[2007] Tonga LR 120

IN THE COURT OF APPEAL OF TONGA

Rainbow Trading Co Ltd

v

Lin Maolin anor

Court of Appeal, Nuku'alofa
Burchett, Salmon, and Moore JJ
AC 05/2006

17 July 2007; 20 July 2007 

Civil law – fresh evidence – leave granted to produce evidence – fresh trial ordered 

On 1 September 2006, the appellant was ordered to pay the first respondent $96,502.50. The Court found that the appellant had breached a contract with the first respondent to provide him with goods. The appellant appealed on eight grounds. Broadly, these fell into three categories. The first, second and eighth grounds of appeal were based on the introduction of new or fresh evidence. The fourth, fifth, sixth and seventh grounds of appeal listed errors on the part of the judge in accepting or rejecting particular evidence. The third ground of appeal was that the trial judge erred in concluding that the appellant had represented, by its conduct, that Wang Qiang had authority to act on behalf of the appellant. 

Held: 

1. The common law required in relation to evidence which would have been available at trial, that two conditions be met before it was admitted in an appeal as fresh evidence. The first was that reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the trial. The second was that it must have been reasonably clear that if the evidence had been available at the trial and had been adduced, an opposite result would have been produced or, the opposite result would have been so highly likely as to make it unreasonable to suppose the contrary. However the common law principles were not entirely inflexible and they had as their overriding purpose, reconciling the demands of justice with the policy, in the public interest, of bringing lawsuits to a final end.

2. How the relationship between the first and second respondents should be characterised, as a matter of law, would be a matter for the judge conducting any new trial reviewing all the evidence. During the trial before the Chief Justice (or at least during that part of the trial when the evidence was led), counsel for the appellant misunderstood the case that was ultimately advanced by the first respondent and could not have appreciated the possible significance of that evidence for the case as it was ultimately decided. It was in the interests of justice to admit that evidence in the appeal and order a new trial. The extremely unusual circumstances constituted special grounds.

3. The appellant was granted leave to adduce the fresh evidence, the orders of the Chief Justice were set aside, and the matter was remitted to the Supreme Court for a fresh trial. There was no order as to costs. While the appellant had some success in the appeal by obtaining leave to adduce fresh evidence, the acceptance by counsel for the first respondent of the need for a new trial meant that it was unnecessary for the appellant to demonstrate that the fresh evidence, once admitted, necessarily required a new trial. The order freezing an account of the second respondent was discharged. There was no material that suggested that money in that account was property of the appellant which might be available to ensure compliance with any order requiring the appellant to pay moneys to the first respondent if he was successful at the further trial. The order freezing a sum of approximately $63,000 was not disturbed. 

Cases considered: 
Branir v Owston Nominees (No 2) (2001) 117 FCR 424 
CJD v VAJ (1998) 197 CLR 172 
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 
Jess v Scott (1986) 12 FCR 187 
Prasad v Morris Hedstrom (Tonga) Ltd (No 2) [1993] Tonga LR 68 (CA) 
Wollongong Corporation v Cowan (1955) 93 CLR 435

Rules considered: 
Court of Appeal Rules 1990 

Counsel for the appellant: Mr Niu 
Counsel for the first respondent: Mr Corbett 

Judgment

[1] On 1 September 2006, Chief Justice Webster ordered Rainbow Trading Co Ltd, the appellant in this matter, to pay Lin Maolin $96,502.50. His Honour found that Rainbow Trading had breached a contract with Lin Maolin to provide him with goods. Rainbow Trading appeals on eight grounds. 

Background Facts

[2] The following facts do not appear to be in issue. Rainbow Trading was a company which supplied cigarettes and other goods to shops. The first respondent, Lin Maolin, owned and operated a shop in Nuku'alofa. The second respondent, Wang Qiang (aka Chris Wang), was, at the relevant time, a shareholder, director, secretary and employee of Rainbow Trading. He delivered the goods of Rainbow Trading by van to Lin Maolin and other Chinese shop owners. Though he is a named respondent to this appeal, he did not file a defence and did not enter an appearance. Wang Lan (aka 
Lily) was the managing director of Rainbow Trading and was, until 2 June 2002, a shareholder and director of the company. She was the only witness for Rainbow Trading at the trial and is the aunt of Wang Qiang.

