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To'a v Lutu [2010] TongaLawRp 7; [2010] Tonga LR 44 (11 June 2010)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CV 69/2009

To'a

v

Lutu anors

Ford CJ
13, 14, and 27 May 2010; 11 June 2010

Practice and procedure – strike out applications – malicious prosecution – time ran from when the loss arose – applications dismissed

The plaintiff described himself as a customs broker by occupation. The first defendant was a customs officer employed by the Customs Department. It was alleged that in September 2003 the first defendant laid an information before the police and alleged that the plaintiff offered him $3000 as a bribe in order to release a container. As a result, the plaintiff was prosecuted before the courts for conspiracy to commit bribery of a government servant. Apart from his occupation as a customs broker, the plaintiff claimed that he had a "side job" as a building contractor and he also exported Tongan crops, taro leaves and green and brown coconuts. He alleged that during the period when his criminal prosecution was being processed through the courts, he lost income because of the restrictions placed on his freedom to travel overseas. The plaintiff claimed against the defendant based on the tort of malicious prosecution. A significant part of his claim was based on his alleged economic loss. He also claimed damages on account of the legal costs he incurred in relation to his successful defence of the prosecution and on account of alleged injury and humiliation to his reputation. His total damages claim amounted to $1,207,140. He also claimed against the second and third defendants on the basis of their alleged vicarious liability as employer for a tort committed by the first defendant in the course of his employment. The first defendant applied to strike out the whole of the statement of claim on the grounds that it was statute barred. The first defendant contended that time began to run for the plaintiff from the date on which the first defendant was alleged to have filed his false statement against the plaintiff with the police, namely, September 2003. The plaintiff accepted the application of the limitation period but contended that in an action for malicious prosecution, time under any limitation period does not commence to run until judgment was given in favour of the plaintiff. The second and third defendants made an application for strike out on the grounds that there was no reasonable cause of action.

Held:

1. In action for malicious prosecution, time ran from the date at which the loss arose. All the authorities supported the plaintiff's contentions. The first defendant's application to strike out the proceedings as statute barred was, therefore, dismissed.