IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

NO. C.259/1999

BETWEEN:

CHURCH OF TONGA
Plaintiff

AND:

1. PACIFIC TRADING LTD.
2. TEVITA ‘ILANGANA MAFI
Defendants

BEFORE THE HON MR JUSTICE FORD

Counsel: Mr Veikoso for the plaintiff and
Mr Tu'utafaiva for the defendant.

Dates of hearing: 6, 7, 8 November 2001, 21, 22 March, 15, 16, 18 April,
15, 24 May and 14 August 2002.
Date of judgment: 12 September 2002.

JUDGMENT

In this proceeding, the plaintiff claims the sum of $35,000 on account of damages allegedly sustained by its vessel, the M V Siupeli Koula, on 30 October 1998. The Siupeli Koula was tied up at the Tu'imatamoana wharf, Nuku'alofa, between two other vessels, namely the M V Alamea, a steel boat which was up against the wharf and the Tada 111, a fibreglass hulled vessel, which was tied on its outside. It is alleged that while manoeuvring in the harbour on the morning of 30 October 1998, the defendants' vessel, the M V Pulupaki, negligently reversed into the Tada 111 and the Siupeli Koula suffered damage as it was then crushed between the Tada 111 and the M V Alamea.

Although no particulars of negligence were pleaded, the evidence established that the collision resulted because the Captain of the M V Alamea, the second defendant, was unable to disengage the vessel out of reverse gear. Evidence for the plaintiff was given by Sunia Vilalani, an officer with the Ministry of Marine & Ports who had investigated the accident. Mr Vililani concluded that the Captain had been negligent because the engineer had been in the wheelhouse at the time of the accident whereas the Captain should have ensured that he was down in the engine room. The implication being that if the engineer had been at his proper post then he could have disengaged the jammed reverse gear earlier, thus avoiding the collision.

No evidence was called by the defendants and so the exact nature of the gear problem could not be explored any further. The defendants denied any negligence on their part but, in the absence of any explanation as to why the gear jammed, I would have thought that it was an appropriate case for the application of the res ipsa loquitur doctrine. Res ipsa loquitur was not pleaded by the plaintiff but it does not have to be -- Bennett v Chemical Construction (GB) Ltd [1971] 3 All ER 822, 825. The doctrine is summed up in the following passage from Scott v London and St Katherine's Docks Co (1865) 3 H & C 596 (Ex Ch) 601:

"There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."

Halsbury, 4th edition, vol 43, para 950 states:

"Where on the undisputed evidence of the circumstances leading up to a collision a prima facie case of negligence is made out against a ship, it is not sufficient rebuttal to show that her steering gear jammed. It must be shown that the jamming could not have been avoided by the exercise of reasonable care and skill . . . The defendant in a collision case is usually bound to prove those facts which are peculiarly or exclusively within his knowledge."

In my view, as it was expressed in Bennett v Chemical Construction, the plaintiff in the present case has an unanswerable claim in negligence and I find accordingly.

Most of the evidence called by the plaintiff focused on the issue of damages. It was extremely disjointed, however, and not well presented. When the hearing began, the damages claim stood at the figure shown in the statement of claim, namely special damages totalling $8000 together with general damages of $5000. On the 8th day of the hearing the plaintiff then sought leave to increase the special damages figure from $8000 to $30,000. The application was not opposed and so leave was granted. One of the principal witnesses for the plaintiff on damages was then, with leave, recalled to the stand to give evidence in the case for the third time. As I have indicated, the plaintiff's presentation of its damages claim was nothing short of abysmal.

An exception was the evidence called by the plaintiff from 'Aisea Tupou, a well qualified government boat builder with the Ministry of Fisheries. Mr Tupou said that he had been invited by the plaintiff to carry out a survey of the damage to the Siupeli Koula and provide an estimate of the repair costs. He duly prepared his report and then, on official Ministry of Fisheries letterhead, he provided a quotation, with a full breakdown of the figures, for carrying out the repair work. His quotation, dated 9 February 1999, came to $8000 and that was no doubt the basis for the $8000 figure in the original statement of claim.

Mr Tupou impressed as a credible witness. He told the court that he had been in the boat building business since 1975 and during that time he had built in excess of 60 vessels and carried out repair work on many others. He noted that the M V Siupeli Koula was an 18 -year-old vessel with a length of 54 ft 10 inches and a width of 17 ft 5 inches. It was some 10 feet in height.

Mr Tupou told the court that he had carried out two inspections of the Siupeli Koula. The first was in November 1998 and the second was on the same day that he prepared his quotation, namely, 9 February 1999. Significantly, he said that he only recorded damage to the vessel which he thought had been caused by the accident. In cross-examination he admitted that there was other damage to the vessel that had not been caused by the collision.

