IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CV 84/2008

Sevele

v

Pohiva anors

Andrew J 
10 November 2008; 12 November 2008 

Practice and procedure – application to file statement of defence out of time – excuse offered not sufficient justification – mandatory rules – application dismissed 

An application had been made by the first defendant on behalf of all the defendants for leave to file a statement of defence out of time.  The application was opposed.  Order 8 Rule 3(1) of the Supreme Court Rules 2007 states: "A defendant who wishes to defend a claim shall, within 28 days of service of the writ, file a defence with as many copies as there are persons to be served."  Order 5 Rule 1 provides that the court may, on such terms as it thinks just, order that the time within which a person is required to or authorised to do any act in any proceedings, whether, before or after judgment, be extended or abridged.  28 days from the date of service of the writ expired on 15 October 2008.  The plaintiff claimed that he was defamed in a series of articles published in the defendants' newspaper.  The defendants application to file its defence out of time was dated 21 October 2008, i.e., six days after the expiry of the 28 day period.  The defendant's explanation for the delay was that he was unrepresented; that there were many other defamation proceedings he was involved in and he did not have sufficient time to respond to each case properly; that he had many other work obligations and he was under financial constraint.  The court noted that similar explanations had been provided by the first defendant for failing to file a defence in time in two other cases. 

Held: 

1. The rules were mandatory in terms and the same excuses could not continue to apply.  There could no longer be any confusion with other defamation cases.  The continual delays resulting from the failure to lodge a defence in time had resulted in multiple applications and resultant costs to all parties.  The fact that there had been discussions as to an apology and retraction was not a proper excuse for failure to defend.  

2. The first defendant had displayed a cavalier attitude to court proceedings and the rules of the court and the excuses offered were not accepted as genuine or as sufficient justification to grant an extension of time in which to file a defence.  

3. The application to file a statement of defence out of time was dismissed.  

Rules considered: 
 Supreme Court Rules 2007

Counsel for the plaintiff : Mr Afeaki 
The first defendant appeared in person 

Judgment 

This is an application made by the first defendant on behalf of all the defendants to file a statement of defence out of time. 

• The Plaintiff's statement of claim, writ of summons and directions notice were filed on the 10th September 2008. 

• On 17th September 2007, the statement of claim, writ of summons and directions notice were served on all three defendants. 

• Order 8, Rule 3(1) of the Supreme Court Rules 2007 states "The defendant who wishes to defend a claim shall, within 28 days of service of the writ, file a defence with as many copies as there are persons to be served". 

• Order 8, Rule 1 is in mandatory terms but Order 5, Rule 1 provides that the court may on such terms as it thinks just, order that the time within which a person is required to or authorised to do any act in any proceedings, whether, before or after judgment, be extended or abridged.

In this case, the 28 days from date of service of the writ on the defendants expired on 15th October 2008. The defendant's application to file its defence out of time was dated 21st of October 2008. This was 6 days after expiry of the 28 days requirement provided by the Rules in which to file a defence. 

The Plaintiff's claim is alleging that he was defamed in a series of newspaper articles. There have been several other such claims involving the same parties and I accept the evidence that this is the third time that the defendants have failed to file a statement of defence within the prescribed period of 28 days. 

In the matter of CV 1028/07, the defendants were 33 days out of time when the Plaintiff made application for judgment in default of defence. In CV 1028/07, the defendants were 10 days out of time on the date that the application for judgment in default was made. In both of these cases judgment in default of defence and costs were granted. Both judgments were ultimately set aside upon application by the defendants with costs awarded against them. 

In both of the above cases, the defendant's explanation for the delay in filing any defence was that he was unrepresented; that there were so many defamation proceedings involved that he did not have sufficient time to respond to each case properly and further that he had many other work obligations and that he was under financial constraint.  Those are the same explanations as are now offered for the present delay together with the fact the that defendant says that there were discussions between the parties as to a retraction and apology being published and he understood that in those circumstances there was no need for him to file a defence. It is agreed that there were some such discussions although they ultimately came to nothing. 

The defendant says that they took place in August and September this year. That however was before the expiry date in which to file its defence (being 15th October 2008).  

I accept the fact that the defendants are unrepresented. But Mr. Pohiva well knows by now the requirement to file a defence within time. Twice he has been let in to defend when out of time with costs awarded against him and in my view the court acted generously in allowing him in. But I do not consider that this situation can continue. The rules are in mandatory terms. I consider that the same excuses cannot apply. There can no longer be any confusion with others defamation cases. The defences there have already been filed and this case stands alone requiring a defence to be filed. The continual delays resulting from the failure to lodge a defence have resulted in multiple applications and resultant costs to all parties. I do not consider the fact that the discussions as to an apology and retraction to be a proper excuse for failure to defend. In any event they had come to an end well before the closing date of the 15th October 2008. Whilst it may not be directly relevant there are at least six occasions when the defendant has failed to attend various court hearings when ordered to do so. That is, I think, an example of his cavalier attitude to court proceedings and the Rules of the Court. I do not consider the same excuses being now offered to be genuine and I do not consider that they justify an extension of time in which to file a defence.  The defendant cannot continue to ignore the Rules. Otherwise the Rules would have no meaning. 

For all of these reasons, the application is dismissed. 

The orders made are as follows: 

1. The defendant's application to file a statement of defence out of time is dismissed.

2. The costs of this application are awarded to the plaintiff.