[1995] Tonga LR 8

THE SUPREME COURT OF TONGA

TOULIKI TRADING LTD AND ANOR.

v

FAKAFANUA & ANOR

Supreme Court, Nuku'alofa
Lewis J
Civil Case 389/94

8, 9, 10, 11, 14, 15, 16, 21, 22, 23, 24, 28, 29 November, 1994, 23 February, 1995

Constitutional law - corporation - challenges –jurisdiction
Constitutional law - Act of Legislative Assembly –jurisdiction
Administrative law - unreasonableness - natural justice
Damages - application for judicial review
Legislative Assembly - internal proceedings –jurisdiction

The two plaintiff companies engaged in the squash pumpkin export trade to Japan, brought an application for judicial review of the (a) Constitutional validity of the Licence Act, the Licence Amendment Act 1993 and Order-in-Council made in 1994 (called the Licences (Squash Export) Order 1994) and the 1994 squash export quota allocation and (b) invalidity of the Order-in-Council and the 1994 quota allocation on various administrative law grounds, the first defendant being the Minister of Labour Commerce so and Industries at the relevant times and the second defendant being the Kingdom of Tonga.

Held:

1. Judicial review proceedings are able to be brought against the Kingdom of Tonga.

2. There being no cause of action against a joined third defendant and it having no interest in the proceedings and no role to play representatively or otherwise it should be discharged.

3. A claim for damages can be made in the same proceedings as an application for judicial review enabling a court, should it grant the declaratory relief sought, to proceed to hear and assess the damages claim, instead of the claimant having to prosecute a subsequent damages claim.

4. The court did not possess jurisdiction to inquire into the internal proceedings of the Legislative Assembly until such time as a breach of the Constitution can be shown (and such could not be here).

5. The court does have jurisdiction to declare invalid as unconstitutional an Act passed by the Legislative Assembly; and such may be heard and determined in judicial review proceedings.

6. The corporate plaintiffs do, and did, have standing to make and amount constitutional challenges, as do natural persons.

7. Neither the Licences Act, the Amendment Act, nor the Order-in-Council were discriminatory of the squash industry.

8. The appropriate interpretive approach to such a constitutional challenge is a broad and purposive one.

9. The plaintiffs in such a challenge carry the persuasive onus of demonstrating the unlawfulness and invalidity of the impugned legislation.

10. The constitutional argument that the means of control adopted by the Legislature must be particularly related to the identifiable ends, the onus being on the Crown to justify the prima facie invasion of a constitutional right, has no role in Tonga, and there is no such shifting persuasive onus.

11. Cl.14 of the Constitution is not an explicit qualification of Cl.1.

12. The freedoms guaranteed in Cl.1 are not absolute.

13. The regime in the Licences Act and the Amendment Act did not breach Cl.1. No unjustifiable discrimination existed in any sense, let alone within a class or group.

14. Clauses 4, 14 and 17 underline and add to the C1.1 guarantees, but taken individually or in any combination or collectively no discrimation[sic], as alleged was revealed.

15. The Wednesbury tests as to unreasonable exercise of a discretion and as to "unreasonableness" were applicable in Tonga.

16. There was no failure by the Minister or the Privy Council to consult the plaintiffs or consider their complaints.

17. The affirmation of a statutory instrument, such as the Order-in-Council in issue here, by the Legislative Assembly, does not bar review by the Court (and in any event such an argument was not raised in the pleadings, and had to be).

18. The claims that the Minister failed to act reasonably and in accordance with the principles of natural justice, fairly, without malice, ill-will or hostility, without breaching undertakings or agreements, without misconduct, without pre-judgment, bad faith and without acting outside the scope of his lawful powers failed in all respects.

19. But the Minister did take into account, improperly, the plaintiffs "breaches" of the 1993 allocations when determining the allocations for 1994. However that impropriety was one consideration among a number and standing alone it did not vitiate the 1994 quota allocation.

20. The plaintiffs' applications were refused.

NB. On 31 May 1996 the Court of Appeal dismissed the plaintiffs' appeal from this judgment reported in [1996] Tonga LR.

Cases considered:

Air Nelson Ltd v Airways Corp. (1992) 6 PRNZ 16
R v Finau - Ward CJ 15/9/94
Kalaniuvalu v F.W.C.T. 640/93 Ward CJ 2/5/94
Rees v Crane [1994] All ER 833
Fotofili v Siale - Privy Council Nos. 1 & 2/87
Pepper v Hart [1993] 1 All ER 42
Scientology v Johnson-Smith [1972] 1 All ER 378
Prebble v TVNZ [1994] 3 All ER 417
British Railways v Pickin [1974] 1 All ER 609
Mafile'o v Porter- [1989] Tonga LR 14
"Tonga Ma'a Tonga" (1911) 1 Tonga LR 9
Bolton v Graham [1957] 1 QB 159
R v ICR Haulage [1944] KB 551
AG (Trinidad &Tobago) v Whiteman [1991] 2 AC 240
Finau v Alafoki - [1989] Tonga LR 66
Hinds v R [1976] 1 All ER 353
James v Commonwealth of Australia (1939) 62 CLR 339
Cole v Whitfield (1987) 165 CLR 360
Assd. Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223
E.O.C. v Sec. of State for Employment [1994] 1 All ER 910
Jumbanna Coalmine v Victorian Coalminers (1908) 6 CLR 309
Sec. of State for Education v Thameside [1987] AC 1014
Laker v Dept. of Trade [1977] 1 QB 643
White v Kuzych [1951] AC 585
Bd. of Education v Rice [1911] AC 179
Civil Service Unions v Minister for Civil Service [1985] AC 374
R v Sussex Justices [192411 KB 256
Sydney v Campbell [1925] AC 338

