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Pohiva v Solomon [2009] TOCA 18; AC 18-2009 (10 June 2009)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

AC 18 of 2009

BETWEEN:

1. SIOSIUA PO’OI POHIVA
2. LAUCALA POHIVA
3. FALISI TUPOU
Appellants

AND:

ROBERT ALEXANDER SOLOMON
Respondent

BEFORE THE HON. CHIEF JUSTICE FORD

Counsel: Mr. Tu’utafaiva for the appellants and Mr. Afeaki and Mrs. Faka’osi for the respondent.

Date of Chambers hearing: 10 June 2009
Date of Ruling: 10 June 2009

RULING

[1] The respondent has applied for an order setting aside orders I made on 8 and 13 of May 2009 respectively granting leave to the appellants to appeal out of time; to appeal against an interlocutory order and granting a stay of the proceedings before the Supreme Court pending the determination of the appeal in the Court of Appeal.

[2] The application had been set down for a Chambers hearing on 3 June 2009 but at that hearing junior counsel for the respondents sought an adjournment for another week to allow senior counsel from New Zealand to be present. The adjournment was granted.

[3] At the Chambers hearing on 10 June I heard submissions and indicated to counsel that I had earlier read the extensive written submissions filed by the respondent. The thrust of Mr Afeaki's submissions were that his client had not been given the opportunity to be heard on the applications. It was contended that the orders were consequently "erroneous in law, contrary to natural justice and unfair and unreasonable."

[4] Although it is conceded that a hearing would have been desirable, the rules do not require such a hearing. There was particular urgency associated with the appellant's application for leave to appeal and the stay order because the Court of Appeal session for 2009 is set down to commence on 29 June and the cases to be included in the list were in the process of being finalised. The call-over for the 2009 Court of Appeal session had been held back on 9 April. As soon as the final fixture list had been confirmed, the relevant documentation had to be dispatched to the appeal judges in Australia and New Zealand. Time, in other words, was at a premium. The few weeks leading up to the Court of Appeal session each year is invariably the busiest period for the court staff.

[5] The other factor, relevant to the stay application, was that a receiver had been appointed on behalf of the respondents and he was taking active steps to execute the judgment the appellants sought leave to appeal against. Unless the applications were acted on promptly the object of the appellant's appeal could well have been nullified.