Mr Tupou's quotation, on behalf of the Ministry of Fisheries for carrying out the repair work was never accepted. He told the court that he did not know the reason why it was rejected. When the principal Church of Tonga witness was asked the reason in cross-examination, he said that he was not satisfied with the quotation because the figure of $8000 was too low.

The plaintiff then sought to totally distance itself from Mr Tupou's evidence and through subsequent witnesses, counsel proceeded to produce, in a most haphazard way, a series of invoices from New Zealand firms for timber and other repair materials supplied between July 2001 and April 2002. The 4-page summary of these invoices, none of which had been translated into the English language, was then produced as the basis for increasing the special damages claim figure to $30,000.

As Halsbury 4th edition, vol 43 para 988, states:

"The onus is always on the plaintiff who claims damages to prove that the damage was caused by the negligence of the defendant. When the plaintiff has made a prima facie case that the damage claimed is occasioned by the collision, the burden of proof then shifts to the defendant to show that the damage was not so occasioned, for instance by showing that it is to be attributable to another or a concurrent cause for which the plaintiff is responsible."

Halsbury also states, para 986:

"The injured party is bound to prove that he has sustained the loss which he alleges, and he must supply the means for ascertaining its amount. If the injured party can reasonably mitigate the damage done by the collision, he is bound ordinarily to do so."

In the present case, the plaintiff endeavoured to persuade the court that prior to the collision the M V Siupeli Koula was in good condition apart from its engine. The evidence was that it was awaiting the arrival of a new engine from overseas. In his submissions, Mr Tu'utafaiva referred to Mr Tupou's evidence where he had talked about other damage to the vessel which could not have been caused by the collision. He also reminded the court of the evidence that prior to the accident, the M V Siupeli Koula had been advertised as the first prize in a raffle being conducted to raise funds for the Church of Tonga. After the accident, the first prize was changed from the vessel to a cash prize of $10,000. That figure, submitted Mr Tu'utafaiva, was probably a reliable estimate of the boat's real value at the time. There was also evidence that the vessel had been sold in September 1995 in an arm's length transaction for $25,000 but the deal later fell through. I have taken all this evidence into account.

I also accept that only relatively minor damage was apparently caused to the Tada III as a result of the collision. Why that should be is not something that was explored in evidence but credible graphic evidence was given by an eye witness who was actually on the Siupeli Koula at the time of impact and I have no doubt that the vessel did suffer significantly greater damage than the Tada III.

The plaintiff submitted that the vessel had suffered damage to its starboard side which Mr Tupou had not noticed and it produced photographs showing some cracks and rot in the timber decking. When the photographs were put to Mr Tupou in cross-examination he said that if he had seen such damage and been satisfied that it had resulted from the accident then he would have included it in his report. I accept that. In all events, it is up to the plaintiff to prove its damages claim and if there was damage to the starboard side, then the Church of Tonga witness who took Mr Tupou to inspect the vessel should have pointed that out to him.

Mr Tu'utafaiva described the M V Siupeli Koula immediately prior to the accident as a "well worn vessel". That description fits in with my own assessment of the evidence. The plaintiff was under a duty to mitigate its loss. It has not satisfactorily explained to the court why it did not accept the quotation from the Ministry of Fisheries for $8000 and have the repair work carried out back in 1999. The evidence showed that instead, the plaintiff waited until 2001 and then carried out the repair work in the course of a much larger overhaul and refit of the ageing vessel.

I accept Mr Tupou's evidence, however, and I allow the claim for special damages in the sum of $8000. In addition, I accept that the plaintiff has made out a case for limited general damages. Under this head, I award $1000.

In closing submissions, counsel for the defendants raised two technical points which should, more appropriately, have been raised as preliminary issues prior to trial rather than left to the very end of the 11 day hearing. I, nevertheless, need to deal with them.

Counsel's first point was that the Supreme Court did not have jurisdiction to hear the case in its civil jurisdiction because it was an Admiralty matter and the English Admiralty rules provide a special "preliminary act" procedure for dealing with collision claims. I rule against the defendants in respect of this submission. Early in the proceedings they applied to strike out the claim upon similar grounds and on 31 August 1999 Finnigan J. issued a Ruling allowing the claim to proceed as an in personam claim against the defendants for damages in negligence. There was no appeal against that decision. The matter is, therefore, res judicatur.

In any event, the court retains the power to order dispensing with or limiting the requirements of the special preliminary acts procedure in collision cases and, while I accept that the plaintiff should have made application for such dispensation at the outset, I would not regard the circumstances of the present case as appropriate for the application of the preliminary act procedure. While those rules would be appropriate and helpful in a case involving a collision between vessels on the high seas, they would have little practical relevance to an incident like the present involving a vessel that was actually moored at a wharf.