Statutes considered:

Crown Proceedings Act s.5
Civil Law Act
Licences Act ss 4, 5, 9
Licences Amendment Act 1993
Constitution Clauses 1, 4, 14, 17, 79, 82, 90
Interpretation Act s.34

Rules of Court considered:

Supreme Court Rules 1991 0.27

Counsel for Plaintiffs: Mr Harrison QC
Counsel for first defendant: Mr Edwards
Counsel for second defendant: Mr Taumoepeau

JUDGMENT

PRELIMINARY

In April of 1994, the plaintiff corporations sought and obtained leave to apply for judicial review "of the quota imposed on the plaintiffs on the export of pumpkin squash to Japan from the Kingdom of Tonga..." on numerous grounds argued at an ex parte hearing.

Amendments to the statement of claim, made over a number of months leading to trial, have changed neither the nature of the application nor its scope. The amendments focus issues more clearly and eradicate poor pleading. The leave to apply for judicial review, initially granted on the original, (now twice amended statement of claim), has remained the basis upon which this application has proceeded. Some recited particulars have not been pressed by the plaintiffs in some claims. Some have been abandoned by reason of rulings made along the way.

THE CLAIMS

In barest outline, the circumstances leading to these claims are now set out. The plaintiffs are exporters of pumpkin squash. The common links between the plaintiffs are the nature of their business and the witness Feleti Sevele. Dr. Sevele is inter alia, the Managing Director of SQUASH EXPORT COMPANY LIMITED (SECL) and Financial Managing and Marketing Consultant to TOULIKI TRADING ENTERPRISES LIMITED (TTEL).

The present application is a judicial review by leave of the court dated the 1st day of May 1994, "of the quota imposed on the plaintiffs on the export of pumpkin squash to Japan from the Kingdom of Tonga for the 1994 season." It is and can only be a judicial review (that is, not a merits review,) of the methods employed by the defendants when imposing a quota on the plaintiff corporations (along with other exporters) on their exporting pumpkin squash to Japan in the 1994 season.

Some conflicting evidence has been led about the role Dr. Sevele has in TTEL, but I am satisfied that his role is that of Financial Managing and Marketing Consultant to that company. In that role he has a keen interest in TTEL.

The plaintiff companies came into being by incorporation, in the case of the second plaintiff SECL on the 24th of August 1990, and in the case of the first plaintiff, TTEL, on the 23rd of October, 1992.

Prior to 1987, there existed no regulation of the export of pumpkin squash or any other fruit by quantity from Tonga. Government regulated the quality of any fruit for export by means of the provisions of the Fruit Export Act.

In 1987, the first pumpkin squash destined for export, was grown in Tonga. For the years 1987 and 1988 the Tonga Growers Association organised the farmer/growers, overseeing production. Quality, grading, packaging, marketing and shipping were over seen by Group Trade Limited, a New Zealand Company.

The industry, except for the quality control referred to earlier, was not regulated by the Government of day. The tonnages exported in 1987 - 1988 were 153 and 917 metric tonnes. (Sevele Affidavit, para 18 and FVS/07).

In 1989 the Company, Group Trade Limited ceased to have any role in the industry and the Tonga Growers Association commenced supervision of the role Group Trade Limited had carried out in addition to its earlier functions.

The Tonga Growers Association was headed by HRH Prince Mailefihi as the Executive Chairman, Tevita Liti was Chairman and Mana Latu Secretary. Dr. Sevele was himself a Grower member of the association.

In 1990 the Tonga Growers Association divided in to two groups and went their separate ways. One group under the leadership of HRH Prince Mailefihi, the other with a group led by the witness Dr. Sevele and the witness Mana Latu.

The group led by HRH Prince Mailefihi became known as "Tonga Growers Multipurpose Cooperative Society Limited" (hereinafter "TGMCSL"). The group with Dr. Sevele was known as the "Vaheloto Growers" Association Limited until it became incorporated as "Squash Export Company Limited".

The Japanese Market to which the squash export from Tonga was being sent, was then and is now, a large consumer of the commodity. The volume of squash consumed by Japanese has ensured big demand. Tonga was and is a one of a number of squash exporting countries to supply it.

1991 brought about the expression of serious concern about the high volume of squash being exported from Tonga to the markets of Japan. That year, the first defendant, Hon. Fakafanua, was on the 22nd August appointed Minister of Labour Commerce and Industry.

On 22nd August 1991 the first defendant became the Minister of Labour Commerce and Industry. The Minister claims (and I accept) that at the time of his assuming control of the Ministry the squash season was underway and that he had very little to do with the management of the industry (from the standpoint of his portfolio), his predecessor, the Prime Minister and then Minister of Labour Commerce and Industry, Baron Vaea, had settled and attended to such arrangement as needed to be in place for the 1991 squash season.

