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

Rainbow Trading Co Ltd v Lin Maolin [2007] TongaLawRp 19; [2007] Tonga LR 120 (20 July 2007)

[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.