Supreme Court Act

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SECTION
1. Short title.
2. Districts.
3. Venue.
4. Jurisdiction.
5. Powers.
6. Supreme Court sessions.
7. Registrar and Officers.
8. Registrar of Supreme Court.
9. Jurors.
10. Penalty for non-attendance.
11. Oath or affirmation of Juror.
12. Fees of Jurors.
13. (1) Non-Jury actions.

(8) Jury to be unanimous.
15. Costs.
16. Limitation of action.
17. Licensed lawyers.
18. Appeal and rehearing.

Acts Nos. 4 of 1903, 17 of 1909, 24 of 1912; Ord. No. 5 of 1914; Acts Nos. 9 of 1918, 11 of 1926, 17 of 1927, 9 of 1933, 23 of 1942, 6 of 1950, 4 of 1952, 9 of 1955, 10 of 1957, 10 of 1962, 11 of 1963, 19 of 1966,^* 13 of 1974, 9 of 1977, 23 of 1978, 12 of 1984, 14 of 1986, 46 of 1988.
^*Not in force as at 31 December 1988.

3. All matters within the jurisdiction of the Supreme Court that shall arise in one or other of these districts shall be tried before the court held in that district provided that it shall be lawful for the Chief Justice or a Judge of the Supreme Court, upon the application of the Attorney-General, to order any case arising in Ha'apai or Vava'u to be tried in Tongatapu. (Amended by Acts 6 of 1950 and 46 of 1988.)

Provided further that any matter may, by consent of the parties thereto, and in the discretion of the Court, be heard and determined at the Supreme Court at Nuku'alofa, subject to such conditions as to the said Court may seem necessary. (Added by Act 10 of 1957.)

4. The Supreme Court shall have jurisdiction in all civil cases in which the amount claimed exceeds $500 and in all criminal cases for which the maximum penalty exceeds $500 or 2 years imprisonment and in all divorce, probate and admiralty matters and in any other matter not specifically allotted to any other tribunal. (Amended by Act 23 of 1978.)

5. The Supreme Court shall have power to issue warrants, writs, summonses and to subpoena witnesses, to exercise all the powers of the Magistrate's Court and to enforce agreements and protect property.

6. It shall be lawful for the Chief Justice, or a Judge of the Supreme Court, to hold sittings of the Supreme Court in his discretion and to adjourn cases from time to time and to make rules for the practice and procedure of the courts. (Amended by Act 6 of 1950.)

7. There shall be in the civil service a Registrar of the Supreme Officers. Court and such number of clerks or officers as may be required for the purposes of this Act. (Inserted by Act 14 of 1986.)

8. The Registrar shall have charge of the seal of the Supreme Court and shall have power to administer oaths and to take solemn declarations or affirmations in lieu of oaths, to take depositions witnesses and to receive costs and fines.

The Registrar has charge of all records, books and papers of Court and all documents filed in his office. The Registrar or a clerk shall attend all sittings of the Court and record its proceedings. The Registrar, the clerks and other officers shall be subject to such orders as they from time to time receive from the Chief Justice or a Judge.

9. In the month of November in each year the district officer in each district shall deliver to the magistrate of the district a list of all Tongans of or over the age of 21 years resident in the district. The magistrate shall thereupon compile a list of all Tongans of or over the age of 21 years who are competent and liable under clause 28 of the Constitution to serve on juries and shall on or before the first day of January next following cause a copy of the list of jurymen so prepared for the district to be posted in a conspicuous place in the Court house and such jury list shall remain in force until the 31st day of December next following. (Amended by Act 9 of 1977 and Act 14 of 1986.)

10. Any person being liable to serve on a jury who shall disobey a summons to attend at any court for the purpose of serving on a jury shall unless prevented by sickness be liable on conviction to a fine of $50:

Provided always that no person shall be compelled to serve on a jury more than once in any year. (Amended by Act 14 of 1986.)

11. The following form of oath or affirmation shall be administered to or be made by a juror:

"I swear that I will give a true verdict without favour or ill will according to the evidence given in this case. So help me God.";

"I do solemnly, sincerely and truly declare and affirm that I will give a true verdict without favour or ill will according to the evidence given in this case." (Substituted by Act 14 of 1986.)

12. The Cabinet may from time to time make regulations providing for the payment of jurors and witnesses and fixing the amounts of such payments. (Substituted by Act 9 of 1955; Amended by Act 14 of 1986.)

13. (1) Civil actions shall be commenced by writ of summons and may by the consent of the parties thereto be tried by the Chief Justice, or a Judge of the Supreme Court, without a jury. (Amended by Act 6 of 1950 and Act 14 of 1986.)

(2) Where the action is tried before a jury, a jury of 7 shall be empanelled and both plaintiff and defendant shall be entitled to 6 challenges and it shall be lawful for the judge to accept a verdict agreed to by 5 out of the 7 jurymen. (Amended by Act 9 of 1933.)

(3) After the evidence has been heard the judge shall sum up the evidence and explain to the jury the law that bears upon the case. The jury shall then consider the evidence and deliver their verdict.

14. (1) Subject to the provisions of Section 12 of the Magistrates' Courts Act, relating to the right of trial by jury, all indictable offences shall be tried by the Supreme Court and a jury of 7. (Substituted by Act 4 of 1952.)

(2) Where one accused person is on trial before the Supreme Court it shall be lawful for the Prosecutor and the accused each to challenge peremptorily any number of jurymen up to the number of 6, and where several accused persons are tried together for an indictable offence, each has a right to the full number of his challenge. (Substituted by Act 4 of 1952; Amended by Act 14 of 1986, and Act 46 of 1988.)