It is clear from the reports ("report of the Government's squash investigation team to Japan" exhibit D1 to the affidavit of the first defendant, and from the "report of the Tonga Development Bank" annexed to the Sevele affidavit,) that the pumpkin squash export industry "had and should continue to have a far reaching effect on the economy of the Kingdom".

The Minister, the first defendant, received early warning that there was need for restriction and control of squash exports to Japan. He sent a "squash investigation team" to consider the concerns raised by the Japanese on the subject of squash exported from Tonga. The investigating team returned with five principal recommendations:-

- The volume of squash exports for the 1992 season must be restricted to 10,000 mt to 12,000 mt for the niche market.

- The number of exporting licences should be limited to exporting companies engaged in the industry or with proven performance over past years.

- The allocation of this limited quota should be based on the performances of the exporting companies over the past years.

- Appropriate regulations on Quarantine and quality standards be submitted for the approval of Cabinet; and,

- That Quarantine and quality control requirements be included in the MAF Budget for 1992 as well as in the Australian Bilateral Programme."

In terms of Ministerial method, the step must be seen as an objective and sensible one. Indeed the main criticism by the plaintiffs of the report of the investigating team appears to be that experts comprising part of its membership were not present so that its findings could made the subject of cross examination.

The plaintiffs have led evidence and made submissions that as a direct consequence of their taking leave of the Tonga Growers Association, Dr. Sevele and the plaintiffs with became disadvantaged. Much of the disadvantage the plaintiffs claim to have been caused by the Ministry of Labour Commerce and Industries and the Government, inter alia, in passing legislation which directly imposed

- An annual export quota for the export of squash.

- A discretionary allocation metric tonnage to the exporters.

The plaintiffs have constructed this application for review (for which they obtained appropriate leave,) by mounting six distinct claims. The destiny of the fourth, fifth and sixth claims, is dependant upon the success or failure of the first three claims. Accordingly I have adjourned claims four five and six, sine die.

Claims one two and three which are decided in this judgment, are very broadly, based as follows:-

1. Alleges the constitutional invalidity of the Licences Act, the Licences Act Amendment Act, the Order-in-Council and the 1994 quota allocation.

2. Further alleges the invalidity of the Order-in-Council on Administrative Law grounds.

3. Further alleges the invalidity of the 1994 quota allocation on Administrative Law grounds.

The particularity pleaded by the plaintiffs is complex, internally interwoven and extensive. Since this resume is in barest outline only, the pleading of particularity is not repeated. It is sufficient to say that as to the constitutional challenge to the legislation under review, the plaintiffs plead that as to the provisions of the Constitution, (clauses 1, 4, 14 and 17) the legislation unlawfully and/or unjustifiably remove or restrict the constitutional freedoms of the plaintiffs to ply their trade, dispose of their labour and the produce of their labour and their property.

The second claim, the invalidity of the Order-in-Council on administrative grounds, alleges invalidity of the Order-in-Council by virtue of a failure on the part of the defendants to take into account:-

- The Constitutional rights of the plaintiffs by reason of clauses 1, 4, 14, and 17 of the Constitution.

- The consequences of exporting beyond the quota set by the defendants whether by agreement or otherwise.

- No other countries exporting squash especially in the Pacific impose any quota or tonnage limitation for pumpkin squash.

- Quota imposition adversely effects growers.

- Historically prices were higher when no quota had been set by agreement or otherwise.

- Privy Council reached a decision which was unreasonable in fixing maximum quantity to be exported to Japan given foregoing factors.

- The Privy Council acted unfairly towards the plaintiffs and others in the last quarter of 1994 in fixing the quota because it failed to consult with the plaintiffs and others and denied them an opportunity to state their views, but consulted with Japanese importers.

The third claim, in alleging the invalidity of the 1994 quota allocation on Administrative Law grounds, inter alia claims there to be evidence which establishes that:-

- If the Order-in-Council is invalid then so is the 1994 quota allocation.

- That the first defendant was duty bound to allocate to licensees, the whole of the quota and not hold any back.

- That some allocatees had no licences as the first defendant purported to allocate the 1994 quota, since no licences had been issued in compliance with section 5(4) (b) of the Licences Act.

- That at all material times the first defendant was not in Law a "person authorised by the Minister of Labour and Industries and Privy Council."

- That in purporting to determine and allocate the 1994 quota allocation, the Minister took into account:-

- irrelevant and/or

- improper considerations or,

- demonstrated bad faith and/or

- bias and/or

- prejudgment

because he took into account deliberate misconduct and deliberate breaches of purported undertakings or agreements by the plaintiffs not to export more than agreed amounts in 1992 and 1993.

The allegation which occupied the greatest amount of time at the hearing was the allegation that the Minister acted with personal ill-will hostility and malice towards the plaintiff companies. This pleading contained in paragraph 25 of the statement of claim was extensively amended at trial consequent upon rulings made during trial. The plaintiffs did not pursue some of the pleaded particularity in paragraph 25.

