Pacific Games Council v Kingdom of Tonga [2018] TOSC 57; CV 16 of 2018 (26 October 2018)

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

CV 16 of 2018

BETWEEN: PACIFIC GAMES COUNCIL

First Plaintiff

TONGA SPORTS ASSOCIATION AND NATIONAL OLYMPIC COMMITTEE

Second Plaintiff

AND: THE KINGDOM OF TONGA

Defendant

BEFORE LORD CHIEF JUSTICE PAULSEN

Counsel : Mr. T Castle and Mr. W Edwards for the plaintiffs
Dr. R Harrison QC and Ms. S T Moa for the defendant

Hearing : On the papers
Date of Ruling: 26 October 2018

RULING ON APPLICATION FOR ADJOURNMENT

The application

[1] This is an application by the plaintiffs for an adjournment of the hearing of the defendant’s application to strike out or stay this action, for further particulars and security for costs (the omnibus application) which is presently scheduled for hearing on 1 November 2018. An adjournment is opposed by the defendant.

The background

[2] This action was commenced on 15 May 2018.

[3] The omnibus application was filed in lieu of a statement of defence on 24 July 2018.

[4] At a hearing in Chambers on 3 August 2018, I timetabled the filing of the plaintiffs’ opposition to the omnibus application and set it down for hearing on 18 October 2018. In selecting that date I made an error as Dr Harrison had advised the Court that he was not available on certain dates in October. By consent, on 6 August 2018 the date of hearing was changed to 1 November 2018.

[5] The plaintiffs filed their opposition to the omnibus application on 12 September 2018.

[6] On 24 October 2018, the plaintiffs filed this application for an adjournment.

[7] I issued a minute directing the defendant to file any opposition to the application for an adjournment by 26 October 2018 and indicated also that I would deal with the matter on the papers today.

[8] The defendant’s Counsel filed a memorandum on 25 October 2018 advising that the application for an adjournment was opposed and setting out the reasons for the defendant’s stance.

The grounds

[9] To date the plaintiffs have been represented by Mr. Edwards and he continues to act. They have also now instructed Mr. Castle to be Lead Counsel. In a memorandum to the Court of 18 October 2018, Mr. Castle states that he accepted instructions from the plaintiffs on Sunday, 14 October 2018 and that he advised the defendant’s Counsel of this on 16 October 2018 along with a request for an adjournment of the 1 November 2018 hearing pending the plaintiffs providing further particulars of the claim and his ‘full consideration of the case’. Mr. Castle cannot travel to Tonga to argue the omnibus application on 1 November 2018 as he is having surgery in New Zealand.

[10] Aside from Mr. Castle’s unavailability, the plaintiffs argue that the 1 November 2018 hearing is premature and may well be unnecessary because:

(a) The plaintiffs will provide further particulars of their claim, which the Court should have before considering the strike out application;

(b) The defendant may choose not to pursue the strike out application once the particulars are provided; and

(c) The plaintiffs will provide security for costs on a voluntary basis.

[11] The plaintiffs contend that the defendant cannot possibly be prejudiced by an adjournment as they are prepared to consent to a stay of the action pending the provision of further particulars, the defendant’s Counsel is travelling to Tonga on other business on 1 November 2018 in any event and appropriate timetabling orders can be made to ensure the orderly disposition of the proceeding.

[12] The defendant’s oppose the application for an adjournment on grounds that can be summarised as follows:

(a) The plaintiffs should not secure an adjournment by instructing Counsel who they know is unavailable nor should Counsel in such circumstances accept instructions;

(b) The application is premised on a false assumption that the provision of particulars will (or may) stave off the strike out application;

(c) The plaintiffs’ claim is fundamentally flawed and that issue needs to be addressed before the Court considers further steps in the proceeding;

(d) The defendant will be prejudiced by an adjournment because whether or not the defendant’s Counsel has other matters before the Court on 1 November 2018 he will inevitably have to make an additional trip to Tonga, incurring not only financial cost but ‘dead time” and inconvenience;

(e) The Court has set other matters down to be heard on 1 November 2018 specifically because they are related proceedings; and

(f) Although promising in its notice of opposition to provide security for costs there has been ‘complete inaction’ on the plaintiffs’ part in this regard and the amount proposed as security is inadequate.

Discussion

[13] Counsel for the plaintiffs did not refer me to any particular rule that is relied upon in seeking the adjournment. The application states that the adjournment is sought in the interests of justice and that there is no prejudice to the defendant.

[14] The Court undoubtedly has inherent power to control its own procedure and such power should be exercised in a manner that primarily does justice between the parties whilst recognizing also the financial and practical constraints under which the Court operates.

[15] I am satisfied that an adjournment should not be granted for the reasons that follow.

[16] First, the fact that the plaintiffs have, at what must be considered the eleventh hour, instructed Lead Counsel is not a reason to grant an adjournment in the particular circumstances of this case. Mr. Edwards has been dealing with the case since it was commenced. He prepared the claim and the opposition to the omnibus application. He is a senior practitioner quite capable of arguing the omnibus application. The plaintiffs are not in a position where, should the adjournment not be granted, they will not be adequately represented.

[17] The omnibus application was filed three months ago. The hearing date was allocated by consent. The plaintiffs have had time to instruct Lead Counsel if that was their wish. When they instructed Mr. Castle they were clearly aware that he was not available to deal with the omnibus application on 1 November 2018. I agree with the submission advanced by Dr. Harrison that a party should not secure an adjournment by instructing Counsel who is known to be unavailable for an allocated hearing date.

[18] I also agree with the defendant’s submission that in so far as this application is premised on the assumption that the omnibus application is premature it is misconceived. Upon my assessment of the material that is before me, the provision by the plaintiffs of further particulars of their claim will not stave off the strike out application because the defendant is contending that the claim is fundamentally flawed. The application for strike out can, and should, be dealt with notwithstanding the plaintiffs’ intention to provide particulars.

[19] There will be prejudice to the defendant if an adjournment is granted in terms of additional expense and inconvenience. Whilst the defendant may be compensated in costs this is a most relevant consideration in a case like this where the arguments in favour of granting an adjournment are weak.

[20] There are other factors that weigh against granting an adjournment. First, this action is a matter of public importance and interest. It should be dealt with as speedily and inexpensively as the interests of justice allow. Secondly, it is apparent from Mr. Castle’s memorandum that he is yet to give his full consideration to the case. Consistent with that, the timetable that has been proposed by the plaintiffs is an extended one that the Court would not sanction. Thirdly, the Court does not have unlimited resources and is not always able to provide alternative dates when it suits parties. Based on the Court’s commitments next year, if the hearing does not proceed on 1 November 2018 there is likely to be a considerable delay before a new date can be given. Finally, leaving aside the issue of whether this and the other matters set down for 1 November 2018 (CV 1 and 2 of 2018) are ‘related’ in a legal sense, it is the case that the Court set all applications down to be heard on the same day because it was thought there was a relation between them as well as practical and economic advantages in doing so.

Result

[21] The plaintiffs’ application for an adjournment of the omnibus application is refused.

[22] Costs are reserved.

O.G. Paulsen
NUKU’ALOFA: 26 October 2018. LORD CHIEF JUSTICE