The Kele’a newspaper can have its appeal heard at the Supreme Court against damages and costs awarded to William Clive Edwards in a defamation case but they must first pay $14,500 in damages plus costs and interest before proceeding.

Laucala Pohiva, Mateni Tapueluelu and the Kele’a Newspaper appealed against an order striking out an appeal against the respondent Edwards, at the Supreme Court.

The Court of Appeal said Edwards had successfully sued the defendants in the Magistrate’s Court for defamation. On June 7, 2011 he got a judgement for $10,000 and costs for $4,500.

The appellants’ counsel then filed an appeal to the Supreme Court on June 20, 2011 but their notice of intention to appeal did not state the grounds of appeal.

“It said only that the Magistrate had been wrong in allowing the full claim of $10,000 and had been wrong to allow the costs.”

On February 10, 2012, seven and a half months after filing the appeal, nothing was done on behalf of the appellants.

The respondent then filed to the Supreme Court to have the appeal struck out alleging failure to give notice of the appeal, failure to give proper grounds and abuse of process of the court.

A hearing to strike out the application was held on February 22, 2012 before the then Chief Justice Scott, which was adjourned to enable grounds to be filed without delay, as the then counsel for the appellants agreed to do.

There had still been no attempt by their counsel to progress the appeal by June 5, 2012 when, after hearing at which an assistant counsel for the appellants appeared, Scott struck out the appeal.

He said there had been inordinate and inexcusable delay, which had caused substantial prejudice to the respondent - meaning he had not been paid the judgement sum, stated the Appeal Court.

“We have concluded that, as the appellants themselves did not contribute in anyway to the delays and omissions that occurred and importantly as it is possible to remedy the prejudice to the respondent, it is appropriate to give them a final opportunity to have their appeal restored.”

The Appeal judges said while the appeal is not obviously strong they are unable to say that all of the grounds, which have now been particularised, are unarguable.

Damages

The Appeal Court then ordered that the appellants must pay Edwards the $10,000 damages; the costs of $4,500 and must pay 7% interest per annum on the $14,500 from 17 June 2011 to the date of delivery of this judgement.

“The appellants must pay all of this within 10 days, after receiving a written undertaking from the respondent. If payment is made by the appellants within 10 days from receipt of the undertaking, the strike out order will be set aside and their appeal to this court will allowed. And if they succeed in their appeal at the Supreme Court, the respondent must repay the damages and costs back to them.”

The court said if the appellants failed to make payments within the set period the appeal against the striking out order would be dismissed.

The respondent was allowed his costs in court.

The decision was one of ten decisions made by the Tonga Appeal Court in the session ending on 31 March 2015.