(3) When the jury have been empanelled and sworn the Prosecutor shall appoint a foreman and thereafter the clerk of the Court shall address the jury as follows:

"Members of the jury, the accused stands indicted for that he, on the (stating the substance of the offences charged in the indictment)."

"To this indictment he has pleaded not guilty and it is your charge to say, having heard the evidence, whether he be guilty or not.". (Substituted by Act 14 of 1986.)

(4) The witnesses shall be examined according to the rules of evidence and after the evidence has been heard the judge shall sum up the evidence and explain to the jury the law that bears upon the case. (Amended by Act 14 of 1986.)

(5) The jury shall then consider among themselves whether the charge has or has not been proved. If necessary they shall retire and shall not be permitted any communication with any other person.

(6) Upon their having reached a conclusion the foreman shall notify the clerk of the court who shall ask the foreman if they are all agreed upon their verdict. If they are all agreed he shall then ask him "What is your verdict? Is the prisoner guilty or not guilty?".

(7) Upon a verdict of not guilty the judge shall order that the accused be set at liberty forthwith; and upon a verdict of guilty the judge shall pass sentence in accordance with the law.

(8) Where the jury are unable to agree upon their verdict they shall be discharged and a new jury empanelled and the case shall be tried again before them.

15. In every action the costs of the whole action of each particular proceeding therein and the costs of every proceeding in the court shall be in the discretion of the court as regards the person by whom they shall be paid:

Provided always that the court shall not order the successful party in an action to pay to the unsuccessful party the costs of the whole action but the court may order the successful party notwithstanding his success in the action to pay the costs of any particular proceedings therein.

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 within such time 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 and if there be any deed or document between the parties covering a period of time the 5 years shall commence to run from the expiration of such period of time.

(2) No action to recover from any person any tax or duty due and payable to the Crown shall be brought in any Court but within 5 years next after the liability to pay such tax or duty was incurred.

17. (1) It shall not be lawful for any person to make any charge or receive any remuneration for appearing for or representing any person or party in any cause or proceeding before any of the Courts of the Kingdom or before any inquiry or commission under the Law of Tonga or for advising any party or person unless he shall have had first issued to him a licence under the hand of the Chief Justice, or an officer of the Supreme Court duly authorised by him in that behalf, which licence shall be in the form in the Schedule hereto:

Provided that the Registrar of the Supreme Court may renew licences which have been issued in accordance with the provisions of this section. (Amended by Act 23 of 1942 and Act 6 of 1950.)

(2) Any person who may appear for or represent any person or party in any Court inquiry or commission without having obtained such licence above mentioned shall not be allowed to make any charge or receive any remuneration or fee for such services.

(3) Any person who shall be guilty of a breach of sub-section (1) or who shall make any charge or receive any fee or remuneration in contravention of sub-section (2) hereof shall upon conviction be liable to a fine not exceeding $40 or in default of payment to distress and he shall also return any fee or remuneration that he may have received.

(4) The Registrar of the Supreme Court shall keep a register of all persons licensed under this section. (Amended by Act 6 of 1950.)

(5) The Chief Justice, or an officer of the Supreme Court duly authorised by him in that behalf, may refuse in his discretion to issue a licence to an undesirable person and he shall not issue such to any person who has been convicted of felony. (Amended by Act 6 of 1950.)

(6) The Chief Justice, or an officer of the Supreme Court duly authorised by him in that behalf, may remove from the register the name of any person who has committed a breach of this section or who has been guilty of grave misconduct. (Amended by Act 6 of 1950.)

(7) The Chief Justice, or a Judge of the Supreme Court, shall have the power to tax any account rendered or any fees or remuneration already paid for services rendered by any person licensed under this section and he may call upon any person to render accounts relating to such matters. (Amended by Act 6 of 1950.)

(8) For every application to tax there shall be paid the fee of $2.50 which shall be paid by such party as the Chief Justice, or a Judge of the Supreme Court, may direct. (Amended by Act 6 of 1950 and Act 13 of 1974.)

(9) There shall be no appeal from any decision upon taxation. (Amended by Act 6 of 1950.)

(10) There shall be paid for every licence issued under this section the yearly fee of $60. (Amended by Act 6 of 1950, Act 13 of 1974 and Act 12 of 1984.)

18.* An Appeal shall lie from the Supreme Court by way of petition to the King in Council but it shall be lawful for the Supreme Court to rehear civil cases. Petitions shall be presented through the Prime Minister.

*This section, (previously s. 5), will be repealed if Act 19 of 1966 comes into force and it was omitted from the 1967 edition of the Laws of Tonga in anticipation of Act 1966 coming into force. See also clause 50 of the Constitution (Cap. 2).

No. .............. dated the ....................... day of...................... l9 ... of ................... is hereby licensed to act as a Representative in the Courts of Tonga for the year ............................ in all such cases in which representation is allowed by section 17 of The Supreme Court Act and also to act as an Adviser in Law.

ORDER
I. Court Business
II. Persons under Disability
III. Service of Process
IV. Commencement of Action
V. Appearance and Defence by Defendant
VI. Set-Off the Counterclaim
VII. Setting Down for Trial

2. Nor rule which has been rescinded by a later rule shall be revived by the rescission of that later rule.

3. In these rules unless there is anything in the subject or content repugnant thereto "Judge" means the Judge of the Supreme Court.

1. The sittings of the Court in its several jurisdictions and on circuit, and its order of business shall be as determined from time to time by the Judge.