Statement of claim

[3] The following is alleged in the statement of claim (a little later in these reasons, we discuss particular aspects of these pleadings). During 2002 and 2003 Wang Qiang collected $56,893 from Lin Maolin as advance payments for goods which were never provided. During the course of dealing between the parties, Wang Qiang and Rainbow Trading paid Lin Maolin $47,000 which they "later borrowed to buy Winfield [sic]". On Friday 2 May 2003 Wang Qiang asked Lin Maolin to cash a cheque dated 3 May 2003 for $36,000 for him because the bank was not open. On 3 May 2003 the bank was closed and Lin Maolin contacted Chris Wang who came with a cheque post dated 8 May 2003 from Mei Fa Guo. The cheque dated 8 May 2003 was not honoured at which point Lin Maolin rang Wang Lan who sent Wang Qiang to see him. Wang Qiang came, promised to pay on the following day and took the cheque which Lin Maolin claims was later given to the cigarette importer TCF International. Subsequently Wang Qiang gave Lin Maolin goods valued at $1,366.50 and requested further goods valued at $4976 whilst assuring Lin Maolin of the further delivery of goods and repayment of $36,000. 

The conduct of the trial and the reasons for judgment of the Trial Judge 

[4] The Chief Justice treated the central issue as being whether it appeared to Lin Maolin that Wang Qiang had ostensible authority to take advance payments for goods, including amounts over $500, with the result that Rainbow Trading was bound by the actions of Wang Qiang as its agent and was therefore in breach of its contract. In his reasons the Chief Justice set out the law on agency and discussed some of the authorities before turning to consider how those principles might be applied to the facts. It is unnecessary to detail either his Honour's analysis of the legal principles or their application to the facts. What is important is the course the proceedings took. 

[5] The amended statement of claim pleaded who the plaintiff was, and what the relationship was between the second defendant (Rainbow Trading) and the first defendant (Wang Qiang). In paragraph 9 of the statement of claim there was an allegation that the plaintiff (Lin Maolin) paid to the first defendant (Wang Qiang) $56,893 as the employee and agent of the second defendant (Rainbow Trading). In paragraph 17 there was a general allegation that "the obtaining of" the sum of $56,893 and the sum of $36,000 were each prearranged with the full knowledge, concurrence, participation, and involvement of the second defendant (Rainbow Trading). A particular of paragraph 17, 17(d), alleged that the first defendant (Wang Qiang) had ostensible and apparent authority as an officer of the second defendant (Rainbow Trading) namely the director and shareholder of the second defendant. It can be seen that these aspects of the statement of claim point to the possibility that the plaintiff's cause of action was based in contract and alleged that Wang Qiang was Rainbow Trading's agent and that Rainbow Trading was contractually bound by agreements he entered. However this was far from clear from the pleadings.

[6] When opening Lin Maolin's case at the trial conducted in November 2004, counsel concluded by saying that the second defendant (Rainbow Trading) was vicariously liable for the payment of $96,502. He also said that "it is claimed that the second defendant is vicariously liable for the actions of its employees". The expression "vicarious liability" is an expression used in the context of tort law and not contract law. While counsel for Lin Maolin may not have appreciated this distinction, it fairly clearly appears to have led to a misunderstanding on the part of counsel for Rainbow Trading. 

[7] In opening the case of Rainbow Trading at the trial, its counsel said: In respect of any grounds of claim, my understanding of the pleadings by the plaintiff is that it did not allege any breach of contract and perhaps that is clarified by my learned friend in his opening remarks that the plaintiff made a demand on the second defendant. The second defendant is vicariously liable for the action of the first defendant. 

Counsel for Rainbow Trading then referred to the legal principles concerning vicarious liability. This misunderstanding was not corrected by counsel for Lin Maolin. Of significance, is that the evidentiary case of Rainbow Trading was presented by counsel who understood that the plaintiff's case was not based on agency and contract. 

[8] The significance of this misunderstanding appears to have became apparent to the Chief Justice by at least April 2005. The Chief Justice wrote to the parties on 5 April 2005 inviting submissions on whether he should give consideration to the contractual questions. In his reasons for judgment ultimately delivered on 1 September 2006, his Honour noted that in the final submissions of counsel for Lin Maolin, the case appeared to be based on vicarious liability under tort and his Honour also noted that this submission had been met by a submission by counsel for Rainbow Trading that the case had not been pleaded this way. 