The plaintiffs rely upon the allegation that the Minister falsely accused the plaintiffs of dishonesty and that the Minister had forced them to enter an agreement that they would not export beyond a certain tonnage in 1993 threatening that if they refused to enter the agreement that they would not be issued export licences for the 1993 season and that the plaintiffs fearing the Minister would withhold licences capitulated and signed the agreement limiting themselves to export less than they would have judged to be right.

The plaintiffs accuse the Minister of:-

- Self interest,

- Conflict of interest,

- Partiality and therefore,

- Bias against the plaintiffs in favour of the other licensees.

The particularity pleaded against the Minister includes allegations that he was substantially a grower and seller without licence and without the consent of Cabinet first had and obtained in breach of clause 24 of the Constitution, and that he grew sold and exported through MBM Company Limited of which his brother in law was Managing Director and favoured, it having real or notional bias, personal pecuniary interest and an indirect financial interest in the success of MBM Company Limited.

The plaintiffs allege that the defendant acted unfairly and in breach of the principles of natural justice reciting in para 25.1 of the statement of claim matters of his bringing into account considerations he was not entitled to bring into account namely:-

- Failure to consult with the plaintiffs or with exporters.

- That while taking into account the views of HRH Prince Mailefihi he did not take into account the view of the plaintiff companies.

- Introduced criteria for the assessment of participants in the industry but of did not follow them.

- Was acting unreasonably having regard to the matters set out above.

THE PARTIES

The plaintiff companies are at law Tongan independent corporations capable of suing and being sued. The first plaintiff, TOULIKITRADING ENTERPRISES LIMITED whose registered office is situated at Fakafanua Centre, Nuku'alofa was registered as a private company pursuant to the provisions of the Companies Act 1912 as amended on the23rd day of October 1992, and remained registered at all material times, (affidavit of Fred Sevele dated 30.05.94, hereinafter the "Sevele affidavit") para. 3, annexure FVS/02). The standing of the plaintiff companies is also considered in the context of the Constitution at p. 30 infra (and following).

The second plaintiff, Squash Export Company Limited, whose registered office is situated at Vaini/Ma'ufanga Tonga, was registered on the 24th day of August 1990 pursuant to the provisions of the Companies Act 1912 as amended and remained so yes registered at all material times, (Sevele affidavit, para. 4, annexure FVS/03).

At all material times the witnesses referred to below held the following respective positions:- The witness FELETI SEVELE was the Financial Managing and Marketing Consultant for the first plaintiff (Sevele affidavit para. 3) and a Director and Shareholder of the second plaintiff corporation (Sevele affidavit para. 4). The witness KESOMI SIALE was the Managing Director and a Shareholder of the first plaintiff TOULIKI TRADING ENTERPRISES LIMITED (hereinafter "TTE LIMITED"). The witness MANA LATU was the Company Secretary of the second plaintiff, SQUASH EXPORT COMPANY LIMITED (hereinafter "SEC LIMITED").

The first defendant is sued in his name but in his capacity as Minister of Labour Commerce and Industries.

The second defendant, the Kingdom of Tonga, is sued in respect of the alleged acts and omissions of the first defendant. In particular the plaintiffs allege that since the first defendant made the decision as to what export quota would be imposed ultimately in respect of pumpkin squash, the issues are justiciable on the basis that the decision was not one of policy.

Early in the pre-trial applications the second defendant moved to be struck from this review on the basis that the Crown Proceedings Act Cap 13 sections 4 and 5 do not allow proceedings by way of judicial review to be brought against the Kingdom.

The Crown Proceedings Act Cap. 13 as amended, section 5(1) provides: -

"(1) a person making any claim against the Kingdom whether in Contract or Tort, or for any other civil remedy, may in respect of the claim bring a suit against the Kingdom of Tonga in that name and style in the appropriate court."

The learned Solicitor-General submits that the words …"or for any other civil remedy" must be read ejusdem generis, with the words "Contract or Tort" preceding them. That whereas a claim in Contract and/or a claim in Tort are substantive claims for remedies sought, an application for judicial review is in the nature of a procedural application and not an application of a like kind with Contract and/or Tort in the legal sense.

The second defendant submits therefore that an application for judicial review cannot, on any proper construction of the phrase "any other civil remedy", be construed as being available to the plaintiffs so as to enable then to bring proceedings against the Kingdom of Tonga pursuant to the provisions of section 5(1) of the Crown Proceedings Act as amended. The second defendant claims that judicial review is not "any other civil remedy" within the meaning of section 5(1).

In my opinion, the argument cannot hold. In construing the Supreme Court Rules, to adopt such a narrow interpretation, is inappropriate.

Judicial review is a civil remedy. Judicial review is available as "relief" pursuant to provisions of O.27 Rule 1, and in that sense it must be construed as a civil remedy, that is, a remedy other than the remedy of Contract and/or Tort. Accordingly, I rule that the Kingdom of Tonga remain as second defendant to these proceedings.

The remaining matter which needs to be considered is the matter of the joinder and subsequent discharge from these proceedings, of the former third defendant MBM Company Limited. The plaintiffs made application to have a third defendant, the MBM Company Limited, joined to the proceedings. The first and second defendants formally objected to the application but did not pursue the objection with vigour. The MBM Company was joined pursuant to RSC O.9 rule 2(ii)(b).