1. An infant may sue and defend by his next friend and not otherwise. Where he is 16 years or over he may elect as his next friend his legal guardian. Such election and a consent by his guardian to act as next friend, must be filed before or at the time the action is commenced or notice of defence filed.

In all other cases, including the case where it becomes necessary to change a next friend, a judge may by order appoint as next friend of the infant any person who is willing so to act and of whom he may approve. To obtain such an order one or more affidavits annexing the consent to act and verifying the signature thereto must be produced to the judge, and, where the legal guardian is not proposed, also setting out the circumstances, and qualifications of the proposed next friend. The order and affidavits must be filed before or at the time the action is commenced or the notice of defence filed.

2. Any person of unsound mind or a person incapable through mental infirmity of managing his affairs may sue or defend by the person entrusted with the management of his property, or if none, by his next friend and not otherwise.

An application for the appointment of the next friend under this rule may be made ex parte to the judge upon affidavit or affidavits clearly setting out the grounds for the application and annexing a copy of the relevant medical evidence and the consent of the proposed next friend to act in that capacity.

3. Whenever a person under disability commences an action otherwise than as provided by the preceding 2 rules, the defendant may apply to judge by summons supported by an affidavit of grounds for an order staying the said action. After an order has been made under this rule the person under disability shall only proceed in the action or commence a new action against the defendant upon the order of the judge who may make such order as to costs or otherwise as he thinks fit.

4. Whenever a defendant in an action is a person under disability and he fails to comply with rule 1 or 2 hereof, as the case may be, the plaintiff may apply to the Judge by summons supported by an affidavit of grounds for the appointment of a next friend of such defendant. Such order may be made on such terms both as to costs and otherwise as the Judge thinks fit.

5. In any action in which a third party is joined the foregoing rules shall apply, mutatis mutandis.

1. Every writ, summons, order, notice or other process hereinafter in this Order referred to as process requiring service may be served by an officer of Police.

2. Personal service of process may be effected by handing a copy thereof to the person to be served, at the same time showing him the original, or if he refuses or neglects to accept the same, by placing it down in his presence after informing him of the nature thereof.

3. (1) Where in any cause or matter prompt personal service of any process of which personal service is usually required, cannot be effected, a Judge may make such order for substituted or other service or for the substitution for service of notice by letter, telegram, advertisement, or otherwise as may seem just.

(2) Every application for such order shall be supported by an affidavit setting out the grounds upon which the application is made.

(3) Where service of any process by prepaid post is authorised by any rule or by an order of a judge it shall, if addressed to an address within the jurisdiction of the Court be deemed to have been served 24 days after posting; if addressed to an address outside the jurisdiction and despatched by air mail it shall be deemed to have been served 48 days after posting.

4. Where a husband and wife are both parties to a cause or matter they shall both be served unless the Judge otherwise orders.

5. Where an infant under the age of 16 years is required to be served, service on his father or legal guardian, or if he has neither, upon the person with whom he resides or under whose care he is, shall be deemed good service upon the infant unless the judge otherwise orders.

6. Where the person required to be served is a person of unsound mind or a person incapable through mental infirmity of managing his affairs, service upon the person entrusted with the care and management of his property, or if there is no such person, upon the person with whom he resides, or under whose care he is, shall be deemed good service, unless the judge otherwise orders.

7. When a party sues or defends by his legal representative, service of any process upon such representative shall be deemed good service upon that party. Service upon such representative may be effected by leaving the process at his office between the hours of 9 and 5 in the daytime from Monday to Friday both days inclusive:

Provided that this rule shall not apply in cases of attachment where service of process must be personal unless the judge otherwise orders.

8. Every affidavit of service under rule 3 hereof shall set out the date and the particulars of the order made and the manner of compliance therewith. Every other affidavit of service shall, in addition to any statutory requirements, or relevant circumstances, state-

9. Any document required to be served in accordance with these Rules upon the Court or upon a Government Department shall be deemed to have been duly served provided the said document has been left during working hours with a responsible person at the office of the said Department and a copy thereof has also been served on the Solicitor-General or on the person for the time being fulfilling the duties of his office.

1. Every action in the Supreme Court shall be commenced by issuing out of the Supreme Court a Writ of Summons.

2. Such writ shall be in the form No. 1 of the first Schedule hereto shall contain concise particulars of the Plaintiff's claim.

3. A copy of the said writ signed by the Registrar or by an officer on his behalf shall be served on each Defendant.

4. The person who effects service of a writ shall as soon as possible service complete the declaration of service endorsed on the original writ return the writ so completed to the Registrar of the Supreme Court.

1. Appearance to a Writ of Summons shall be entered by filing in the Court Office a Notice of Defence in or to the effect of form No. 2 in the first Schedule hereto. Such notice shall be signed by the Defendant or his Counsel and shall contain a concise statement of the grounds of defence on which the Defendant intends to rely at the trial; and a statement whether or not the Defendant consents to the case being tried by the Judge without a jury.

2. The time for filing the Defendants' Notice of Defence shall be 28 days after service of the writ upon him.

3. A copy of the Notice of Defence shall be served on the Plaintiff or his Counsel as soon as reasonably practical after the day of filing by leaving it at the office of the Plaintiff's Counsel or where the Plaintiff is proceeding in person at the address endorsed on the copy of the writ.

4. If a defendant fails to file and serve a notice of defence as in this order provided he shall not be permitted to raise any defence at the trial without leave of the Judge.

5. A defendant will not be allowed to raise any defence other than the defence contained in his Notice of Defence without the leave of the Judge at the trial.