[9] In his written response to the Chief Justice's invitation of 5 April 2005, counsel for Lin Maolin argued that his Honour could give consideration to the contractual question. However counsel for Rainbow Trading argued that his Honour could not consider the contractual question, submitting that he had ran the defence for Rainbow Trading during the trial only on vicarious liability because that was the issue identified by counsel for Lin Maolin in the opening address. Counsel for Rainbow Trading further argued that it would be an injustice if the Chief Justice considered contractual issues. 

[10] In his reasons, the Chief Justice appears to have rejected this submission of counsel for Rainbow Trading noting the decision in Prasad v Morris Hedstrom (Tonga) Ltd (No 2) [1993] Tonga LR 68 (CA) at 73 and observing that "it can only be fair if the Court reaches its decision in terms of contract, especially after counsel have been given the opportunity to make submissions on the basis of a claim on contract". What, with respect, the Chief Justice may have overlooked is that the opportunity to make submissions is only part of the trial. Equally if not more important is the selection and presentation of evidence. 

Grounds of Appeal 

[11] Rainbow Trading has appealed on a number of grounds. Broadly, these fall into three categories. The first, second and eighth grounds of appeal are based on the introduction of new or fresh evidence. The fourth, fifth, sixth and seventh grounds of appeal list errors on the part of the judge in accepting or rejecting particular evidence. The third ground of appeal is that the trial judge erred in concluding that the appellant had represented, by its conduct, that Wang Qiang had authority to act on behalf of the appellant. 

[12] It is only necessary to refer to those grounds which are based on the introduction of fresh evidence. While a formal application was made to this Court to introduce fresh evidence only immediately before the hearing of the appeal, the application was foreshadowed in the notice of appeal. The first and second grounds in the notice of appeal related to two categories of fresh evidence, cheques and cheque butts (the latter found in Wang Qiang's van) and Rainbow Trading records. The eighth ground also involved fresh evidence which would explain, it was contended, why Wang Lan had been unable to explain the timing and circumstances surrounding the removal of Wang Qiang as director, shareholder and secretary and therefore remove the basis on which the trial judge doubted the remainder of Wang Lan's evidence. 

[13] The cheque butts had been in the possession of counsel for Rainbow Trading at the time of the trial though the other documents had not been. The notice of appeal contended that in the interests of justice, the documents should be admitted into evidence in the appeal. Though the documents were available at the time of the trial, Rainbow Trading contended in the notice of appeal that through no fault of its own but due to error of judgment or negligence of its former counsel, the documents were not produced or tendered at that time. During the hearing of the appeal, counsel for Rainbow Trading moved away from the suggestion that counsel had been negligent and sought to explain counsel's conduct by reference to the uncertainty about the cause of action being pursued by Lin Maolin at the trial. 

Consideration 

[14] A logical and convenient starting point in considering the issues raised in this appeal, is to consider whether the appellant should be permitted to adduce further evidence in the appeal. At the hearing of the appeal, it was accepted by both counsel for Rainbow Trading and counsel for Lin Maolin that if leave to adduce fresh evidence was given, it would be necessary that there be a new trial. Counsel for Rainbow Trading submitted in this appeal that the evidence established that Wang Qiang was, in fact, acting as agent for Lin Maolin. Lin Maolin's counsel argued in this appeal that it would be necessary to cross examine witnesses again in the light of this fresh evidence if it was admitted. In particular he alluded to the need to cross examine Wang Lan. 

[15] The reception of further evidence by the Court of Appeal is governed by O 6, r 1(3) of the Court of Appeal Rules 1990. That sub-rule provides: (3) The Court shall not receive further evidence on questions of fact, (other than as to matters which have occurred since the trial in the lower court) without leave, which shall only be granted on special grounds. 

[16] Three comments can be made about this provision. The first is that the reception of further evidence is not governed directly by the common law but is governed by the sub-rule. That is not to suggest, of course, that common law principles would not provide some guidance in exercising the discretion conferred by the sub-rule. Those principles will. The second comment is that the sub-rule creates a clear bias against the reception of further evidence. The third and related comment is that the statutory test for giving leave to a party to adduce further evidence, is that "special grounds" exist which clearly point to the reception of further evidence in an appeal as being very much the exception rather than the rule. It is also important to bear in mind that the power to admit fresh evidence arises in the context of the Court of Appeal conducting a rehearing as provided in O 8, r 1(1). That is, the Court of Appeal must assess for itself the evidence before the trial judge and ascertain whether the judgment of the trial judge was infected by error: see Branir v Owston Nominees (No 2) (2001) 117 FCR 424. If fresh evidence is admitted in the appeal, then that process of evaluation would ordinarily include consideration of the fresh evidence. 

