IN THE COURT OF APPEAL OF TONGA
AN APPEAL FROM THE SUPREME COURT OF TONGA,
NUKU'ALOFA REGISTRY.

CA 15/99

BETWEEN

TAUBMANS PAINTS (FIJI) LTD.
Appellant

-V-

SIONE FALETAU
First Respondent

TRIDENT HEAVY ENGINEERING LTD
Second Respondent.

Coram
Burchett J Tompkins J Beaumont J

Counsel
Mr Lateef for Appellant 
Mr Niu for Respondents.

Date of Hearing: 21 July 1999
Date of Judgment: 23 July 1999

JUDGMENT OF THE COURT

INTRODUCTION

This is an appeal by Taubmans Paints (Fiji) Limited ("Taubmans"), from a reserved judgment of a Judge of the Supreme Court, given on 15 January 1999 on a counterclaim by the respondents Sione Faletau and Trident Heavy Engineering Ltd. ("Trident") by which Taubmans was ordered to pay Trident the sum of $160,260 for damages for breach of contract. The counterclaim had been referred back to the Supreme Court by order of the Court of Appeal made on 20 June 1997 in an appeal in this and a related matter [CA.No.15 & 16/96] The history of the litigation to that stage appears in the reasons of the Court of Appeal published on 20 June 1997.

Although Taubmans was the defendant to the counterclaim, and was given notice of the hearing before the primary Judge on 8 December 1998, it did not appear then. Trident proceeded, in Taubmans's absence, to prove its case by calling witnesses and tendering documents. At the conclusion of Trident's case, his Honour said that he would treat the matter as one "of formal proof only", but would deliver a reserved, written judgment.

THE DECISION AT FIRST INSTANCE.

On 15 January 1999, his Honour published his reasons and made orders. He considered the issues arising on the counterclaim as pleaded, and Trident's evidence. The learned Judge said:

"There is no measure by which I can test (Trident's) evidence other than its apparent reasonableness and inherent credibility. If it appears on the balance of probability to be true, then I must accept it, I have no other course open to me. It appeared to me throughout the hearing to be inherently credible, and (Trident's) witness' main assertions all seemed reasonably founded upon other facts that were proved. In particular, his assertion of the existence of the contract itself was supported by other evidence that he produced, and his assertions of the likely market share and likely profit appear to rest comfortably on the evidence of likely sales and likely costs.

I find therefore that the claims of (Trident) are made out on the balance of probabilities. I find that on the balance of probabilities the pleaded contract of sole agency is proved. I find on the same standard that it was wrongfully terminated by (Taubmans), in its letters of 11 December 1995 and 29 January 1996. I find also on the same standard that the claimed damages are proved. On the amended counterclaim there is judgment for (Trident) in the sum of $160,260."

TAUBMANS' APPEAL

Taubmans now appeals from these orders, on several grounds, some procedural in character, others seeking to revisit the merits of the dispute.

CONCLUSIONS ON THE APPEAL

During the course of argument, for the reasons we give below, we raised with both counsel the appropriateness of invoking the ordinary appellate procedures in this matter at this stage.

As we have said, the hearing of the counterclaim on 8 December 1998 proceeded in the absence of the defendant, Taubmans.

The Supreme Court Rules make no provision for that contingency. Order 13 deals with judgment in default of a defence, which is a different thing; and, in any event, Taubmans had in fact filed its statement of defence to the counterclaim.

There being no relevant provision, in the Rules, the rules of procedure for the time being in England apply (Order 2, Rule 2(2))

The English procedure is described in the Supreme Court Practice 1997 (White Book) (at 616) as follows:
If, when the trial of an action is called on, one party does not appear, the Judge may proceed with the trial of the action or any counterclaim in the absence of the party (O.35 r. 1(2)).

Any judgment, order or verdict obtained where one party does not appear at the trial may be set aside by the Court, on the application of that party, on such terms as it thinks just (O. 35 r. 2(1)). Any such application must be made within 7 days after the trial (O. 35 r. 2(2)).

The notes in the White Book state that the application should be made, if possible, to the Judge who tried the case: "The absent party should apply for a new trial NOT (our emphasis) to the Court of Appeal, but to the Court which tried the action, and, if possible, to the trial Judge himself; from a refusal of such an application an appeal will lie to the Court of Appeal".

Where the judgment is set aside, it will usually be on payment, by the party in default, of the costs of the day, which include all costs thrown away by reason of the trial becoming abortive; and of the application to restore. An affidavit of merits is not usually necessary though the Judge may require it in his discretion.

An element of English practice is that the Court which tried the action has a discretion to extend the period of 7 days in O. 35 r. 2(2).

In our opinion, the English procedure, in all its aspects, was available here.

This procedure was not followed in the present case. But, in truth, the only appropriate relief that Taubmans could, in the circumstances, have sought was to apply to the primary Judge to set aside his judgment and to order a new trial. This has not been done. In other words, although it is not beyond our jurisdiction to entertain an appeal if it were properly brought, this appeal is inappropriate and, accordingly, should be dismissed.

We dismiss the appeal, with costs.

Finally, as was mentioned in argument, we note that, although his Honour ordered that "costs are allowed to [Trident]", it is not entirely clear whether this order was intended to pick up the costs reserved at p. 8 of the earlier Court of Appeal judgment. Counsel may wish to apply to the trial Judge in this respect.

Burchett J, Tompkins J, Beaumont J.