By Linny Folau
Leave to set aside a judgement in default was granted by the Lord Chief Justice for the National Reserve Bank of Tonga, its Governor and media whistle blowers
In September 2024, damages amounting to over $20 million pa’anga in total were awarded to the plaintiffs, the Tonga Development Bank and its CEO 'Emeline Tuita and Board Chairman, Penisimani Vea, in a landmark "judgement in default" made by the Lord Chief Justice Bishop on 23 September. The claims of defamation and damages were made against the Reserve Bank, its Governor, a local broadcaster Katalina Tohi and journalists Tevita Motulalo and Kalino Latu - the largest amount ever awarded in a civil damages case in Tonga. The judgment in default meant that the defendants had not filed a defence in response to the 106-pages writ of claim seeking over $20 million in damages.
That judgement has now been set aside.
Lord Chief Justice Bishop in a ruling on 27 January made it plain that rules of the court are meant to be followed and that it must not be assumed that a failure to do so will automatically result in leave to set aside a default judgement being granted.
“In particular the absence of any credible excuse such as was relied on here such as “time run away” is simply not good enough.”
He granted the leave to set aside the default judgement but on the condition that the costs of the current application be taxed if not agreed and paid before the matter proceeds.
The court heard that this application was entered in accordance with rule 14 or ss1 of the rules of the Supreme Court 2007, and was made because (or so it appeared at the time) no defence had been served in accordance with the 28-day time limit provided by the rules.
He stated that the current dispute is part of the ongoing litigation between the Tonga Development Bank and the National Reserve Bank of Tonga.
A number of issues pertaining to the overarching dispute were raised in the current application.
“In short order, the applicants alleged that the defendants have not complied with the rules and in any event do not have an arguable defence and have not supplied a good reason (or indeed any) for their failures.
“It was also alleged as must be the case to satisfy order 14 rule 4 that the circumstances in which a default judgement can be set aside namely that the plaintiff wiIl not suffer a reparable injury if the judgement is set aside is made,” he stated.
“I do not think it necessary at this stage to delve into the merits of the application, but it seems to me that it is in the public interest that these matters be ventilated fully by way of affidavit, if necessary, with cross examination.”
Moreover, the Lord Chief Justice could not see how if the matter proceeded to trial that would result in irreparable injury to the plaintiff.
All the issues raised in the material he had seen are available for appraisal.
He made it plain that rules of the court are meant to be followed and that it must not be assumed that a failure to do so will automatically result in leave to set aside a default judgement being granted.
“In particular the absence of any credible excuse such as was relied on here such as “time run away” is simply not good enough. Accordingly, I grant leave to set aside the default judgement but on condition that the costs of the current application be taxed if not agreed and paid before the matter proceeds.”
The Lord Chief Justice made the order against each of the defendants apart from the third defendant (Motulalo) who asserted that they did comply with the time limits.
“Although there is some dispute or least difficulty about that matter but having regard to the unfortunate circumstance that documents filed sometimes go astray in the present state of the registry, and also that the allegation that they had been served within time has been made on affidavit,” he stated.
"I exclude that defendant from the order I have just made in relation to costs.”
Damages
On 23 September the damages amounting to over $20 million pa’anga in total were awarded to the plaintiffs, Tonga Development Bank, Tuita and Vea, in the judgement in default made by Lord Chief Justice Bishop.
This was after the plaintiffs sued the National Reserve Bank of Tonga, its Governor and the three independent journalists for damages for loss of profit, general damages and exemplary damages, in a civil writ of claim (CV34 of 2024) filed on 6 August 2024 regarding a letter leaked to whistle blowers.
The judgment in default meant that the defendants had not filed a defence in response to the 106-pages writ of claim seeking over $20 million in damages.
The damages claim related to the broadcast and publication of extracts from a letter written by the Reserve Bank Governor to the Minister of Finance on 17 May 2024 on the subject of Regulatory Actions being taken by the Reserve Bank against the Tonga Development Bank, CEO Tuita and Chairman Vea.
The letter, which was leaked by an unnamed person, allegedly detailed the serious concerns of the Reserve Bank and included a “cease and desist” order to remove the CEO and Chairman from their roles in the TDB.
