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'Utoikamanu v Lali Media Group Ltd [2003] TOLawRp 13; [2003] Tonga LR 184 (1 April 2003)

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

CA 4/2003

'Utoikamanu

v

Lali Media Group Ltd

Burchett, Tompkins, and Beaumont JJ
27 March 2003; April 2003

Practice and procedure – leave to appeal preliminary interlocutory order – dismissed

The respondents were granted an interlocutory grant of leave to seek relief by way of judicial review. The appellants applied for an application for leave to appeal against that grant.

Held:

1. A grant of leave to appeal against a preliminary interlocutory order giving a party leave to seek relief by way of judicial review must be rare. For the remedy would ordinarily be to oppose the substantive relief sought, and if that was allowed, to appeal the question of its allowance. If the relief were in the event to be refused, any appeal against the grant of leave would become academic. Pursuance of the ordinary course will thus generally tend to reduce the number of appellate proceedings required, and avoid unnecessary expense. There was nothing about the case to require a departure from what was the ordinary course, particularly as the substantive proceeding had already been heard and judgment in it was pending. Therefore the court dismissed it with costs.

Statutes considered:

Court of Appeal Act (Cap 9)

Rules considered:

Court of Appeal Rules

Counsel for applicants: Mrs Taumoepeau
Counsel for respondents: Mr Harrison QC

Judgment

This is an application for leave to appeal against an interlocutory grant of leave to the Respondents to seek relief by way of judicial review. By virtue of s 15 of the Court of Appeal Act and Rule 3 of the Court of Appeal Rules, and on the grounds of urgency, the application for leave to appeal is brought before the Court of Appeal in writing without oral argument, two of the judges being in Australia and one in New Zealand. Written submissions have been forwarded to the members of the Court. No question has been raised as to the availability of this procedure.

Meanwhile, the leave granted by the Court below has been pursued; an expedited hearing has been held before the Chief Justice; and final decision of the application for judicial review in question has been reserved.

A grant of leave to appeal against a preliminary interlocutory order giving a party leave to seek relief by way of judicial review must, in the nature of things, be rare. For the remedy will ordinarily be to oppose the substantive relief sought, and if that is allowed, to appeal the question of its allowance. If the relief were in the event to be refused, any appeal against the grant of leave would of course become academic. Pursuance of the ordinary course will thus generally tend to reduce the number of appellate proceedings required, and avoid unnecessary expense.

We see nothing about this case to require a departure from what we have called the ordinary course, particularly as the substantive proceeding has already been heard and judgment in it is pending.

Therefore, and without needing to consider any other objection to the application made to us, we dismiss it with costs.