Home | Databases | WorldLII | Search | Feedback Tonga Law Reports

Fonua v Tonga Communications Corporation Ltd [2006] TongaLawRp 27; [2006] Tonga LR 278 (16 August 2006)

IN THE COURT OF APPEAL OF TONGA

Fonua

v

Tonga Communications Corporation Ltd

Court of Appeal, Nuku'alofa
Webster CJ, Burchett, Salmon, and Moore JJ
AC 11A/2004

7 August 2006; 16 August 2006

Practice and procedure – appeal out of time – special circumstances – time extended

Employment law – question of whether resignation was voluntary – not voluntary – unjustified dismissal

The facts of the judgment are set out at Fonua v Tonga Communications Corporation Ltd [2003] Tonga LR 351. The Court effectively dismissed the claim by the applicant that alleged that he had been wrongfully dismissed in July 1999 by his employer The Tonga Telecommunications Commission ("the Commission"), now the Tonga Communications Corporation Ltd ("the Corporation"). However, the Chief Justice ruled that notwithstanding the adverse finding in relation to the wrongful dismissal claim, the applicant was entitled to the pension. On 21 July 2005, the Court of Appeal upheld the Corporation's appeal and concluded that the construction of the pension scheme provisions adopted by the Chief Justice was erroneous. The effect of the Court of Appeal's judgment was to deprive the applicant of the benefit of a favourable ruling by the trial judge concerning his pension even though his Honour had effectively dismissed his application for wrongful dismissal. On or about 14 September 2005, the applicant filed a notice of appeal purporting to appeal against the judgment of the Chief Justice of 11 December 2003 putting in issue the conclusion of the Chief Justice that the applicant had not been wrongfully dismissed but had voluntarily resigned. That appeal was plainly out of time. It was necessary for the applicant to obtain an extension of time to prosecute an appeal. However the hearing was conducted on the basis that the parties would address both the question of whether time should be extended and also the merits of the appeal so the appeal could be determined in the event that time was extended.

Held: