IN THE SUPREME COURT OF TONGA
Court of Appeal, Nuku'alofa

CA 02/2002

Hausia

v

Fatongiatau anors

Burchett, Tompkins, Beaumont JJ 
16, 17 July 2002; 23 July 2002 

Criminal procedure – settlement without consent – new trial ordered as to liability 

The facts of this case are set out at Fatongiatau v Hausia [2001] Tonga LR 252. 

The appellant sought orders first, that the orders made by the Supreme Court be set aside; and, secondly, that the matter proceed for re-trial in the Supreme Court. The grounds of appeal stated in the notice of appeal were the "admission" of liability, any negotiations and the entry of judgment, all occurred without the appellant's knowledge or consent; the appellant denied that he committed the assault complained of; and before the case was heard, the appellant and the alleged victim had "agreed that the matter would be discontinued". It was submitted on behalf of the appellant that, in the absence of evidence of his consent to any settlement, and because he was not given an opportunity to be heard before the trial judge, the orders made on 9 August 2001 should be set aside, and a fresh trial ordered.

Held: 

1. The court made orders (with no objection from the parties) that, as against the appellant, the judgment be set aside; that there be a new trial of the matter, limited to the issue of the appellant's liability (ie, the appellant, and the Crown parties accepted that, if the appellant's liability was established on the new trial, the findings of the trial judge on the amount of damages would stand); and that the costs of the new trial should abide the discretion of that trial judge in the ordinary way. The court, in the extraordinary circumstances of the case, acceded to the parties' joint invitation to allow the appeal on this basis. They were the appropriate orders to be made in the interests of justice in order to correct the procedural error, which occurred without the knowledge of the Supreme Court. 

2. The second and third respondents were to pay the appellant's, and the first respondent's, costs of the appeal. 

Case considered: 
Fatongiatau v Hausia [2001] Tonga LR 252 

Counsel for appellant: Mr Niu 
Counsel for first respondent: Mr Fifita 
Counsel for second and third respondents on 16 July 2002: Mrs Folaumoetu'i 
Counsel for second and third respondents on 17 July 2002: Mr Pouono

Judgment

INTRODUCTION

[1] By his notice of appeal, the appellant, Lolesio Hausia, appeals from orders made by the Supreme Court (Ward CJ) on 9 August 2001 ([2001] Tonga LR 252), relevantly in these terms:- 

"Having heard counsel 

It is ordered that:- 

The plaintiff Sione Fatongiatau (that is to say, the first respondent on the appeal) is awarded damages of 

$3,000 for assault.

$4,000 exemplary damages, i.e. $7,000 in all and costs

......." 

[2] By his notice of appeal, Mr. Hausia cites the following extract from the Court's reasons for judgment dated 9 August 2001:- 

"This is a claim for damages for assault for which the defendants being Mr. Hausia, the Minister for Police (the second respondent on the appeal) and the Kingdom of Tonga (being the third respondent on the appeal) have admitted liability. However, the parties have failed to come to an acceptable settlement and so the court has now to determine the appropriate quantum of damages ... (which his Honour then proceeded to fix in the amounts specified above in the order dated 9 August 2001). [Emphasis added.] 

[3] By this appeal, Mr. Hausia now seeks orders, first, that the orders made by the Supreme Court be set aside; and, secondly, that the matter proceed for re-trial in the Supreme Court. The grounds of appeal stated in the notice of appeal are, in essence: 

1. The "admission" of liability, any negotiations and the entry of judgment, all occurred without Mr. Hausia's knowledge or consent. Moreover, Mr. Hausia denies that he committed the assault complained of. 

2. Before the case was heard, Mr. Fatongiatau and Mr. Hausia had "agreed that the matter would be discontinued". 

[4] The appeal has some extraordinary procedural aspects, which are best explained in the parties' own language, as follows. 

MR. HAUSIA'S ARGUMENT IN SUPPORT OF HIS APPEAL

[5] The skeleton argument of Mr. Niu, counsel for Mr. Hausia on the appeal, first recites a chronology of events to the following effect: 

• 25 March 1999: Alleged assault by Mr. Hausia on Mr. Fatongiatau. 

