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

Heimuli v Kingdom of Tonga [2007] TongaLawRp 20; [2007] Tonga LR 127 (20 July 2007)

[2007] Tonga LR 127

IN THE COURT OF APPEAL OF TONGA

Heimuli

v

Kingdom of Tonga

Court of Appeal, Nuku'alofa
Burchett, Salmon, and Moore JJ
AC 06/2006

17 July 2007; 20 July 2007

Civil proceedings – application for judicial review – no right to cross-examine – need interested parties joined

The statement of claim sought relief by way of declaratory orders (but not directly a declaration that Viliami Hurrell was not the legitimate or legitimised son of Manitisa Heimuli, although there was included the conventional prayer for "[a]ny other order this Honourable Court may deem just") and relief by way of rectification or cancellation of relevant registrations. No person was joined as a defendant representing the deceased Viliami Hurrell or as being entitled to succeed to any right upon his death which may have accrued to him upon the assumption that he was the legitimate or legitimised son of Manitisa Heimuli. The plaintiff filed in the same proceeding an Application for Judicial Review pursuant to leave granted by the Supreme Court on 14 December 2005. It was this application which was dealt with in the judgment under appeal. The learned judge dismissed the application for judicial review. His Honour pointed out that the affidavits of persons whose evidence was put forward in an endeavour to show that Viliami Hurrell was never recognised in his family as the son of Manitisa Heimuli could not be given the weight of uncontested evidence in the normal case; this being a judicial review matter, the Court would not generally give leave to cross-examine on such affidavits, and his Honour did not consider this was an appropriate case for allowing cross-examination. There could be no answering affidavits since the persons with an interest to answer the allegations, and presumably knowledge of the facts, had not been joined as parties. In that situation, the learned judge turned to the inferences he could draw from the registrations, as to which he referred to the presumption of the regularity of official acts.

Held:

1. There were two fundamental difficulties in the case that stood apart from any matter the Court was asked to decide. They were, first, the plaintiff's failure to join the interested parties who would have constituted an appropriate contradictor, and secondly, the inconclusiveness of the registrations upon the question whether Viliami Hurrell was or was not in reality the legitimised son of Manitisa Heimuli.