IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

AC 08 of 2008

BETWEEN:

DAVID WAYNE PARRISH
Appellant

AND:

1.	THOMAS RUSH
2.	TERRY BAIZE
3.	SCOTT REESE
4.	JEANETTE GRANT
Respondents

Coram	:	Burchett J
Salmon J
Moore J

Counsel:	Mr Afeaki & Ms Rosamond Bing for the Appellant 
Mr Niu for the Respondents

Date of hearing 	:	17 July 2008. 
Date of judgment 	:	25 July 2008.

JUDGMENT OF THE COURT

[1]	This is an appeal against a decision of Andrew J given on 8th April 2008 in which he refused the appellant’s application for an adjournment of a trial due to commence on the 7th April and dismissed the appellant’s proceedings. 

Background

[2]	The appellant’s proceedings were issued in December 2006. The appellant claims that, in breach of the management agreement entered into between him and the first, second and third named respondents the respondents purported to dismiss him as manager of the Mala Island Resort in Vava’u.

[3]	He also claims that the respondents were responsible for the laying of a number of criminal charges against him all of which were later dismissed. He claims that he was wrongfully evicted from the resort and has suffered loss of possessions and income. Finally he claims an entitlement to unpaid remuneration and repayment of loans to the business. 

[4]	In his prayer for relief he claims a number of declarations and damages of almost $700,000. 

[5]	Contemporaneously with the issue of the proceedings the appellant applied for an ex parte injunction seeking orders that had the effect of restoring exclusive occupation of the Resort to him. The injunction was granted by Ford C.J. on 18 December 2006. Prior to 8 April 2008 no application was made by the Respondents to rescind the injunction. 

[6]	To complete the background narrative we note that the appellant was ordered to have certain accounts audited by a named Tongan Accountant. The plaintiff claims that despite filing a notice of opposition to the making of this Order he was not heard by the Court. 

[7]	The appellant’s application for an adjournment was made on medical grounds. He suffers from asthma. On the 6th February 2008 he suffered a near death asthma attack at Vava’u Hospital, and about three weeks later suffered a further serious attack which again led to his admission to hospital. 

[8]	In mid March of 2008 he travelled to Australia for medical examination. An imaging report was made available to counsel but it was not possible to obtain a report from the specialist consulted because he was out of Australia. 

[9]	The appellant’s health continued to give problems and at the end of March he was seen by Dr ‘Alani Tangitau Chief Medical Officer at the Hospital in Vava’u. It was decided that he needed to travel to New Zealand for specialist medical advice and treatment. His condition was stabilised sufficiently by the use of an aggressive drugs regime for him to travel by air to New Zealand on the 2nd April. 

[10]	On the 4th April he obtained a medical letter of examination from Dr R Rax of the Hauraki Medical Centre in Auckland. Dr Rax described the appellant as having asthma which was probably in the top 5% of severity and said he was not fit to travel or attend Court. He recorded that he had referred the appellant to a specialist because of the severity of his asthma.

[11]	Further medical reports were obtained which will be referred to later in this judgment. 

The hearing in the Supreme Court

[12]	Andrew J heard the application for adjournment on the 4th April the Friday before the trial was due to commence. He had before him a letter from Dr ‘Alani Tangitau dated 31 March 2008 recording an admission on 6 February 2008 when the Appellant almost died. He said "Due to the severity of his asthma attacks, he’s requesting to have further medical treatment abroad and I do support his intention". The judge also had a certificate given to Air New Zealand stating that immediately prior to his flight the Appellant was suffering from only mild asthma. The Judge had also been given the imaging report obtained while the Appellant was in Australia earlier in March. On the basis of this information the Judge refused the application for adjournment but gave leave for further medical evidence to be presented on the 7th April. On Monday counsel presented the Judge with the report from Dr Rax dated 4th April 2008 which counsel received on the afternoon of the 6th April. The Judge heard further extensive submissions from counsel for the parties and advised that he would give a decision on the morning of the 8th April. 

[13]	In his judgment of the 8th April the Judge noted the appellant’s failure to comply with two orders requiring accounts for the period "19 December 2006 to date" to be audited. The appellant through his counsel claimed that there was good reason for that failure. After considering the medical reports and a good deal of hearsay evidence given by counsel the Judge concluded that the medical reports were "dubious", that the appellant was contemptuous of court orders and was misusing the Court for his own ends. He dismissed the proceedings and awarded costs to the respondents. 

[14]	The appellant filed an immediate application for a stay on the grounds that an appeal was to be lodged. Later the same day the Judge refused the stay and vacated the order made in December 2006. 

Further evidence

[15]	Subsequent to these decisions further medical reports were obtained. Late in the afternoon of the 8th April counsel received a report from Dr Jeff Garrett a highly experienced and respected specialist in respiratory medicine. Dr Garrett set out in some detail the appellant’s recent respiratory history and described him as having developed a severe and prolonged exacerbation of asthma associated with intense inflammation within his airways. He said that he needed to remain in Auckland during the next two weeks at least to allow the intense inflammation and bronchial hyper reactivity to begin to settle. 