• 3 March 2000: Mr. Fatongiatau files writ and statement of claim against the Minister of Police and the Kingdom of Tonga (only). 

• 10 April 2000: The Minister and the Kingdom of Tonga file statement of defence, denying assault of Mr. Fatongiatau by Mr. Hausia. 

• 13 June 2000: Chambers direction (by Ward CJ) that Mr. Fatongiatau join Mr. Hausia as first defendant. 

• 19 June 2000: Mr. Fatongiatau files amended statement of claim, joining Mr. Hausia, but otherwise pleading as before. 

• 20 October 2000: Chambers direction that the defendants file amended defence. 

• 23 October 2000: Amended defence filed by the Crown on behalf of all defendants, in terms almost identical with earlier defence. [Emphasis added.] 

• 31 October 2000: Mr. Fatongiatau's counsel, Mr. Fifita, files certificate of readiness, stating that the case "is ready to proceed to trial"; and further stating that – 

 "... instructions from (Mr. Fatongiatau) who is or has been in ... Police custody, (are) that the defendants threatened him to withdraw this case. The senior police officers instead of taking action against (Mr. Hausia), pressed (Mr. Fatongiatau) not to seek his rights in this court. I personally informed my learned friend for the defendants in Court today but he ignores it. In the circumstances I pray that this case be heard at the earliest convenience of the Court." 

• 17 November 2000: Trial fixed to commence on 28 May 2001. 

• February 2001: Settlement negotiations take place between Mr. Fifita and Mr. Tapueluelu (of Crown Law Department) who sign (undated) "Terms of settlement": Subject to Cabinet approval, a figure of $3,000, inclusive of costs, is agreed.

• 21 March 2001: Mr. Fatongiatau writes to the Registrar, stating (as in the translation) that he had been "seized by Police Officer Lolesio Hausia in regard to housebreaking and theft .... I was so angry with this officer ..." and made a claim in 1999 through his lawyer, Teisina Fifita. Afterwards, in 1999, he "contacted (Mr.) Fifita again in 1999 to withdraw the case and also to strike it out as I have made up with (Mr.) Hausia and I don't want to pursue the case further." The letter went on to state that Mr. Fatongiatau had been "surprised this week when I heard that the case is still on ... I know that it is a claim (on) (Mr) Hausia and (the) Kingdom of Tonga but I did contact (Mr) Fifita in 1999 to str(i)..ke out the claim". The letter requested the Registrar to strike out the case. 

• 23 March 2001: Mr. Fifita, counsel for Mr. Fatongiatau, files a notice of discontinuance in these terms: "The Counsel for the plaintiff humbly advise(s) the Court that this case be withdrawn pursuant to agreement with the Counsel for the defendants in February 2001 that the defendants pay $3,000 to my office, subject to Cabinet approval, as full and final settlement." The notice went on: "The Cabinet has approved such payment on or about 21/3/01." 

• 26 March 2001: A letter is written to the Registrar, Supreme Court (with copies to Mr. Fifita and Mr. Fatongiatau) by Semisi Velelevu Tapueluelu on behalf of the Solicitor-General, referring to Mr. Fatongiatau's letter dated 21 March 2002, stating – 

"With regard to a letter from the Plaintiff (in person) – re the above case, where he states that he has instructed his lawyer, Mr. Fifita, to discontinue with this suit – as early as 1999. In contrast to these revelations – Mr. Fifita has continued with proceedings and has communicated to counsel of his client's intentions to not only prosecute, but as has now transpired – to come to an out-of-court settlement.  

The aforementioned letter could change things somewhat, as the possible permutations it points to are as follows: a) Mr. Fifita has acted without authority or instruction from his client; or b) that Fatongiatau has been put under duress to change his mind and write the letter. You may note that Fatongiatau is currently at his Majesty's pleasure – at the Police Training School.  

The first permutation concerning Mr. Fifita would, it is submitted, undermine the purported settlement as it stands and there are ample grounds to cancel it so that the Government does not lose money needlessly.  

