IN THE COURT OF APPEAL OF TONGA
ON APPEAL FROM THE
SUPREME COURT OF TONGA

Appeal No.CA 26/1999
Appeal No.CA 14/2000

BETWEEN:

KELEPI PIUKALA
Appellant in both appeals

AND:

BANK OF TONGA
Respondent in both appeals

Coram:
Burchett J Tompkins J Spender J

Counsel:
Mr Tu'utafaiva for the Appellant 
Ms Tapueluelu for the Respondent

Date of hearing: 23 July 2001
Date of judgment: 27 July 2001

JUDGMENT OF THE COURT DELIVERED BY SPENDER J

[1] Kelepi Piukala, the appellant, filed a notice of appeal, seeking to appeal the order by Finnigan J of 24 November 1998 that summary judgment be entered on the claim of the Bank of Tonga against the appellant. Summary judgment had been sought pursuant to O 14 R 6 of the Supreme Court Rules.

On 28 July 1999, the Chief Justice ordered that an application to set aside that order be refused with costs.

[2] The Statement of Defence of the appellant to the Statement of Claim by the Bank of Tonga had admitted the existence of the debt, but sought to contend that the debt was unenforceable having regard to the Limitation of Action provision in Tonga, being s 16 of the Supreme Court Act, Cap 10. Section 16(1) relevantly provides:

"16. (1) It shall not be lawful to sue any person for debt or damages after the expiration of 5 years from the date on which such liability was incurred nor to sue for property which has been in the undisputed possession of any person for more than 5 years. But if any part of such liability or claim has been paid, or the claim or liability has been admitted in writing within such time the 5 years shall commence to run from the time, of such payment or admission ..."

[3] On its being pointed out to counsel for the appellant that the acknowledgement of the debt defeated any possible reliance on the Limitation of Action provision, the appeal from the order giving summary judgment was not further pursued. The appellant should pay the costs of the respondent of that appeal, to be taxed or agreed.

[4] Whether or not the appellant is able to prosecute his counter claim in proceedings 1232/98, (a question which is considered later in these reasons), these is no reason in justice why the Bank should not be permitted to enforce the admitted debt. For the avoidance of doubt, having regard to the orders of the Supreme Court of 28 June 2000, and the orders of the Supreme Court of 20 November 2000 in proceedings C 1232/98, and the concession by counsel for the appellant that there is no basis to challenge the grant of summary judgment, we state expressly- that there is now no obstacle preventing the Bank of Tonga from proceeding forthwith with action to enforce its judgment against the appellant.

[5] The appellant also seeks to appeal the dismissal by the Chief Justice on 16 May 2000 at Vava'u of his counter claim against the Bank of Tonga. The circumstances leading to that dismissal appear from the formal orders made:

"THIS CASE having been listed for trial of the counter claim on 15th May 2000 and the Court having received a letter from the defendant dated 13 May 2000 seeking an adjournment accompanied by a medical certificate written on 13 May 2000

AND HAVING adjourned the matter to this day for trial unless the defendant sooner file an affidavit sworn by the doctor who wrote the medical certificate of 13 May 2000 and no affidavit or explanation by the defendant having been filed

AND BEING SATISFIED that the notice requiring the said affidavit was served upon the defendant in person at 12.57 pm on 15 May 2000

AND NO EVIDENCE having been called to prosecute the counter claim and the defendant to the counter claim being present and ready to proceed

IT IS ORDERED that:

1. The counter claim be dismissed with costs to the defendant in that action, the Bank of Tonga, to be taxed if not agreed.

2. The stay of execution of the judgment to the plaintiff, the Bank of Tonga, in the original claim ordered by the Honourable Mr Justice Finnigan on 24 November 2000 be lifted forthwith.

3. The Bank of Tonga have leave to apply to the Honourable Mr Justice Finnigan for clarification of his Judgment and Order given and made on 24 November 1998.

