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Tu'ivai v Kingdom of Tonga [2009] TongaLawRp 11; [2009] Tonga LR 97 (26 February 2009)

IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku'alofa

AC 10 and 11 of 2007

Tu'ivai

v

Kingdom of Tonga

Burchett, Salmon, and Moore JJ
18 July 2008; 26 February 2009

Practice and procedure – appeals against strike out of statements of claim – discussion of malicious prosecution – appeals dismissed

The appellant brought two actions against the respondents. In one case he alleged that he was maliciously prosecuted in a particular criminal proceeding, and in the other, he alleged he was maliciously prosecuted in another criminal proceeding. The Supreme Court struck out the statements of claim in each of the two actions. The appellant appealed the decision to strike out. The appeals were heard together.

Held:

1. The reference to a "sour relationship" with Mr Fa'oa, the head of police prosecution, did not go anywhere near showing a ground for an allegation of malice on the part of the police officer who initiated a prosecution many years after the cause of the sourness was alleged to have arisen.

2. The appeal in AC 10 of 2007 in relation to being maliciously prosecuted was dismissed with costs.

3. In relation to the second statements of claim, a conclusion of malice could not be drawn on the matters in the pleading.

4. The appeal against the striking out of the appellant's statement of claim in AC 11/2007 failed.

Cases considered:

A v State of New South Wales (2007) 230 CLR 500

Banque Commerciale S.A. en Liquidation v Akhill Holdings Ltd (1990) 169 CLR 279

Burgess v Beethoven Electric Equipment Ltd [1943] 1 KB 96

Cabassi v Vila (1940) 64 CLR 130

Calveley v Chief Constable of the Merseyside Police [1989] 1 AC 1228

D'Orta-Ekenaike v VLA (2005) 214 ALR 92

Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335

Feeney v Rix [1968] 1 Ch 693

Gibbons v Duffell (1932) 47 CLR 520

Herniman v Smith [1938] AC 305

Hill v Chief Constable of West Yorkshire [1989] AC 53

Hunter v Chief Constable of West Midlands Police [1982] AC 529

Jagroop v Sokai [2001] Tonga LR 234 (CA)

Kaufusi v Kingdom of Tonga [1999] Tonga LR 118

Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563

Mann v O'Neill (1997) 191 CLR 204

Middleton v O'Neill (1943) 43 SR (NSW) 178

Rex v Tu'ivai [2006] TOSC 34

Riches v Director of Public Prosecutions [1973] 2 All ER 935

Rogers v The Queen (1994) 181 CLR 251

Sea Culture v Scoles (1991) 32 FCR 275

Tu'ivai v R [2006] Tonga LR 264 (CA)

Tu'ivai v R [2007] Tonga LR 31 (CA)

Wallingford v The Directors, etc, of the Mutual Society (1880) LR 5 HL 685