We would ask that this matter be called for Chambers as soon as possible for clarification of the Plaintiff's position." 

• 29 March 2001: Mr. Fifita writes to the Registrar (with a copy to counsel for the defendants) referring to the Solicitor General's letter, stating – 

"I accepted to prosecute this case in 2000 after making inter alia, agreement that I would borrow money to run the case with. The filing and services of documents were all in 2000. The first defendant was personally served with the Writ and Statement of Claim on 23.07.2000. 

I have documents signed by the plaintiff in October 2000. I was instructed at all times by my client. Even to the time of accepting the settlement agreement with the defendants on early February 2001.  

On 06.03.01 I informed my client of the said settlement and it was only awaiting Cabinet approval. This was in the presence of Deputy Commander Faletau Taniela.  

On 21.03.01 the Cabinet approved the payment of the said agreement. On 22.03.01 I was contacted by a person from Police Training School saying that my client wanted some money ... for the weekend at Fire Station.  

On 23.03.01 my client called me and asked for the money from the case. After being informed that I haven't got it, he instructed me to take appropriate steps to get the money. I then contacted Mr. Tapueluelu. My Caller ID identified that number my client called from was 23-424 at 09:56 hrs. The number is not listed in the phone directory but when I checked, it was the Police Training School.  

I now detached my Caller I.D. for any future reference and pray that if there be a chamber for this case then be it as soon as possible." 

• 3 April 2001: Mr. Fatongiatau replies to Mr. Tapueluelu's letter dated 26 March (with copies to the Registrar and Mr. Fifita), confirming his wish to discontinue his claim. 

• 12 April 2001: Chambers hearing at which Mr. Fifita appeared for Mr. Fatongiatau and Mr. Tapueluelu for the defendants. Ward CJ shown above correspondence, expresses concern and directs that parties, including Mr. Fifita, be interviewed by Mr. Lea'aevai Fua (Ministry of Justice). Fixture on 28-29 May vacated.  

• 20 – 22 April 2001: Mr. Fua interviews Mr. Fatongiatau, Mr. Fifita and Mana Kaufusi (the witness to Mr. Fatongiatau's signature on letters withdrawing claim.) 

• 1 May 2001: Chambers Hearing; Mr. Fifita for Mr. Fatongiatau, Mrs Simiki now for the defendants. Mrs Simiki informs Ward CJ that there had been an offer to settle of $6,000 (by Mr. Fatongiatau) and that she needed to take further instructions.  

• 2 May 2001: Chambers Hearing, appearances as before Mrs Simiki informs Ward CJ that liability is admitted and there will be a trial on quantum only. This trial is then fixed for 3 August 2001.  

• 3 August 2001: Hearing in open Court on quantum. Judgment reserved.  

• 9 August 2001: Ward CJ awards Mr. Fatongiatau $7,000, and costs.  

• 28 September 2001: Mr. Hausia applies for leave to appeal out of time, supported by his affidavit sworn 28 September 2001 stating, inter alia, that he was not informed about the date (9 August 2001) when the judgment was given, and that "(i)t was not until some time after the judgment when I found out in (local) newspapers that ... the action had already been decided ... against me ...". 

• 25 October 2001: Ward CJ grants leave to appeal out of time.  

[6] In the light of these events, it is then submitted on behalf of Mr. Hausia that, in the absence of evidence of his consent to any settlement, and because he was not given an opportunity to be heard before Ward CJ, the orders made on 9 August 2001 should be set aside, and a fresh trial ordered. 

MR. TAPUELUELU'S AFFIDAVIT 

[7] After Mr. Niu had filed his chronology, an affidavit was sworn by Mr. Tapueluelu and filed on 15 July 2002, stating: 

"1. I was the original counsel for the Defendants when the Statement of Claim was filed and served by the Plaintiff through his counsel on 6th March 2000. The Claim alleged that the Plaintiff had been assaulted by the First Defendant whilst he was in custody at the Central Police Station. 