1. Subject to the provisions of rules 2 and 3 of this Order a defendant in any action may set-off or set-up by way of counterclaim against the claims of the Plaintiff, any right or claim whether such set-off or counterclaim sounds damages or not, and such set-off or counterclaim shall have the same effect as a cross action, so as to enable the Court to pronounce a final judgment in the same action, both on the original and the cross claim. Such set-off or counterclaim shall be raised by the Defendant in his Notice of Defence.

2. (1) A person shall not be entitled to avail himself of any set-off or counterclaim in any proceeding by the Crown for the recovery of taxes, duties or penalties, or to avail himself in proceedings by the Crown of any other nature of any set-off or counterclaim arising out of a right or claim to repayment in respect of any taxes, duties or penalties.

(2) A person shall not be entitled without the leave of the Judge to avail himself of any set-off or counterclaim in any proceedings by the Crown, if either the subject matter of the set-off or counterclaim does not relate to the Government Department in the name of whom the proceedings are brought.

(3) The Crown when sued in the name of a Government Department shall not be entitled without the leave of the Judge to avail itself of any set-off or counterclaim if the subject matter thereof does not relate to that Department.

(4) Any application for leave pursuant to paragraphs (2) or (3) of this rule shall be made by summons to a judge in chambers.

3. Where a defendant sets up a counterclaim, if the Plaintiff contends that the claim thereby raised ought not to be disposed of by way of counterclaim, but in an independent action, the judge may at any time order that such counterclaim be excluded.

4. If, in any case in which the Defendant sets up a counterclaim, the action of the Plaintiff is stayed, discontinued, or dismissed, the counterclaim may nevertheless be proceeded with.

5. Where in any action a set-off or counterclaim is established as a defence against the Plaintiff's claim, the judge may, if the balance is in favour of the Defendant, give judgment for the Defendant for such balance, or may otherwise adjudge to the Defendant such relief as he may be entitled to upon the merits of the case.

l. Within 8 days after the time limited for filing notice of defence has expired, whether notice of defence has been filed or not, the plaintiff or his Counsel shall attend at the office of the Registrar and request the Registrar to set the case down for trial. The Registrar shall thereupon enter the case in the list for hearing on a day not earlier than 28 days from the day of setting down.

2. The Plaintiff, not later than 14 days before the date for which the case has been fixed for hearing in accordance with rule 1 of this Order, shall cause to be served on the defendant or defendants a Notice of Trial in or to the effect of form No. 3 in the first Schedule hereto, and thereupon file in the office of the Registrar a copy of the Notice of Trial together with an affidavit of service of the Notice. Should the defendant not appear when the case is called on for hearing then unless service of Notice of Trial is proved the Judge may strike out the case.

Should the Plaintiff fail to file and serve Notice of Trial as in this Order provided then the Defendants may apply to the Judge to have the case struck out.

(a) If a writ has not been served on the Defendant within 1 year the issue, or within such further period as the Court may allow; or

(b) If the Plaintiff fails to set the case down for trial within 2 years after service of the writ on the Defendant; or

(c) if the trial of an action has been adjourned sine die and the Plaintiff fails to restore the case for trial within 2 years from the date when it was so adjourned.

Provided that no action shall be struck out under this Rule unless the parties have been given not less than 28 days notice of the Court's intention. (Inserted by G.S. 1/87)

1. A copy of the list of cases for hearing at any sittings of the Court shall be kept in the Registrar's office and shall be available for inspection by any person. Unless all parties agree and the presiding judge approves, no case shall be called on for hearing unless it is in the said list.

2. All cases shall be called on for hearing in the order in which they are shown in such list unless the presiding judge otherwise orders.

3. (1) Upon the trial of any action, at the close of the case of the party who begins, the opponent shall state whether or not he intends to adduce evidence.

(a) he may open his case before adducing evidence, and also address a second time at the close of the evidence in the trial; or

(b) he may reserve his address, if he thinks fit to do so, until the close of the evidence in the trial.

(3) If at the close of the case of the party who begins, the opponent states that he does not intend to adduce evidence, the party who begins may address a second time, and the opponent shall then have the right of reply.

1. Every application to stay proceedings on a verdict shall be by summons to the Judge supported by an affidavit setting out the grounds of the application unless made to the presiding Judge in Court, immediately after the verdict is given.

2. Where a stay of proceedings is granted, any proceedings on the verdict shall be stayed until the time limited for appealing has expired and if a Notice of Appeal is duly lodged within the prescribed time then the stay shall continue until the appeal is disposed of or until the Judge otherwise orders. (Amended by Act 46 of 1988.)

3. When granting a stay of proceedings the Judge may order that security be given.

(a) when such order is made at the request of the Plaintiff, such amount in respect of the Defendant's costs of the action as may be assessed by the Judge;

(b) when such order is made at the request of the Defendant the amount of the verdict and such amount in respect of the Plaintiff's costs of the action as may be assessed by the Judge.

5. The filing of a Notice of Appeal shall not per se operate as a stay of proceedings or execution.

1. The fees under these Rules to be demanded and paid in the Court office, except where otherwise expressly provided, shall be those set out in the second schedule hereto.

2. No fee shall be charged or payable in any case in which such fee if charged would have to be paid by any Government Department.

3. Notwithstanding anything contained in these rules the Judge may in any particular case waive compliance with anything contained herein and may make such order as to him seems necessary to ensure that justice will be done.