[17] Broadly stated, the common law requires in relation to evidence which would have been available at trial, that two conditions be met before it is admitted in an appeal as fresh evidence. The first is that reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the trial. The second is that it must be reasonably clear that if the evidence had been available at the trial and had been adduced, an opposite result would have been produced or, the opposite result would have been so highly likely as to make it unreasonable to suppose the contrary: see, for example, Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444. However the common law principles are not entirely inflexible and they have as their overriding purpose, reconciling the demands of justice with the policy, in the public interest, of bringing lawsuits to a final end: McCann v Parsons (1954) 93 CLR 418 at 430 and Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 141-143. 

[18] In relation to the Court of Appeal Rules, it is necessary to consider what is meant by the expression "special grounds". Some assistance is found in the consideration by the High Court of Australia of a discretionary statutory power conferred on the Full Court of the Family Court of Australia to admit further evidence in an appeal: CJD v VAJ (1998) 197 CLR 172. The section conferring the power to admit further evidence did not identify the circumstances in which it might be exercised. The Full Court of the Family Court decided to admit the evidence and then ordered a new trial. The majority of the High Court concluded that the Full Court had erred. In the leading judgment (McHugh, Gummow and Callinan JJ), it was noted that the power to admit further evidence exists to serve the demands of justice. Their Honours observed that if an appellant's case was that the new evidence would require a new trial, justice would not be served unless the appellate court was satisfied that the further evidence would have produced a different result if it had been available at the trial. Their Honours also observed that if the fresh evidence is undisputed (that is, not controversial) then it can be evaluated by the appellate court as part of its consideration of whether the trial judge's decision was correct. In that type of case the potential impact on a new trial will usually be unimportant in deciding whether to admit the fresh evidence. The relevant considerations are likely to be the availability of the evidence at the trial and the need for finality of litigation. 

[19] The expression "special reasons", which is, for present purposes, indistinguishable from the expression "special grounds", has been considered in another context by a Full Court of the Federal Court of Australia in Jess v Scott (1986) 12 FCR 187 (the grant of an extension of time to appeal only when there were "special reasons"). The Full Court said the expression described a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served. In the present case, it is necessary, because of O6, r1(3), for the appellant, Rainbow Trading, to establish a reason for departing from the ordinary rule that fresh evidence will not be admitted in an appeal. 

[20] In this appeal, counsel for Rainbow Trading contended that the fresh evidence, if admitted, would establish that Wang Qiang was acting as agent for Lin Maolin. The fresh evidence points to the relationship between Wang Qiang and Lin Maolin being more multifaceted than revealed in the evidence led at the trial. Subject to further evidence which may be led at a new trial, the cheque butts suggest that Lin Maolin provided Wang Qiang with one of his cheque books and signed, from time to time, blank cheques which Wang Qiang would complete by including the amount and making the cheques payable to "cash". At least in this respect, Wang Qiang appears to have been acting for, or at least in collaboration with, Lin Maolin. How the relationship between Wang Qiang and Lin Maolin should be characterised, as a matter of law, will be a matter for the judge conducting any new trial reviewing all the evidence. During the trial before the Chief Justice (or at least during that part of the trial when the evidence was led), counsel for Rainbow Trading misunderstood the case that was ultimately advanced by Lin Maolin and could not have appreciated the possible significance of this evidence for the case as it was ultimately decided. It is, in our opinion, plainly in the interests of justice to admit this evidence in the appeal and order a new trial. These extremely unusual circumstances constitute special grounds. 

[21] The appropriate orders are to grant Rainbow Trading leave to adduce the fresh evidence, set aside the orders of the Chief Justice and order that the matter be remitted to the Supreme Court for a fresh trial. We think, in the circumstances, that the appropriate costs order in this appeal is that there be no order as to costs. While the appellant had some success in the appeal by obtaining leave to adduce fresh evidence, the acceptance by counsel for Lin Maolin of the need for a new trial has meant that it has been unnecessary for Rainbow Trading to demonstrate that the fresh evidence, once admitted, necessarily required a new trial. We also discharge an order of Chief Justice Ford freezing an account of Wang Lan. There was no material before us which suggested that money in this account was property of Rainbow Trading which might be available to ensure compliance with any order requiring Rainbow Trading to pay moneys to Lin Maolin if he is successful at the further trial. We do not intend to disturb the order made by Chief Justice Webster freezing a sum of approximately $63,000.