IN THE SUPREME COURT OF TONGA

Tu'i'onetoa

v

Pohiva

Supreme Court, Nuku'alofa 
Ward CJ 
C 1262/99 

19, 26 June 2000; 24 July 2000 

Practice and procedure — preliminary questions — not appropriate 

The plaintiff brought an action for defamation in relation to an article published by the defendant in his newspaper. The plaintiff sought to have the court decide preliminary questions of law and fact. 

Held: 

1. It was only in rare and clear cases that such a course should be followed. The court held that this was not an appropriate case for those issues to be determined before the trial. The case must proceed to trial. 

2. There was no order for costs. 

Statute considered: 
Defamation Act (Cap 33) 

Counsel for plaintiff: Mr Edwards 
Counsel for defendant: Mr Tu'utafaiva 

Judgment 

This is an action for defamation in relation to an article published by the defendant in his newspaper. 

The plaintiff has sought to have the court decide preliminary questions of law and fact. It is only in rare and clear cases that such a course should be followed. 

At the time of the application, the defendant was not represented and explained to the court that he could not afford a lawyer and had thought he could deal with the case himself. He did not oppose the application on the basis that he felt he did not understand the nature of the application sufficiently. He was advised to instruct a lawyer but, in the meantime to avoid unnecessary delay, I ordered that the case should be listed for determination of the preliminary question and directed that affidavits be filed. 

Having now read the affidavits and heard Mr Tu'utafaiva for the defendant, I consider that this is not an appropriate case for those issues to be determined before the trial. 

The question of fact relates to a letter that the plaintiff claims was written by the defendant. The defence filed is inconsistent on this point and appears both to be denying and admitting the letter. 

The affidavits filed make it clear the defendant admits the letter. What is in issue is the meaning and significance of the letter and other correspondence on the same issue at the time. That is clearly a matter for the jury and I decline to make any other decision on the point at this stage. 

The question of law is whether there are grounds to rely on the defences raised under sections 12(a) and (b) and 14 of the Defamation Act (Cap 33) 

Again, I decline to rule on this matter at this stage in the proceedings. Whilst the affidavits filed briefly allude to the evidential basis upon which the defendant seeks to rely upon those provisions of the Defamation Act, their effect and value as a defence will require a determination of the evidence which is a matter exclusively for the jury. The court may have to rule at the trial whether or not on that evidence such a defence is available and whether it should be put to the jury and application may be made at that stage. However, I am not satisfied it would be proper for me to rule on the issue at this stage. 

I therefore decline to rule on any of the questions raised and order that the case must proceed to trial. 

On the question of the costs of this application, I am satisfied it was brought by the plaintiff because of the confused and inconsistent nature of the defence filed. I have declined to consider it further at this stage but the proper order is that there shall be no order for costs.