To .............................................. of .............................. (Defendant)
Whereas the abovenamed Plaintiff has commenced an action against you in this Court:

We command that if you desire to contest his claim you do, within twenty eight days after service of this writ upon you, file in the office of the Court a notice of intention to defend in the form prescribed by the Rules of Court and serve a copy thereof on the Plaintiff or his legal representative. And take notice that such notice of intention to defend may be filed on your behalf by your legal representative or by yourself in person.

And further take notice that if you fail to file such notice of intention to defend within the time limited as above you may not be allowed to raise any defence to the action and the action may be heard in your absence.

And further take notice that the Plaintiff does not require this case to be tried by a jury.

Witness the Honourable Mr. Justice ..............................................................judge of our said Court this .................. day of ....................................... 19...

The plaintiff Claims: (Set our particulars of the claim)
This writ was issued by ......................... of ....................

This case will be heard at the first sittings of the Court in its civil Jurisdiction after the time limited for filing Notice of Defence has expired.

This writ was served on me .......................... of ............... on ........ of ......................... who is personally known to me (or words to show the server identified the Defendant) on the ............. day of ........... 19.... at ...................................... at the hour of ......................................

Take Notice that I, the abovenamed Defendant intend to defend this action and to rely upon the following grounds of defence:

And further take notice that I do (do not) require this case to be tried by a jury.

Take Notice that this case has been set down for trial at ......................on the ...........day of ..............19.... .

RULE
1. Short title and application.
2. Interpretation.
3. Amounts allowable.
4. Charge just and reasonable.
5. Scales of costs.
6. Detailed statement of bill of costs.
7. Failure to file bill of costs.
8. Taxing officers.
9. Power of taxing officer.
10. Authority to arrange and direct parties to attend.
11. Filing bill of costs.
12. Serving of bill of costs.
13. Time for appeal elapsed.
14. Absence of party.
15. Allowing costs, charges etc.
16. Costs or expenses not allowed.
17. Discretion of Court or Judge.
18. No provision made for costs.
19. Costs reserved.

1. These Rules may be cited as the Supreme Court Taxation of Costs Rules and shall apply to bills of costs and taxation thereof between solicitor and client as well as between party and party and in every jurisdiction of the Court unless express provision is made to the contrary or the circumstances otherwise require.

2. In the construction of these rules unless the context or subject matter otherwise indicates or requires-

"cause" includes any suit, action or other original proceeding between a plaintiff and a defendant;

"defendant" includes any person served with any writ of summons or other process;

"plaintiff" includes any person seeking any relief against any other person by any form of proceeding;

3. On the taxation of costs the amounts allowable shall be in accordance with the items set out in the Schedule hereto.

4. Whenever no specific charge is provided in the said schedule for work properly done by a solicitor such charge may be made as is just reasonable by comparison with the other charges therein.

Provided that a judge in making an order for costs may, if he thinks that there are special circumstances, order that the costs be taxed on either the higher or lower scale notwithstanding the amount of the claim.

6. Every bill of costs rendered by a solicitor to his client or to another party shall be a detailed statement of the work done by the solicitor or his agents and employees and the fees, charges and disbursements therefor, and in the case of a bill rendered to a client shall be accompanied by an account of moneys received from or on behalf of the client and moneys paid to or on behalf of the client.

7. Whenever a party entitled to costs from another party or from a fund fails to file his bill of costs for taxation within a reasonable time after requested to do so, the taxing officer may, if satisfied by an affidavit of the foregoing matters, fix a time within which the party entitled to costs shall file and serve his bill and if such party fails to file his bill within the time so fixed or within such further period as the taxing officer considers reasonable, the taxing officer may certify such failure and allow the defaulting party's cost at such nominal or other amount as he thinks fit.

8. The Taxing Officers shall be the Judges and the Registrar of the Supreme Court.

Should the Judge direct the Registrar to carry out a taxation such taxation shall be carried out under the control and direction of the Judge and shall be regarded as the Judge's taxation.

9. Every taxing officer shall, for the purpose of any proceeding before him, have power and authority to summon and examine witnesses either orally or upon affidavit, and to require the production of books, papers and documents, and for such purposes to issue subpoenas, to administer oaths, to make separate or interim certificates, to require any party to be represented by a separate solicitor, and to do such other acts as may be directed by these rules or by the Court or a Judge.

10. The taxing officer shall have authority to arrange and direct what parties are to attend before him on any taxation of costs and may disallow the costs of any party whose attendance he considers unnecessary.

11. Ever bill of costs for taxation shall be filed in the Supreme Court office and be endorsed with the name and address of the person by whom it is so filed.

12. A copy of the bill of costs as filed, endorsed with a notice of the date and hour fixed for taxation, shall be served by the party filing the bill upon all parties entitled to attend on the taxation, or their solicitors, not less than 7 days before the day so fixed for taxation:

Provided that the taxing officer may, in special circumstances, dispense with the service or reduce the number of days notice required by this rule.

13. A bill of costs upon any verdict, order or award may be taxed notwithstanding the time for appeal therefrom or for setting aside the award or any stay of proceedings has not elapsed.

14. A taxing officer may proceed with the taxation of a bill of costs notwithstanding the absence of any party interested therein provided that he is satisfied that the provisions of rule 12 hereof have been complied with.

15. The taxing officer shall allow all such costs, charges and expenses as appear to him to have been necessary or proper for the attainment of justice or for maintaining or defending the rights of any party.

(a) any costs in respect of work done prematurely and not subsequently proving of use in the cause or matter;

(b) any costs which appear to him to have been incurred or increased through negligence, mistake or over-caution;

17. The costs of every interlocutory application, including applications for appointment of a next friend or guardian ad litem, for extension of the time for making any application or taking any step or proceeding, or for postponing or fixing the time of hearing of any cause or matter, shall be in the discretion of the Court or judge to whom the application is made, and such Court or judge may make such order in regard thereto as in all the circumstances appears proper.