The second point raised by Mr Tu'utafaiva in his closing submissions was a challenge to the legal status of the Church of Tonga. It does not appear that the Church of Tonga has any legal status. Mr Veikoso referred to an earlier case in this court where the Church was named as a fifth party but, it is clear from the report, that its legal status was never challenged on that occasion. In this case, it has been. Counsel produced an Order issued by this court dated 13 May 1929 which "recognised the body known as "Church of Tonga" but that document was issued simply for the purposes of the Births, Deaths and Marriages Registration Act (CAP. 42). The recognition allows ministers of the recognised Church to conduct wedding ceremonies and other associated functions. Such recognition certificates are still issued by the court these days whenever a new Church establishes itself in the Kingdom.

Other earlier documentation was produced in evidence relating to a contract for the sale of the boat and its arrest under an Admiralty action. The owners of the vessel were described in those documents as certain named trustees of the Church of Tonga. This should have alerted counsel in the present case to the potential jurisdictional problem.

In the interests of what I saw as the overall justice of the case, I heard argument on Mr Veikoso’s application for leave to change the name of the plaintiff to include reference to the individual Trustees of the Church. I reserved my decision on the point and said that I would deal with it in this judgment. Mr Tu'utafaiva’s objections were two fold. He said that the application was being made extremely late in the proceedings and, as the trust deed had not been produced in court, he has not had the opportunity to cross examine on it. He is right on both counts and, again, it is unsatisfactory for any counsel to overlook such a fundamental and basic issue as the plaintiff's legal status.

In a recent decision, in a totally different context, Piukala v Fonohema (unreported) C. A 13/2000, (judgment dated 23 July 2002) the Court of Appeal spoke of the need on occasions for the court to exercise its wide discretion "to do substantial justice between the parties."

In Tonga, a special situation exists under the Law Practitioners Act 1989 where, for sound historical reasons, the Legislature gave approval for people who hold no legal qualifications to operate as law practitioners. So long as that situation remains, there will be occasions, hopefully rare, when resort will need to be made by the court to the wide discretion spoken about by the Court of Appeal in the Piukala case, to do substantial justice between the parties. These days, litigation between an overseas qualified barrister and solicitor pitted against an untrained law practitioner, in certain situations, can lead to an uneven playing field. Unless, for those rare occasions, some flexibility is retained by the courts to do substantial justice between the parties then, every time, the public will end up as the ultimate loser and that, I am sure, was never the intention of the Legislature. This proceeding seems to be a case in point. Even after the problem was pointed out, it was clear that plaintiff’s counsel was still genuinely convinced, in his own mind, that the 1929 Court Order had bestowed legal status on the plaintiff Church. Such, of course, was not the case.

After giving the matter very anxious consideration, and in the interests of what I perceive to be the substantial justice of the case, I have decided to allow counsel's late application to change the name of the plaintiff to that of its individual trustees. Counsel is to forthwith file with the court a true copy of the current trust deed referred to in submissions together with confirmation of the full names and occupations of the individual trustees, if they are not the names appearing in the deed. Judgment will then be entered accordingly.

The final two matters I need to deal with relate to the claims for interest and costs. The plaintiff claims interest on the judgment sum from 30/10/98 until payment at the rate of 10 %. The delay in bringing the matter on for hearing is excessive but I am satisfied that the delay is not the fault of the defendant or of the court. On 6 February 2001 the president of the Church of Tonga wrote directly to the court requesting a trial date. He should not have done so. He should have dealt through his legal counsel. He stated in his letter, however, that the Church's legal adviser "has constantly been informed on (sic) the urgency of this matter." That may be so, but the court had not received any prior application for a fixture. The case should have been heard within 3 years from the filing of the writ and I am, therefore, only prepared to award 3 years interest.

Finally, in relation to the question of costs, I have already indicated that I have had very real misgivings over the way in which the plaintiff's case has been presented. If the case had been properly prepared and if the witnesses had been briefed to present their evidence in a structured and relevant format, then it should have been completed in 4 days. As it was, the hearing occupied some eleven days and no evidence was called by the defendants. Originally at the pre-trial conference it was listed, with the consent of both counsel, for a 3 day fixture. These observations will be reflected in my costs award.

Despite these misgivings, the plaintiff has succeeded in its claim and is entitled to judgment against the defendants jointly and severally as follows:

1. 	Special damages in the sum of $8000.

2. 	General damages in the sum of $1000.

3. 	Interest on the total award of $9000 for 3 years from the date of issuance of the writ at 10%.

4.	Costs on the basis of a 4-day hearing to be agreed or taxed.

NUKU'ALOFA: 12 SEPTEMBER 2002

JUDGE