2. At the time, I was Crown Counsel, working for the Crown Law Department. 

3. After filing statements of Defence in April and October 2000, I received a copy of a medical report about the Plaintiff from his counsel, which was written on the day after the alleged assault, by Dr Maletino Mafi. 

4. The report highlighted injuries to the face and body, which the doctor opined was caused by an assault. I subsequently interviewed Dr Mafi at his residence at the end of October 2000 and he re-confirmed his opinion about the Plaintiff's injuries. 

5. At around the same time, I also re-interviewed the First Defendant and another officer, 'Inoke Folau, who was also present at the time the Plaintiff alleged that he was assaulted. 

6. Both the First Defendant and Folau denied causing the injuries when I confronted them with the medical report. This was consistent with what they had told me when I had first interviewed them. However, as I questioned them further, both admitted that an assault may have taken place, but denied any participation and instead alleged that the other had committed the assault in the other's absence. 

7. After these interviews, I formed the opinion that the Plaintiff had been assaulted and that the assault had taken place at the Station at the time alleged by the Plaintiff. In any case, it was my opinion that given the evidence, a successful Defence could not be undertaken. 

8. As a result of this, I began corresponding with counsel for the Plaintiff with regard to the settlement of the Claim. A figure of $3000.00 was agreed to as full and final settlement. The terms of settlement document were drawn up and signed by both counsel and filed with the Supreme Court on 1st March 2001. 

9. A Cabinet paper setting out the settlement proposal was submitted to Cabinet in mid-March 2001. Cabinet approval for the settlement was given on 21st March 2001. 

10. On 23rd March 2001, I received a letter dated 21st March 2001 from the Plaintiff, who was in custody at the Police Training School at the time, informing me that he had instructed his counsel not to proceed with the claim. The letter was signed by the Plaintiff and witnessed by a law practitioner, Mana Kaufusi. 

11. As a result, I contacted the Prime Minister's Office on the same day and halted the paying out of any moneys pursuant to the settlement, until such time as the contents of the Plaintiff's aforesaid letter could be verified. A savingram to Paula Ma'u of the Prime Minister's Office on 27th March 2001, formally requested that the settlement not proceed for the time being. 

12. A chambers hearing was called before Ward CJ on 12th April 2001, where the Plaintiff was present. He said that he had not signed the letter (dated 21/02/01) voluntarily and that he was coerced to sign by the First Defendant. He also informed the Court that he had instructed his counsel to proceed with his claim from the outset, right up to the date of the Cabinet decision. 

13. The Chief Justice directed that an investigation be carried out – and that Lea'aevai Fua from the Ministry of Justice should carry it out. 

14. I ceased being employed by the Crown Law Department and the Tongan Civil Service on 25th April 2001." 

ARGUMENT FOR THE MINISTER AND THE KINGDOM 

[8] By Ms Simiki's written skeleton argument dated 15 July 2002, the following is submitted on behalf of the Minister of Police and the Kingdom: 

"1. The Second and Third Respondent did discuss with the Appellant the facts of this matter and it was based on information given to Mr Tapueluelu at the time that a Statement of Defence was made. 

2. After the filing of the Statement of Defence, medical evidence was received regarding the injuries received by the First Respondent. 

3. Mr Tapueluelu re-interviewed the Appellant and another officer who was alleged to be present at time. At the time counsel for the Second and Third Respondent formed the opinion that this matter should be settled because a successful Defence could not be undertaken. 

4. At all times the Statement of Claim alleged that it was only the Appellant that caused injuries to the First Respondent. 

5. The interviews conducted by Mr Tapueluelu with the Appellant and others gave Crown counsel sufficient grounds to form the opinion that there will not be a successful defence and that a settlement agreement between the parties he represented and the First Respondent should be made. The appellant at no point or time prior to this appeal indicated to the Court or to Crown counsel that he wanted to be privately represented. 

6. After Mr Tapueluelu left the country, Ms Simiki took up the case with the understanding that there was a settlement in place. 