18. Whenever the order of the Court or judge on an interlocutory application makes no provision for the costs thereof, such costs shall be in the discretion of the taxing officer:

Provided that no costs shall be allowed to a party in respect of an application by summons for extension of time or fixing a date of hearing unless the party applying has first unsuccessfully sought the consent of the other party or parties to the course ultimately approved.

19. Whenever an interlocutory application has been disposed of, but the costs thereof have been reserved, such costs shall not be allowed to either party on taxation without a direction from the Court or judge who reserved such question.

	Lower Scale (not exceeding)	Higher Scale (not exceeding)
	$	$
1. Instructions for and letter before action or defence .................	2.50	5.00
2. Instructions to sue, inclusive of preparation, issue, service and affidavit of service of a writ of summons ...............................	15.75	31.50
For each additional plaintiff ..............................................	5.00	15.00
3. On judgment in default of appearance or defence where no application to the Court or a Judge is required including entry of a consent judgment or a judgment after discontinuance ................	15.00	21.00
4. Instructions to defend inclusive of preparation, filing and service of appearance or defence ........................................	15.75	31.15
5. Instructions for and preparation of affidavit of list of documents pursuant to order down to delivery of affidavit ........................	10.50	21.00
6. Instructions for and preparing for trial inclusive of instructions for and preparation of brief ................................................	31.50	63.00
7. Appearance at trial of an action of proceeding (First Day) ........	52.50	157.50
8. Brief fee to extra Counsel in respect of any proceedings, if certified for, per day .......................................................	21.00	52.50
9. Refreshers to Counsel in respect of any proceedings, if certified for, per day ..................................................................	21.00	105.00
10 (a) Preparation for and attendance on Motions, and other applications .................................................................	5.25	10.50
(b) In addition for each adjourned hearing..............................	5.25	5.25
(c) In addition for affidavit if necessary .................................	5.25	5.25
11. Drawing up any Order ................................................	5.25	5.25
12. Taking accounts, making inquiries and other similar proceedings before the Registrar or in Chambers, per day ...........	10.50	21.00
13. Issuing and service of a subpoena for each witness ...............	5.25	5.25
14. Where in consequence of the distance involved it is necessary to effect service by an agent ..............................................	5.25	5.25
15. Appearance on the taxation of a Bill of Costs .....................	5.25	10.50

APPEALS

16. Preparation and filing of a Notice and Petition of Appeal .......	10.50	21.00
17. Instructions to oppose an Appeal ....................................	10.50	21.00
18. Conducting Appeal -
(a) first day .........................................................	31.50	63.00
(b) for each extra day .............................................	21.00	42.00
19. Attending to hear reserved judgment ...............................	10.50	10.50
20. In any case a Judge of the Supreme Court may for special reasons certify for an increase in any of the above charges, of such amount as he thinks fit.

Intending applicants for Probate or Letters of Administration shall not less than 2 months before making application to the Supreme Court pursuant to The Probate and Administration Act cause to be inserted in the Chronicle a notice of not less than 2 months to creditors of the deceased in the following form-

Re ................................. deceased late of ......................................who died on the.............................day of...............................

NOTICE IS HEREBY GIVEN that as I intend to apply to the Supreme Court for Probate/Letters of Administration* in the estate of the above-named deceased, creditors and others having claims against the state of the above-named deceased and also all persons having the custody of goods, deeds or other documents belonging to the deceased are requested to send particulars thereof in writing to the undersigned on or before the .................day of .............................................

1. Subject to the provision in rule 2 hereof a magistrate shall not register any agreement required to be registered by the Contract Act unless the agreement together with the duplicate thereof have been forwarded to him within 14 days from the execution thereof.

2. If any agreement together with the duplicate thereof is forwarded after the expiry of 14 days as required the Judge of the Supreme Court may at his discretion waive the requirement of rule 1 hereof for good reason shown.

1. These rules may be cited as the Supreme Court (Change of Name) Rules and shall apply to all Tongan subjects by birth or naturalisation other Nobles and Matapules who are estate holders, and relate only to change of surname.

2. Application shall be by deed in form A of the First Schedule hereto which shall be registered and enrolled in the Supreme Court on payment of the fees prescribed by these Rules.

(a) a married woman must produce her certificate of marriage, and must, unless good cause is shown to the contrary, obtain the written consent of her husband to her change of name. Such consent must be endorsed on the deed and must be witnessed by a Magistrate or the Registrar of the Supreme Court;

(b) a widow must produce her certificate of marriage and the certificate of death of her deceased husband;

(c) a divorced woman who has not remarried must produce the decree absolute of divorce.

5. For the purpose of identification the deed must be accompanied by an affidavit of a Tongan subject of over 18 years of age who has personally known the applicant for not less than 10 years.

7. If the applicant is under 18 years of age the application must be made by a parent or legal guardian of the applicant. If the applicant is under 18 but over 16 years of age his or her signed consent must be endorsed on the deed and duly witnessed.

8. A notice of change of name in form B of the First Schedule must be advertised in the Government Gazette after enrolment and on proof of such advertisement and on payment of the fee prescribed in the Second Schedule hereto the Registrar of the Supreme Court will deliver to the applicant the certificate of enrolment.