The basis upon which the third defendant was joined, bears recounting. The plaintiffs' counsel submitted orally and by way of memorandum that in the interests of natural justice at least one of the exporters should be joined as a representative to the action on the basis of the New Zealand Court of Appeal decision in AIR NELSON LIMITED v AIRWAYS CORPORATION OF NEW ZEALAND LIMITED (1992) 6 PRNZ 16 (NZCA).

The order for joinder was made ex parte. After service with the proceedings and having acquired locus standi, MBM Company Limited proclaimed no interest in these proceedings and indeed made the point that since it had no role to play representatively or otherwise and since the plaintiffs' claims revealed no cause of action against it, it sought to be discharged with costs. MBM Company Limited was so discharged. The only dispute in the discharge order being costs, which question was resolved in its favour.

JURISDICTION

Judicial review is provided for by the Supreme Court Rules 1991 O.27 which provides as follows:-

"ORDER 27: JUDICIAL REVIEW

Rule 1

This Order applies to any action against an inferior Court, tribunal or public body (including an individual charged with public duties) in which the relief claimed includes an order of mandamus, prohibition or certiorari, or a declaration or injunction (in this order referred to as "judicial review").

Rule 2

(1) No application shall be made for judicial review unless the leave of the Court has been obtained in accordance with this rule.

(2) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is no good reason for extending that period.

(3) An application for leave shall be made ex parte by filing -

(a) a summons stating concisely the relief claimed and the grounds therefore;

(b) a copy of the proposed writ and statement of claim; and

(c) an affidavit verifying the facts relied on.

(4) The Court may grant the application without a hearing, but shall not refuse it without hearing the applicant.

(5) The Court shall not grant leave unless satisfied that the applicant has a sufficient interest in the matter to which the application relates.

(6) If the Court grants leave,

(a) it may do so subject to such terms as to costs and to giving security as it thinks fit; and

(b) it may grant such interim relief as appears necessary and just."

Both the first and second defendants submit that the scope of O.27 is limited to the exhaustive reliefs which it recites namely the remedies available by way of mandamus, prohibition, certiorari or a declaration or injunction.

O.27 uses the expression "any action in which the ... relief claimed includes an order of mandamus" etc. (my emphasis). The first and second defendants depend upon the use by the draftsman of the word "includes" for the efficacy of the expressio unius argument.

By reason of the provisions of the Civil Law Act (Cap.25) s.3 and s.4, the court, in a circumstance such as the present, (one in which provision has been made pursuant to an act in force in the Kingdom) must apply the Law of Tonga and may not apply the Common Law of England, the Rules of Equity and the Statutes of General Application in Force in England. That is not to say however, that a court, engaged in the process of the interpretation of Statute Law, may not resort to English or other persuasive authority in attempting to establish the clear intent of the Legislature.

The defendants maintain that Order 27 Rule 1, exhaustively recites the reliefs which the Tongan Parliament intended for use by litigants. Those reliefs it is submitted, do not include damages. The defendants argue that, (expressio unius,) "damages" are not contemplated and cannot be contemplated as part of the scope of Order 27. The decision in R v FINAU (Ward CJ) 15.09.94, is submitted by the learned Solicitor-General to be authority for the expressio unius argument.

Finau (supra) is a criminal prosecution which involves an indictment charging the accused with an offence which had no basis in law, along with two other offences for which there was basis in law and, as it transpired, in fact. FINAU, is in my opinion merely an example of a rule of interpretation at work in a case which depended upon its own facts for the application and consequence of the expressio unius principle.

The use of the word "includes" by the Parliamentary draftsman in R.S.C. Order 27, suggests that the intention of the Legislature was to "include" in the relief claimed by litigants who may choose to utilise judicial review, declaratory relief. Had the Legislature intended to exclude damages, it would, in my opinion, have unequivocally said so.

In his submissions the learned Solicitor-General referred to the decision of Ward CJ in KALANIUVALU v FREE WESLEYAN CHURCH OF TONGA 640/93 (Land Court Ruling delivered on 02.05.94 and in particular at p.3). The application was brought by way of motion by a defendant who sought to have certain sections of the statement of claims struck on the basis that the claim amounted to an "abuse of the powers of the court", that the plaintiff was "in the wrong forum" and on another ground, "had no standing." On the forum ground, the defendant argued that sections of the statement of claim seeking to challenge the decision of the Minister to pay compensation to the first defendant ought to have been made by way of judicial review.

The learned Chief Justice observed in his ruling that:-

"Judicial review allows the court to exercise a supervisory role over, inter alia, public bodies and tribunals. A Ministerial Act may be challenged by such an action and the special procedure laid down in O.27 is intended to define the limits of the right to obtain such an order."

I respectfully agree and adopt all that has been said on the matter of the scope of O.27 in KALANIUVALU by the learned Chief Justice. It is that aspect of O.27, that defines the "limits of the right to obtain such an order" referred to by the learned Chief Justice.