[16]	There was also a further report of the same date from Dr Rax responding to some criticism from Andrew J. He noted that the appellant had only been able to fly to New Zealand as a result of being on large doses of steroid medication, which is not sustainable for long periods. 

[17]	There were further reports from Dr Tangitau, Dr Alamea who had treated the appellant in February and from Dr Garrett. Mr Niu conceded at the hearing before us that these additional reports clearly established that the appellant had been very ill and that the proceedings should be reinstated and a new date should be set for the hearing. 

Issues in this Court

[18]	This concession left just two issues for consideration. The first was whether we should also reinstate the injunction which was discharged by Andrew J on the 8th April. Mr Afeaki for the appellant submitted that we should do so in order to restore the status quo. We decline to make any order relating to the injunction. The situation has changed since April. The respondents have employed a Manager and the appellant who is still in New Zealand receiving treatment is at present unable to resume management. If the question of management cannot be resolved by agreement this issue must be determined by a Supreme Court Judge preferably the Chief Justice who is already familiar with this issue. 

[19]	The other issue is costs. There are two costs issues. The first concerns the costs associated with the adjournment. Mr Niu agreed that these should be treated as costs in the cause and their incidence should depend on the outcome of the proceedings. 

[20]	The other question concerns the costs of this appeal. 

[21]	Mr Niu was happy for these, too, to be treated as costs in the cause but Mr Afeaki submitted that his client should receive an award of costs because the Judge’s decision should be reversed. As to this issue we have already noted Mr Niu’s concession that the proceedings should be reinstated. Whether or not we conclude that the Judge exercised his discretion correctly in refusing the adjournment we have no doubt that we should allow the appeal on the basis at least of the further medical material before us. This is a case where we should admit that further material which was clearly not available (at least for the most part) at the time of the hearing. 

[22]	In the light of Mr Afeaki’s submission however it is necessary for us to consider whether we need to make a finding as to the correctness of the Judges decision. For the reasons appearing later in this judgment we have concluded that it is not necessary to make such a finding but we do think it necessary to make some observations. 

[23]	We can understand the judge’s refusal to grant an adjournment on the 4th April. The information then available was at best equivocal as to the appellant’s condition. We would not be justified in reversing the decision he made on that day. 

[24]	The situation changed on Monday when he received Dr Rax’s report. In our view it was not appropriate to describe that report as dubious. Additionally the Judge was aware that Dr Rax had referred the appellant to a specialist. He should have explored the possibility of delaying a final determination until that report was available. 

[25]	However we have decided for the reasons below that the respondents are entitled to costs on this appeal. Because of the fresh evidence led in the appeal, we now know that the appellant was extremely ill at about the time the trial was due to commence. The trial could not commence because the appellant was unable to attend court. There were two reasons why he was unable to attend. As Dr Rax noted in his report of 4 April 2008, he was too ill to return to Tonga by air from New Zealand. For that reason he was unable to attend the trial. But, in addition, he was too ill to attend the trial in any event. That was the opinion of Dr Rax.

[26]	The application to adjourn the trial was not made until 2 April 2008. Necessarily both the respondents to this appeal and the Court had to deal with the application under extreme pressure. The respondents, through their counsel, have quite properly and fairly conceded in this appeal that the trial could not have proceeded on 7 April 2008 because of what they know now about the ill health of the appellant. It is probable that concession would also have been made if the true position about the appellant's health had been made known to the respondents in sufficient time before the trial was to commence.

[27]	The explanation given by counsel for the appellant for not making the application to adjourn the trial any earlier, was that the appellant was not sure he would be able to secure a seat on a plane to leave Tonga for New Zealand. However that is a false issue. Whether he could or could not get on a plane before 2 April 2008 has no bearing on whether he was too ill to attend the trial. If he was too ill to attend the trial in the weeks before it was scheduled to commence, no reason has been given as to why he could not have secured medical opinions to that effect in Tonga. His medical condition was well known to his treating doctor in Tonga and, in any event, another doctor could have examined him and formed an opinion about his inability to attend the trial having regard to his medical records including hospital records relating to his hospitalisation in February and March 2008. This was not done. 

[28]	Rather, without notice to the respondents or the Court, the appellant left Tonga. Not until that had occurred, was the adjournment application made. There was no reason, in our view, why the adjournment application could not have been made earlier and in sufficient time to enable both the respondents and the Court to consider, in a measured and unpressured way, medical evidence establishing that the appellant was unable to attend the trial. If that had been done then in all probability, the concession now made by the respondents in this appeal, would have been made by them before the Supreme Court. In the result, the matter would have been adjourned by consent and the appellant could have left Tonga for treatment secure in the knowledge that the trial would not proceed. However he and his lawyers elected to follow a different course. The respondents should not be penalised by their decision. The respondents are entitled to their costs of the appeal.

[29]	For all the above reasons the appeal is allowed. The proceedings are reinstated and should be heard as soon as the parties are available. The respondents are entitled to the costs of this appeal. Costs of the adjournment, as we have said, should be costs in the cause. 

Burchett J
Salmon J
Moore J