By this Deed I the undersigned ....................................................... (new Name) of ................................................................ lately called ..................... (old name) a Tongan subject by birth/naturalization do hereby:-

1. Wholly renounce relinquish and abandon the use of my former surname of ................ and in place thereof do assume from the date hereof the surname of .................................................................................. so that I may hereafter be called known and distinguished not by my former surname of ......................................................... but by my assumed surname of.....................................

2. For the purpose of evidencing such my determination declare that I shall at all times hereafter in all records deeds and writings and in all proceedings dealings and transactions as well private as public and upon all occasions whatsoever use and sign the name of ..................................

3. Expressly authorise and request all persons at all times hereafter to designate and address me by such assumed surname of ............. accordingly.

In Witness whereof I have hereunto subscribed my former and adopted names of ......................................................................................................................................................and .................................................................................................. and affixed my seal this day of ....................................................

I ........................................ of ......................................... heretofore called and known by the name of .................................. a Tongan subject by birth/naturalisation, hereby give public notice that on the ............................. day of ....................... I formally and absolutely renounced and abandoned the use of my said surname of ...................................... and assumed and adopted in place thereof the surname of ....................................... . And further that such change of name is evidenced by a Deed dated the ................ day of ........ under my hand and seal duly executed by me and attested enrolled in the Office of the Supreme Court of Tonga at Nuku'alofa on the ................... day of ............................................................

Certified that this change has been enrolled in The Central Registry of the Supreme Court of Tonga.

"taxing master" means a taxing officer of the Supreme Court as in the Supreme Court Taxation of Costs Rules.

3. These rules apply in relation to the service of any process required in connection with civil or commercial proceedings pending before a court or other tribunal of a foreign country, being a country with which there subsists a Convention on Legal Proceedings in Civil and Commercial Matters providing for service in the Kingdom of Tonga of process of the tribunals of that country where a letter of request from a consular or other authority of that country requesting service on a person in the Kingdom of Tonga of any such process sent with the letter is received by the Registrar of the Supreme Court.

4. In order that service of the process may be effected in accordance with this rule the letter of request and the process to be served must be accompanied by copies of translations of such documents into Tongan.

5. Subject to any enactment which provides for the manner in which documents may be served on bodies corporate and to any special provisions of the relevant Convention on Legal Proceedings in Civil and Commercial Matters, service of the process shall be effected by leaving the original process or a copy of it, as indicated in the letter of request, and a copy of the translation with the person to be served.

6. After service of the process has been effected or (if such be the case) attempts to effect service of it have failed, the process server shall leave with the Registrar of the Supreme Court an affidavit made by the person who served, or attempted to serve, the process stating when, where and how he did or attempted to do so, and a statement of the costs incurred in effecting, or attempting to effect, service.

(1) that the process or a copy thereof, as the case may be, was served on the person, at the time, and in the manner, specified in the Certificate or, if such be the case, that service of the process could not be effected for the reason so specified; and

(2) that the cost of effecting, or attempting to effect, service, as certified by a taxing master, is the amount so specified.

8. The certificate given under rule 7 shall be sealed with the seal of the Supreme Court for use out of jurisdiction and shall be sent to the Chief Secretary and Secretary to Cabinet for onward transmission to the consular or other authority by whom the request for service was made.

9. A statement of the costs incurred in effecting, or attempting to effect, service under these rules shall be submitted to a taxing master who shall certify the amount properly payable in respect of such costs.

10. The Attorney-General may appoint a process server for the purposes of these rules. (Amended by Act 46 of 1988.)

3. These rules apply in relation to the taking of evidence in the Supreme Court of Tonga for use before a Court or other tribunal of a foreign country before which there is pending any civil or commercial matter, being a country with which there subsists a Convention on Legal Proceedings in Civil and Commercial Matters providing for the taking of such evidence.

4. In order that such evidence may be taken an application for an order of a Judge of the Supreme Court must be made ex-parte to the Registrar by a person duly authorised to make such application on behalf of the foreign court or tribunal in question and must be supported by affidavit.

5. There must be attached to the affidavit in support thereof the letter of request, certificate or other document evidencing the desire of the court or tribunal to obtain, for the purpose of a matter pending before it, the evidence of the witness to whom the application relates or the production of any documents and, if the letter of request, certificate or other document is not in the Tongan language, a translation thereof in that language.

6. Where a letter of request or other document is received by the Registrar for the taking of such evidence and no person is named in the document as the person who will make the necessary application, the Registrar shall send the document to the Solicitor-General who shall make an application to a Judge of the Supreme Court for an order as described in rule 4 and take such other steps as may be necessary, to give effect to the request.

7. The compulsory measures to be taken for the attendance of witnesses and the fees to be charged for the obtaining of such evidence shall be according to the Laws of Tonga and the evidence shall be taken and recorded according to the rules and practice of the Supreme Court of Tonga pertaining to the examination and cross-examination of witnesses and each and every witness shall sign his deposition in the presence of the judge taking the evidence. Provided that if the requesting State requests some alternative procedure not incompatible with the laws of Tonga the court may follow such alternative procedure.

8. The depositions referred to in rule 7 shall be signed by the judge taking the evidence and when so completed the Registrar shall give a certificate sealed with the seal of the Supreme Court identifying the documents annexed thereto, that is to say, the letter of request, certificate or other document from the Court or tribunal out of the jurisdiction requesting the taking of evidence, the order of the Court and the deposition taken in pursuance of the order and shall send the certificate with the documents annexed to the Chief Secretary and Secretary to Cabinet for transmission through diplomatic consular channels to the foreign Court or tribunal.

