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Flemming v Talagi [2010] NUHC 1; CV 1 of 2010 (20 October 2010)

IN THE HIGH COURT OF NIUE
CV 1/2010

IN THE MATTER

MICHAEL FLEMING
Plaintiff

AND

HON. TOKE TALAGI
First Defendant

AND

NIUE PUBLIC SERVICE COMMISSION
Second Defendant

AND

TAUMALUA JACKSON
Third Defendant

AND

JOHN OPERATOR TIAKIA
Fourth Defendant

AND

CROSSLEY TATUI
Fifth Defendant

AND

ATTORNEY-GENERAL OF NIUE
Sixth Defendant

Telephone

Conference: 20 October&#110 at 6:30 pm (Com (Cook Islands time)

Counsel: Dr G McCoy QC for Plaintiff

Mr D McLure for Defendants

Judgment: 20 October 2010

ter">ORAL JUDGMENT OF P SAVAGE CJ

Solicitors:

P Joseph, Atkins Holm Joseph Majurey, Auckland, New Ze (Phioseph@ahjmlaw.comw.com )

R Wilson and Mr N Cecil, Norton White, Sydney, Australstralia (Robert.Wilson@nortonwhite.com Nathan.cecil@nortonwhite.com )

Copy:

Dr Gerard McCoy QC SC (Gerard.mccoy@giltchambers.com gjxmccoy@xtra.co.nz)

D McLure, Sydney, Australia (mclure@sevenwentworth.com.au )

[1] This is an application to sever causes of action in a civil trial set down for one week in mid-November in Niue. I now have counsel from New Zealand, practising outside it in Hong Kong, and counsel from Sydney. Niue is a remote location. There is one aeroplane in and out of New Zealand a week and that is the total passenger travel available. In those circumstances, we have to be intensely practical. The logistics of launching a major trial in that sort of jurisdiction are difficult indeed. It appears there is little co-operation between counsel, notwithstanding that they are both most senior.

[2] The trial concerns the affairs surrounding the termination of the Plaintiff's contract of employment. It will very much turn on what was said and done, and by whom and to who.

[3] There are seven causes of action. Causes one to five and cause seven have a constitutional public law or contractual background as their basis. Clause six is defamation, and it is that cause that the plaintiff asks me to sever.

[4] I do not intend to give a detailed decision for that would require an examination of matters that have not yet been produced for the present trial, and they have not been presented to me before trial. The matter must be looked at in the round with the trial almost upon us, with travel to be booked and arranged, and I must have the interests of justice in a general sense in the forefront of my mind.

[5] The first thing to be said is that there is no way that the entire trial can be completed in the one week that has been assigned to this matter. I have three options.

1. First, is to abort the trial and set it down at a later date for two weeks. The plaintiff has been waiting months for his trial and he will be waiting many more months before it could be rescheduled. I do not intend to adopt that option. I simply decline to consider it. It is not reasonable in the circumstances.
   
2. The second option, and this is what is contended for by the plaintiff, is that I sever cause of action six and it becomes a separate trial at a later date.
   

100. Thirdly, the defendants request that I hear all matters. That would mean that the trial would be part-heard and heard again months hence.
     

[6] None of the options are particularly palatable. Defence counsel is right, that if severance is granted there will be a degree of repetition because the defamation action and the defences pleaded are heavily interwoven with the other causes of action.

[7] Be that as it may I consider that a decision on causes of action one to five and seven will have the effect of clearing away some of the jungle of issues that beset this case. Cause of action six is quite different in type. It relates to a different timeframe, some weeks after the other causes of action. A part-heard witness action adjourned over a long period is a particularly difficult creature to manage, and to give a decision on it is unhelpful to the plaintiff. In the end and by the nearest of margins I have decided to sever cause of action six, and I now so order.

[8] Counsel are to confer and agree if possible:

1. First, what evidence or parts of evidence admitted at trial on the causes one to five and seven issues are to be admitted in cause of action six (and I am there, perhaps, particularly referring to evidence-in-chief).
   
2. The second matter to be considered is should that defamation action be heard before the same Judge?
   

100. The third matter is that counsel would have to reach some sort of decision on the res judicata implications of the first trial.
     

...........................
P Savage CJ