7. The settlement amount was raised by the First Respondent and his counsel. Crown counsel got further instructions from her superiors and it was conveyed to the Court that the Crown will go to Court on quantum, due to the fact that we did not agree to the raise in the settlement amount. Liability was admitted by the Crown in this trial based on the information ascertained from the previous Crown Counsel who had handled the case. 

8. At the quantum trial hearing which was on the 3 August, 2001, the First Respondent gave evidence to the Court that it was the Appellant that did cause the injuries to him. The Appellant did not mention any other police officer's name. The Court accepted this evidence. 

9. The right of the appellant to be heard at the quantum hearing was not denied because this trial was an event at the end of a chain of events, in which there had already been discussions between Mr Tapueluelu and the appellant, and there being a medical report verifying the First Respondent's claim. An opinion was formed and carried out by the then Crown counsel that a settlement should be made because a successful defence could not be undertaken. 

10. Crown counsel does not have a duty to advise the appellant that he can get private representation. 

11. Costs of this proceeding should not be borne by the Third Respondent because it was carrying out its duty to the best of its ability and through the understanding that a successful defence could not be undertaken based on the information received by him. The quantum trial was a follow up of those instructions and the opinion formed by Crown counsel that the raised settlement amount is too high." 

ARGUMENT FOR MR. FATONGIATAU 

[9] Mr Fifita, as counsel for Mr. Fatongiatau, has filed a written skeleton, also dated 15 July 2002, as follows: 

"1. In the lower court he acted on bona fide belief that the appellant admitted liability to the said assault.  

2. From the facts subsequent to the judgment appealed, it is clear that the appellant actively participated in the work pertaining to the letters said to be signed by the plaintiff which stated that the plaintiff had instructed his counsel back in 1999 to withdraw the said case.  

3. There was no time prior to 28.09.2001 the appellant ever indicated that he didn't assault the 1st respondent. 

4. The 1st respondent did not agree to withdraw the said case..." 

CONCLUSIONS ON THE APPEAL 

[10] Upon the appeal being called on for hearing, the Court raised with the representatives of the parties whether, given the history of the matter, there was any prospect that, in some areas at least, a measure of common ground could be agreed between them. The parties then sought, and were granted, an adjournment in order that they might explore this. 

[11] Upon the resumption of the hearing, the Court was informed that, with the exception of the question of the costs of the appeal, the parties had no objection to the Court now making orders to the following effect: First, that, as against the appellant, the judgment be set aside; secondly, that there be a new trial of the matter, limited to the issue of the appellant's liability (that is, the appellant, and the Crown parties now accept that, if the appellant's liability is established on the new trial, the findings of Ward CJ on the amount of damages will stand); and thirdly, that the costs of the new trial should abide the discretion of that trial judge in the ordinary way. 

[12] We will, in the extraordinary circumstances of this case, accede to the parties' joint invitation to allow the appeal on this basis. In our opinion, these are the appropriate orders to be made in the interests of justice in order to correct the procedural error, which occurred without the knowledge of the Supreme Court. 

[13] As to the costs of the appeal, the appellant now seeks costs from the respondents. Mr. Fifita, on behalf of Mr. Fatongiatau, opposes the making of such an order. Mr. Pouono, who now appears for the Crown, quite properly in our view, given the status of the Crown as a model litigant, submits to such order for costs as the Court thinks appropriate to make. 

[14] In our opinion, the costs of the appeal should follow the event, with the consequence that the appellant, who has succeeded on the appeal, should have his costs. However, we also agree with Mr. Fifita that Mr. Fatongiatau, as an innocent party in the extraordinary features of the litigious process, should not bear any part of those costs. In our view, they should be wholly borne by the Crown parties given their role in that process. 

ORDERS

Accordingly, we make the following orders: 

1. The appeal is allowed. 

2. As against the appellant, the Judgment of the Supreme Court dated 9 August 2001 is set aside.

3. A new trial is ordered, limited to the issue of the appellant's liability. Costs of such trial to be costs in that cause.

4. The second and third respondents are to pay the appellant's, and the first respondent's, costs of the appeal.