1. These Regulations may be cited as the Supreme Court (Allowances to Jurors and Witnesses) Regulations.

2. Jurors and witnesses called by the Crown attending trials before Supreme Court in either civil or criminal causes shall be allowed the amounts specified in the Schedule hereto, provided that where any juror or witness shows to the satisfaction of the Registrar of the Supreme Court that he suffered loss by reason of his attendance at Court and such loss is shown to be greater than the amount of fee allowed to the juror or witness, the Registrar may grant to such juror or witness an amount equal to the loss shown to have been sustained or a sum of $2.10 whichever is the less.

3. Jurors and witnesses attending at trials as aforesaid shall also be allowed at the discretion of the trial judge maintenance expenses reasonably incurred but not exceeding a maximum of $1.50 per day and actual expenses reasonably incurred in travelling.

4. The trial judge may in any particular case disallow any fees or expenses payable to a witness under these Regulations.

5. In a criminal trial the trial judge may, if in the particular circumstances he deems it reasonable, order that the provisions of these Regulations shall apply to any witness called by the defence as if such witness had been called by the Crown.

(a) Jurors ...............................................	$0.30 per hour or part thereof up to a maximum of $2.10 per day; minimum $0.60
(b) Witnesses-
(1) Professional men, merchants, bankers, planters, etc. ......................	$1 per day
(2) Master tradesmen, mechanics, clerks ...............................................	$0.70 per day
(3) Labourers, workmen and other ordinary witnesses ...........................	$0.50 per day
(4) Female witnesses .......................	According to their station in life such sum as the Registrar may deem fit not exceeding the maximum for a male witness of the same class
(6) Civil servants .............................	A sum equal to travelling allowance had travelling allowance been payable

The following practice direction is issued by Acting Chief Justice Mr David Tupou for the guidance of those using the Winding-Up provisions of the Companies Act:

1. If particulars of the debt have already been supplied to a debtor it is permissible to state in Notice of Demand that the debt arises pursuant to:

However should the debtor query this statement full particulars of goods supplied less payments made must be supplied to him once asked for. This must be done before further steps are taken to proceed to wind the debtor company up.

The notice of demand may be signed on behalf of a creditor by its authorised agent or solicitor.

2. After the expiry of 3 weeks from service of the notice of demand if there has been no payment or security obtained to the reasonable satisfaction of the creditor a petition to wind up the Company may be presented to the Court. Petitions for companies based on islands other than Tongatapu can be filed at Nuku'alofa, however the trial judge has a discretion as to where the hearing will occur. Before the petition is heard at a call-over it must be supported by:

The petition may be accepted for filing by the Court supported only by the affidavit of service but it cannot be heard at call-over until the affidavit of verification of the petition is also filed with the Court.

3. The petition should be given a Chambers date for preliminary call-over by the Registrar and then served on the respondent. However the call-over date must be not less than 21 days from the date of service upon the respondent. The petition served upon the respondent must advise him of the need to file sworn affidavits 7 days before the call-over date if he wishes to defend the petition. A suitable notice would be as set out in the Schedule. The affidavits must show that the petition is disputed in good faith and upon substantial grounds in order to prevent advertisement of the petition and a hearing date being allocated.

4. At a preliminary call-over in Chambers the Judge can ascertain whether or not there is a genuine dispute. If so he may stay or dismiss the petition. To save expenses he could decide the dispute as to the debt. However usually the petition will be adjourned to enable the question to be decided by action. The Judge has the power to order the amount of the alleged debt to be paid into Court.

If at call-over no cause is presented that shows the petition is disputed in good faith and upon substantial grounds a hearing date for the petition can be set by the Court and leave to advertise the petition granted.

5. The date of hearing of the petition must be advertised in the Tonga Chronicle to give notice to other creditors. The date of hearing cannot be earlier than 14 days from date of advertisement. Advertisement must occur not later than 6 months from call-over.

6. At the hearing the respondent may still bring up grounds of dispute not raised at call-over. Should the respondent be successful in having the petition stayed because of a point not raised at preliminary call-over the Court has the discretion to order that the stay be subject to payment of expenses incurred by the petitioner bringing witnesses to the hearing.

7. At the hearing, in the absence of a dispute as to the debt made in good faith upon substantial grounds the Court may make an order winding up respondent.

Take notice that if no grounds are presented to the Judge at the Call-Over date of this matter that show this petition is disputed in good faith and upon substantial grounds a hearing date will be set for the winding-up of your company.

The hearing date of this petition will then be advertised in the Tonga Chronicle not later than 6 months after the call-over date. The petition may be heard by the Court at any time after 14 days have lapsed from the date of advertisement.

If you wish to dispute the debt which is the subject-matter of this petition sworn affidavits must be filed on your behalf by .......................... 19...., seven (7) days before the call-over date.

If you are in any doubt as to your position you should consult your legal advisor immediately.

In the Supreme Court of Tonga Civil Jurisdiction	}	No ................. of 19...
Between		Plaintiff.
and		Defendant.

In the Supreme Court of Tonga Civil Jurisdiction	}	No ................. of 19...
Between		Plaintiff.
And		Defendant.

In the Supreme Court of Tonga Civil Jurisdiction	}	No ................. of 19...
Between		Plaintiff.
And		Defendant.

	$
1. Filing Election of Next Friend	2.00
2. Application and Order for appointment of Next Friend (including affidavits in support of application)	4.00
3. Notice of Defence	5.00
4. Setting down, and filing Notice of Trial	3.00
5. Application for Stay of Proceedings	5.00
6. (All other fees as set out in the Schedule to the Court Fees Act.) (Substituted by G.S. 30/84)

Tonga Consolidated Legislation

Supreme Court Act