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Ve'ehala v Kingdom of Tonga [2014] TOCA 23; AC 25 of 2014 (31 October 2014)

IN THE COURT OF APPEAL OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

AC 25 of 2014
[CV 91 of 2011]

BETWEEN:

SIOSAIA VE'EHALA
Appellant

AND:

KINGDOM OF TONGA
Respondent

Coram : Salmon J

Handley J

Hansen J

Tupou J

Counsel : Mr L. Niu SC for the Appellant
Mr Kefu, A/AG for the Respondent

Date of Hearing : 20 October 2014

Date of Judgment : 31October 2014

JUDGMENT OF THE COURT

[1] This application for leave to appeal is against a decision of the Lord Chief Justice striking out the appellant's amended statement of claim. The claim sought damages for wrongful dismissal from the Police Force.

[2] The Chief Justice took the view that the proceeding, though presented as a private law claim for damages arising from breach of contract, was in reality an out of time motion for judicial review without leave having been obtained beforehand.

[3] In para 9 of his judgment the Chief Justice said:

"In my view both counsel have overlooked the fundamental point which is that as a general rule, public servants do not have contracts of employment. Subject to statutory limitations the Crown has the right to terminate the employment of Public Servants at will. The statutory limitations invariably import the rules of natural justice into the dismissal procedure and when those rules are not observed the procedural shortcomings may lead to the dismissal being quashed. When this happens the officer is regarded as not having been dismissed at all, rather as having retained the entitlements, including salary, which he would have continued to enjoy had he not been wrongfully dismissed. Ordinarily there is no room for an award for damages once certiorari has issued in respect of an unlawful dismissal."

[4] The Chief Justice then said that the statement of claim while it asserts the existence of a contract, provides no detail of it. He referred to Ram Prasad v The Attorney General [1999] FJCA 52 where the Fiji Court of Appeal held:

"... the judge was correct to conclude that, as the appellant had been appointed under a statutory provision, public law applied to his appointment and any claim resulting from his dismissal could only be brought by an application for judicial review".

With respect we are of the view that the law has developed since that judgment was given. As will be seen we hold the view that the appellant's claim is one in private law.

[5] The Chief Justice concluded that although no application to strike out had been made the Court had the power to take this step of its own initiative and he proceeded to do so.