In KAKALA ET AL v THE KINGDOM OF TONGA, a decision of Ward CJ of 31.03.94, Dental Therapists, aggrieved at what they saw as a failure on the part of the defendant to fairly give proper consideration to their status and their pay, argued that the new salaries revision was unfair, arbitrary and deprived them of an advantage over other levels in the public service which they had a legitimate expectation would continue. The learned Chief Justice observed:-

"It is important to bear in mind that the remedy of Judicial review does not relate to the merits of the decision in most cases but to the method of decision making."

KAKALA assumes importance for other reasons later in this judgment, but for present purposes it is sufficient to say that the defendants in this case argue that if it be that the merits of the decision is not the subject of judicial review, then it "necessarily follows" that in Tonga, a claim for damages has no place in a judicial review application such as this one. Merits and damages, with respect, cannot be connected in that sense.

The nature of judicial review was further considered in LEONE v PALU & ORS, where Ward CJ said at page 3:-

"Judicial review is not an appeal from a decision but a review of the manner in which the decision was made. The difference is explained in CHIEF CONSTABLE OF THE NORTH WALES POLICE v EVANS (1982) 3 ALL ER 131 where Lord Brightman at 154 emphasised the danger of losing sight of the distinction.

"I turn ... to the proper purpose of the remedy of judicial review, what it is and what it is not. In my opinion the law was correctly stated in the speech of Lord Evershed in RIDGE v BALDWIN [1964] AC 40 at 96. His was a dissenting judgment but the dissent was not concerned with this point Lord Evershed referred to – "... a danger of usurpation of power on the part of the courts under the pretext of having regard to the principles of natural justice ... I do observe again that it is not the decision as such which is liable to review; it is only the circumstances in which the decision was reached and particularly in such a case as the present the need forgiving to the party dismissed an opportunity for putting his case. Judicial review is concerned not with the decision but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."

Those clear expressions of principle represent the law as it is in Tonga presently. In my view the plaintiffs have locus standi in this application, brought by writ, (as it must be, O.23 Rule 2(3)(b)). The court has jurisdiction, not only to hear the application for declaratory relief but, at a later time, to hear any application for damages which may arise should the plaintiffs or either of them be successful in obtaining declaratory orders.

True it is that the (Tonga) RSCO 27 provide exhaustive remedies for judicial review, however the case law which has grown up since the passage of the new and comprehensive amendments in England in 1977 giving rise to the passage of RSCO 53, are of assistance as persuasive authority in determining the intent of the Legislature in defining the limits of judicial review.

The UK legislation allows of claims for damages to be made conjointly with claims for judicial review and declaratory relief. A court has power to award damages to the applicant with certain provisos.

The provisos to a claim for an award of damages in the UK legislation are two fold, namely:-

1. That the claimant has included a damages claim in the application for leave.

2. The court is satisfied that had the claimant included a claim for damages in an action, he could have been awarded damages.

Importantly, the claim for damages is not by virtue of a new substantive right but must be one which could have been made in an action commenced by writ. (See also REES AND OTHERS v CRANE [1994] ALL ER 833 per Lord Slynn at 850f.).

Under the Tongan Legislative scheme for judicial review, it must be said at once, that there is no similarity of drafting or of composition between it and the UK legislation. However there exists on a comparative basis, extensive common features.

It is in my opinion, natural and sensible to construe the O.27 provisions to allow of a claim for damages in the same proceedings as judicial review thereby enabling the court, should it decide to award a claimant declaratory relief, to proceed to hear and assess the damages claim, instead of a claimant having to prosecute a damages claim in another jurisdiction of the same court.

I conclude that this court has jurisdiction to hear claims for damages, should the claims for declaratory relief succeed.

THE EVIDENCE

There are some 27 affidavits which have been filed and delivered on both sides and 26 of which are relevant to findings at trial. Only some of the deponents have been called to either supplement the evidence in their affidavits or be cross-examined. Their names are underlined in the table below (pages 20 & 21).

Counsel have agreed that in the absence of any objection taken, the affidavit evidence adduced on either side, would be available for use in the determination of a matters of fact by the court in conjunction with the oral evidence of the witnesses called for viva voce examination.

The admissibility of the affidavit evidence in this application was considered at a chambers hearing at the commencement of trial. Where agreements could not be arrived by the parties, rulings were made. The following represents the state of agreements and rulings at the close of evidence in relation to the evidence of the witnesses Dr. Sevele and Hon. Fakafanua.

Affidavit of Feleti Sevele dated 30th May 1994

Paragraphs 47 - 60 (inclusive)
Admitted not as to the truth of assertions made by the deponent, but as to the existence of factors affecting beliefs held by him and actions done by him

Paragraph 62
Inadmissible Paragraph

70 - 71 Inadmissible - see ruling on admissibility of Parliamentary
Debates (infra p.22)

Paragraphs 100 - 104 (INC.)
Admitted as contradicting evidence of the first defendant.
Admitted from "this successful..." down to".....unheard of".

Paragraph 113
Admitted against objection.

Paragraph 124
Inadmissible as being hearsay.

Paragraph 138 and 139
Inadmissible as being submissions not evidence.

Paragraph 170
Inadmissible as being hearsay.

