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

CV 1075/2007

Sevele

v

Pohiva anor

Andrew J 
29 February 2008 

Practice and procedure – application to set aside default judgment – fair that defendant should defend defamation claim – set aside 
Practice and procedure – application for leave to withdraw claim against deceased second defendant – granted

The plaintiff filed two applications. First for leave to withdraw his defamation claim against the second defendant who had passed away and, secondly, to enjoin two further defendants, namely the deputy editor and Office Manager and senior reporter of the Kele'a newspaper. The defendant, who was unrepresented, applied to set aside a default judgment entered against him on 30 January 2008 and for leave to file a statement of defence out of time. The case related to a letter to the editor of the Kele'a newspaper entitled "Rob Solomon Shut Up" which was published on 17 October 2007. Proceedings had been commenced by Mr Solomon in relation to the article and the defendant contended that he had overlooked that the proceedings in question had also been commenced. The issue was whether the defendant had satisfied the criteria in Order 14 Rule 4 of the Supreme Court Rules 2007 for setting aside a default judgment. In relation to the plaintiff's application to add two further defendants, the issue was whether the proposed defendants should be added as a party pursuant to Order 9 Rule 2 of the rules. The defendant argued that the two individuals did not have editorial control and they were not relevant to the proceedings but the application was part of a political exercise designed to close the newspaper down. 

Held: 

1. Leave was granted for the proceedings to be withdrawn against the second defendant with no order as to costs.

2. The defendant had been dilatory in defending the proceedings and appeared to be disorganised but he was given the benefit of the doubt that he was confused as to which proceedings were which. Defamation proceedings were unique and there was an arguable case made out and it was only fair that the defendant should be permitted to defend the proceedings. The default judgment was set aside but costs on the application were awarded to the plaintiff. 

3. It was not appropriate for the defendant's allegations in relation to the proposed joinder of the two further defendants to be decided and it was not the time to be deciding the exact role of the proposed defendants within the newspaper. The court was satisfied that their presence was necessary to ensure that all related matters were joined and finally determined. Leave was granted to join the additional defendants and costs on that application were ordered to be costs in the cause. 

Rules considered: 
 Supreme Court Rules 2007 

Judgment

In this matter there are three applications: two by the Plaintiff and one by the defendant. 

1. The first application is that of the Plaintiff to withdraw the defamation claim against the deceased and Second Defendant Tavake Fusimalohi. 

 That application is granted and the order I make is as follows: 

- Leave is granted to withdraw the proceedings in this matter against the deceased and second defendant Tavake Fusimalohi. 

- No order as to costs. 

2. The second application is that of the defendant which refers to a stay application and an application for leave to file a statement of defence out of time. The defendant is unrepresented and I think that he should be given some leeway in this matter. He is effectively applying to set aside the default judgment against him, previously entered on the 30th January 2008 and for leave to file a statement of defence out of time. That application is opposed. 

 The applicant is the editor and publisher of Kele'a Newspaper. The proceedings issued against him are for defamation and briefly stated they relate to a letter to the editor of the newspaper entitled 'Rob Solomon Shut Up' which was published on the 17th October 2007. The defendant says that he was not served with any summons in this matter until the 13th February 2008. He says that proceedings had been commenced by Mr Solomon in relation to this article and he had overlooked the fact that these current proceedings had been commenced by the current plaintiff. In all he says he has been served about 5 times or possibly more by the same process server and he was confused as to which proceeding was what. That fact is confirmed by the process server.

 The plaintiff says that the defendant was served on the 11th December 2007 and the process server Mr Manase Pale has confirmed that fact in evidence. 

 O.14, R4 provides that a judgment entered in default may be set aside if the defendant satisfies the Court that: 

(a) there was good reason for the failure to file a defence in time. 

(b) there is an arguable defence. 

(c) the plaintiff will not suffer irreparable injury if the judgment is set aside.

 There is no doubt that the defendant has been dilatory in defending these proceedings and he appears to be disorganised. But I think I must give him the benefit of the doubt that he was confused as to which proceedings were which – in the circumstances where there were multiple proceedings emanating from the publication referred to. I think in fairness, he should in these circumstances be allowed to defend the proceedings. 

 In relation to whether there is an arguable case – it is enough to show that there is an arguable case or a triable issue. Defamation proceedings are unique.  I think there is an arguable case here in relation to the defamatory aspect of the case. Again I think it is only fair that the defendant should be permitted to defend the proceedings. I do not think that the plaintiff will suffer irreparable injury if the default judgment is set aside. 

 But as stated the defendant has been dilatory and is the author of why these proceeding were necessary and I propose to order that he bear the costs of this application. 

 The order I make is as follows:

i. The default judgment in this matter entered on the 30th January 2008 is set aside. 

ii. Leave is granted to the defendant to file its defence within 28 days. 

 Costs of this application are awarded to the plaintiff. 

3. The Plaintiff applies to enjoin two further defendants. They being – 

i. Laucala Pohiva (Deputy Editor of the Kele'a newspaper. 

ii. Falisi Tupou (Office Manager and senior reporter of the Kele'a newspaper).

 Order 9, Rule 2(b) provides that the Court may order any person to be added as a party if that person ought to have been joined as a party or if the person's presence is necessary or convenient to ensure that all related matters are finally determined. 

 The plaintiff says that the two proposed defendants are part of an integral management and publishing team of the newspaper and they exercise editorial control and further that they should be enjoined to prevent the need for a separate and identical defamation proceeding against them. The defendant (who states that he acts for the two proposed defendants) says that the two do not have editorial control and are not relevant to these proceedings. He says that this is a political exercise designed to frustrate the newspaper and part of the plaintiffs attempt to close the newspaper down. I do not know any of this and I don't think it is appropriate for those matters to be decided here. Neither do I think that this is the time to be deciding the exact role of the proposed defendants within the newspaper. I think there is a sufficient nexus within the newspaper of both defendants with the publication of various articles and I cannot see why it would be improper for them to be sued. But I think that their presence is necessary to ensure that all related matters are joined and finally determined. 

 The order I make is. 

ORDER: 

i. Leave is granted to the plaintiff to add Laucala Pohiva and Falisi Tupou (office manager and senior reporter of the Kele'a newspaper) as second and third defendants respectively. 

ii. The amended statement of claim ordered to be filed by 14th March 2008 together with a directions notice and this order is to be served on each of the 3 defendants. 

iii. A directions hearing will be allocated after the expiration of the time fixed for filing of the statements of defence has expired.

Costs to be costs in the cause.