4. A copy of this Order be served on the defendant, Kelepi Piukala, within 14 days."

[6] On 29 May 2000 the appellant applied for an order recalling the orders of 16 May 2000, and for the hearing of his counter claim, asserting:

1. There is a good ground for the Counter-Claim.

2. It is in the Interest of Justice that this Counter Claim be heard by the Court.

3. There are reasonable grounds for the Defendant/ Counter Claimant not being able to be present for the hearing.

4. There is no prejudice to the Bank interest if the counter - claim is heard."

[7] The affidavit in support of that application acknowledges that, at least by 8 May 2000, the appellant was aware that the hearing of his counter - claim was set down for 15 and 16 May 2000 in Vava'u. Because of his plans to attend a church conference from 9 to 16 May, the appellant sought a later hearing date but was told by the Registrar that the hearing date could not be changed. The appellant acknowledges receiving the Registrar's letter requiring an affidavit from the doctor, whose certificate accompanied the appellant's letter of 13 May 2000. His affidavit continues:

14. I received the Registrar's letter at about 1 pm on 15 May 2000 and my health conditions got worse when it was clear that the hearing will be proceed next day but I have not enough time to comply with the requirement of the Court.

15. On receipt of the Registrar's letter I directed my daughter to take it to the doctor concerned on the same afternoon. However the doctor could not contacted due to her duties on that after noon. 

16. On 16 May 2000 my daughter went again to give the Registrar's letter to the doctor but she was off duty that day, and could not be contacted until late afternoon then she prepared her report of l6 May 2000 and received by me on the morning of 17 May 2000. Annexed Marked "E" is her report and affidavit Marked "F".

The report is dated 16 May 2000, addressed "To Whom it may concern" and relevantly states:

Re: Kelepi PIUKALA of Ha'ateiho

The above mentioned patient consulted to the outpatient department on the 13 May 2000 at around 10.00 am.

His complaints were of:

a. headache
b. rhinorrhoea/cough
c. body aches/chills

Examination resulted in the diagnosis of flu like illness with acute bronchitis. He was prescribed Amoxycillin and paracetamol and advised to rest at least a week thus the sick leave.

The affidavit is dated 19 May and "confirm(s) on oath that the facts in (her) report of 16 May 2000 are true and correct."

[8] On 9 June 2000, the Registrar wrote to Mr Tu'utafaiva, the appellant's counsel, concerning the Application to Recall Court Order dated 29 May 2000, saying "I write to inform you that your client must lodge an Appeal in the normal way." No doubt this information was conveyed pursuant to judicial direction. The orders of the Chief Justice of 16 May 2000 were interlocutory, and were made in default of appearance. There seems no reason why the procedure seeking to recall the Chief Justice's orders of 16 May 2000 could not have been followed, particularly having regard to the time likely to elapse before an appeal could be heard. It has been held that a court has implied or inherent power to recall or correct an order made by it in the absence of a party: Taylor -v- Taylor (1978-9) 143 CLR 1, where Mason J said at 16:

"A jurisdiction to set aside its orders is inherent in every court unless displaced by statute,"

and Murphy J said at 20:

"... There is a long standing principle that an order made against an absent party may be set aside where the absence is not the fault of the other party or the court (even where the absence was the absent party's fault), or where the absence is excusable, and consideration of delay, acquiescence or prejudice are not countervailing."

[9] As a result of the Registrar's letter, a notice of appeal was filed on 2 August 2000, which contained as the first three grounds:

d. There are reasonable grounds for the Appellant not being able to attend the hearing of the counterclaim on 16 May 2000.

e. In the circumstances of this matter there was insufficient time given to the Appellant to obtain the affidavit from the Doctor as required by the Court.

f. There are reasonable grounds for the Appellant's counterclaim.

[10] We have had regard to the events set out above. We note that there has as yet been no consideration of the merits of the appellant's counter claim (but which, as presently formulated, lacks specificity- of what cause or causes of action are sought to be relied on, and lacks the allegation of sufficient and precise facts to found those claims). If the strike out order stands, the appellant could bring a fresh proceeding on the same matters that are imprecisely referred to in the counter claim, but such a proceeding might run into limitation difficulties over and above those which might presently exist. The time-frame within which to process and provide an affidavit from the doctor who wrote the medical certificate of 13 May 2000 was quite compressed particularly having regard to the different geographical locations involved. The evidence before this court shows that there was an attempt made to comply with the Court's requirements as to a verifying affidavit. We think the fairest and most efficient course to adopt is to set aside the order of the Chief Justice of 16 May 2000 dismissing the counter claim with costs.

[11] The appellant should prosecute his counter claim with expedition. The Bank of Tonga will no doubt consider its position with regard to the counter claim.

[12] There should be no order as to the costs of the appeal concerning the counter claim.

Burchett J
Tompkins J
Spender J