Paragraphs 197 - 205 (INCLUSIVE)
Inadmissible as being hearsay

Paragraph 231
Admitted.

Paragraph 232 - 235 (INCLUSIVE)
Inadmissible by agreement.

Paragraph 236 (k) to (m) (INCLUSIVE)
Inadmissible. See ruling on the admissibility of Parliamentary proceedings (page 22 infra)

Paragraph 237
Inadmissible. See ruling (p.22 infra.)

Affidavit of Hon. Fakafanua dated 11.10.94 and 11.11.94

Paragraph 31(a)
Inadmissible as being hearsay. Annexure D13 admissible.

Paragraph 46
Admitted but not as to the truth of the assertions.

In concluding a fact to have been proved all sworn evidence has been weighed into the determination. Some evidence has been the subject of clear objection during the taking of oral evidence. Some has not. Hearsay evidence has been eliminated where it has appeared in affidavits and during oral evidence.

Where findings are made they may be taken to have been made on the basis of admissible evidence being proved to the satisfaction of the court on the balance of probability except in those cases where the judgment makes it plain that a different burden and or quantum of proof has been applied in arriving at the finding. The affidavits to which reference has been made in the determination of fact in these proceedings are as follow:-

	List of Affidavits filed	Date Filed	Filed by	
1.	GRAHAM JOSEPH WECK	6/5/94	Plaintiffs	
2.	BERNARD SNALAM	7/5/94*		
3.	JAMES HAIG (Not referred to)	12/5/94		
4	AKAPEI TUPOU	23/5/94		
5.	HEAMASI KOLOA	24/5194		
6.	MOTAU TUPOU	25/5/94		
7.	TEVITA LUPEITU'U	25/5/94		
8.	TEVITA LEGER	27/5/94		
9.	SOLOMONE 'ALIPATE	27/5/94		
10.	KALAFI MOALA	27/5/94		
11.	JOE TU'ILATAI MATAELE	27/5/94		
12.	MIKIO FILIKITONGA	28/5/94		
13.	SIAOSI PULOKA	28/5/95		
14.	KESOMI SIALE	28/5/94*		
15.	MANA LATU	28/5/94*		
16.	MINORU NISHI	28/5/94		
17.	R F CAMERON	30/5/94		
18.	FELETI SEVELE	30/5/94*		
19.	PAULA TAUFA	17/6/94	First Defendant	
20.	SIOELI MATOTO	3/11/94*	"	
21.	HRH MAILEFIHI TUKU'AHO	9/11/94	"	
22.	HON. FAKAFANUA	11/10/94*	"	
23.	WILLIAM JAMES HARRIS	Undated	"	
24.	TANIELA TUFUI	7/11/94	Second Defendant	
25.	PAULA TAUFA (Supp. Aff.)	7/11/94	First Defendant	
26.	'AISAKE TU'IONO	7/11/94*	"	
27.	HON. FAKAFANUA (Supp. Aff.)	11/11/94*	"	
(__	* Denotes - gave oral evidence)		"	

The facts as they are found to have occurred, are represented in the narrative. The plaintiffs argued that the contents of the reports which involve the opinion of expert witnesses ought either be disregarded or accorded little weight where the authors were not called or presented for cross examination.

It must be said that Mr. Harrison of counsel complained that the defendants relied upon untested expert evidence during his address in reply submitting that the first defendant in seeking to justify the challenged provisions and the 1993 amendment, by quoting Government and Tonga Development Bank reports made no attempt to meet the "ends and means" analysis advanced by the plaintiffs as being essential considerations in matters such as the present.

Later in this judgment I will consider the "ends and means" technique of analysis referred to, but for the moment I will consider the evidentiary sources of which complaint is made by the plaintiffs' counsel.

The plaintiffs have been content to adduce evidence by way of annexures to the affidavit of Dr. Sevele. Presumably the plaintiffs seek to have the court act upon that evidence. The onus of proof is carried by the plaintiffs in this application. I am not prepared to accept that the defendants, in an application such as the present, carry any onus, evidentiary or otherwise for any purpose.

During the hearing there appeared to be some friction between counsel concerning the admissibility of at least the documentary evidence. It is a pity. It was well within the province of counsel to have assisted the court by not taking such points so late in the day, (the beginning of addresses). Since it is left to me to settle, I make it clear that I have resorted to the documentary evidence whenever necessary, not necessarily as to the truth or merit of the content of the document, but simply to measure the extent to which the defendants went in drafting the legislation. In the case of the first defendant to ascertain his state of mind when adopting the methodology which the plaintiffs impugn.

Although I am satisfied that the Ministry of Labour Commerce and Industries under the direction of the first defendant set about the task of restructuring and establishing order in the squash industry in order to improve it, the propriety of the Ministerial method remains a question for determination.

The reality is that all parties to a greater or lesser extent have been content to rely upon annexed reports tendered with affidavits when it suited their case.

I will use the documentary annexures to find primary facts at least. For example, I have used the TDB report in that way. Both the plaintiffs and the defendants rely upon it. Dr. Sevele expresses his own expert opinion on it, (Sevele affidavit 23 and FV S/07).

The first defendant refers to it as being a factor affecting his judgment about material matters. In my view, no more needs be said.

