THE HON CHIEF JUSTICE WARD

COUNSEL: Mr S Tu'utafaiva for the plaintiffs/respondents
The Solicitor General and A Kefu for the defendants/applicants

REASONS FOR REFUSAL OF APPLICATION FOR SECURITY OF COSTS

It is clear this case raises matters of importance for both sides. In order to allow the question of the orders prohibiting the importation of the first plaintiff's newspaper to be considered as soon as possible, I proposed hearing the applications for judicial review separately from the other reliefs sought in the claim. I also re-arranged my court list so the hearing of the applications could commence on 24 March 2003. On 13 March, with the consent of counsel a very tight timetable was set. It needed the co-operation of counsel if it was to be adhered to and I was happy counsel agreed.

There had been an application by the plaintiff to lift the prohibition orders in the interim. I refused that on the basis that, as the actual application for review could be completed in two or three weeks, it was not appropriate to lift the prohibition at this stage.

In the afternoon of Thursday 20 March 2003, the defendants filed an application for security for costs and an accompanying order that, in the event that it is not paid, the proceedings should be stayed.

The grounds for the plaintiffs' application were based on the status of the first plaintiff. It is clear it is a company that is not registered in Tonga and which has no licence to trade in Tonga. The inquiries of junior counsel for the plaintiff could establish no asset base in Tonga. On the other hand, it is not disputed that a business licence was issued in the name of the CEO of the first plaintiff and marked "Taimi 'o Tonga".

It seems unfortunate to have such an application filed at that stage in the proceedings when considered against the background of the need to act expeditiously if the hearing date was to be maintained. The original claim and ex parte application were filed on Thursday 6 March 2003. On the same day I ordered that the parties all be notified that the application would be heard inter partes on Monday 10 March.

It is clear that the newspaper and the personnel involved in its production are well known to the defendants. Whether they knew of the actual position of the first plaintiff I do not know but it would have been expedient, if they did not, to have made immediate inquiries. The fact it was not done at that time suggests they were aware of the status of the newspaper and its relationship to the plaintiffs.

On that basis alone, I would be reluctant to make an order for security so late in the progress of an agreed timetable.

However, I also bear in mind that this is not a normal action between two private individuals where a defendant who claims he is being wrongly pursued seeks protection in terms of possible costs.

This case is the result of the action of the defendants. In terms of the orders prohibiting the importation of the newspaper, the present plaintiffs are effectively the defendants but, in the face of a fait accompli, their only recourse was to bring an action. In those circumstances it ill behoves the defendants to raise it for the first time so late in an agreed timetable knowing the result, as the first plaintiff will need to produce the security from abroad, is almost inevitably to delay the next step in an action both sides have agreed should be heard as soon as possible.

I therefore have refused to order payment of security for costs.

NUKU'ALOFA: 25^th March, 2003

CHIEF JUSTICE