REFERENCE BY THE COURT TO PARLIAMENTARY DEBATES

Immediately prior to trial I ruled that certain material sought to be introduced by the plaintiffs would not be received. I intimated that reasons would be given in the judgment. I now give them.

The plaintiffs have claimed in the statement of claim that (para 25.2) the first defendant was motivated by personal hostility, ill-will and malice towards the first and second plaintiffs, and/or their principals, especially Dr. F. Sevele.

Among the particulars recited in para. 25.3, the following particulars appear:-

"25.3.9 Speaking in Parliament in November 1993, the first defendant falsely accused the first and second plaintiffs of paying growers for baby squash 50 - 100% less than what they should be getting and further misrepresented that all participants in the industry had agreed to the 1993 pumpkin squash quota limitations, and that all seven exporters involved in the industry in 1993 had broken such agreement."

In his affidavit of 30th May 1993, the witness Dr. Sevele, at paragraphs 236(k) and 237, deposes to speeches made by the first defendant to the Legislative Assembly which the plaintiffs claim demonstrate that the first defendant exercised his discretion with malice and bad faith against the plaintiffs and Dr. Sevele which resulted in a decision not to allow them a quota to which they would have been entitled, because the first defendant "had it in for them" (sic).

Paragraphs 236(k), (l) & (o) and 237 and annexure FVS 43 of the Sevele affidavit set out the material impugned by the defendants.

The annexures purport to be a record of what was said inter alia by the first defendant on 1st and 2nd November 1993 in the Legislative Assembly during debates on the proposed amendments to the Licences Act. The proper use of these documents is the subject of the objections of the defendants.

The plaintiffs submit that the purposes for which the admission of the Legislative Assembly record is sought are:-

To support the allegations made by the plaintiff companies that the first defendant was motivated by personal hostility, ill-will and malice, (the plaintiffs plead as much in para 25.2 of the statement of claim) and, to refer to the debates in submissions without challenging them. This use is a secondary or "fall-back" use according to counsel for the plaintiffs.

Mr Harrison in his submission, draws distinctions concerning the purposes for which the material may be used. First, concerning the validity of legislation in constitutional challenges, as it may be contrasted with litigation which is not in the nature of a constitutional challenge. Second, the distinction between the use to be made where the record may be used as a matter of historical record to identify the intention of Parliament, as compared with a use sought to be made of the record so as to call into question what has been said or done in the house.

The plaintiffs, I am assured by Mr. Harrison, would, for one important reason seek to use the record, (the Parliamentary debates,) and that important reason is, to use the debates as an aid to ascertain parliamentary purpose, to determine what the mischief was at which the 1993 amendment to the Licences Act was aimed at remedying. Later, Mr. Harrison added,

"I wish to refer solely to the first defendant in the Legislative Assembly where he announced, (and he was the only member to announce,) what the amendment was intended to achieve. I want to refer to it as to purpose which doesn't emerge clearly from the wording of the statute."

Judicial notice must be taken of the proceedings of the Legislature and when they are received they need not be proved - Ss. 35 and 36(b) Evidence Act. The permissible modes of proof are provided for in s. 94(b).

The material which comprises annexure FVS 43, to the affidavit of Dr. Sevele is material of which the court must take judicial notice and is material which needs not be proved as evidence but which is simply available for use should the court determine that it is legitimate to do so. At trial I made a brief ex tempore ruling, holding that recourse may not be had by the court to the proceedings of the Legislature contained in FVS 43 as they were the subject of parliamentary privilege. I read and considered the contents of FVS 43 for the purpose of making the ruling.

Lamentably, questions concerning the meaning and extent of the ruling arose later at the close of the cases of the two defendants. Counsel for the plaintiffs assured the court that he was uncertain as to the extent of the ruling since full reasons had not been published. Mr. Harrison then sought to use material from annexure FVS 43, the parliamentary debates, in order to identify the Legislative purpose of the 1993 amendment to the Licences Act. Mr. Harrison stressed that the use to which he wished to put the debates did not involve calling the statements into question or challenging them.

After further argument I ruled that the renewed application fell within the ambit of the earlier ruling which excluded use of the material in FVS 43 for many purpose at all. I now give reasons.

By virtue of the provisions of the Constitution, Tongan Law must be applied in determining the use to which the material contained in FVS 43 may be put. In KALANIUVALU FOTOFILI v IPENI SIALE (Privy Council Appeals 1 & 2 of 1987) the Privy Council observed that:-

"A Court in Tonga faced with a plea that it should inquire into the internal proceedings of the Assembly will obtain no help from any Act or Ordinance in force in Tonga in determining its jurisdiction to do so. In such a delicate constitutional situation the court would look for a clear mandate to proceed. We are of the firm opinion that in that situation the Civil Law Act (Cap 14) must be called in aid.... (the court) must apply the English Common Law regarding the privileges of Parliament to determine the regularity of its own proceedings, provided of course the Assembly has not acted contrary to the provisions of the Constitution in the course of those proceedings, for in such a case the court is given jurisdiction by article 90 of the Constitution, which reads, so far as is relevant:-

"The Supreme Court shall have jurisdiction in all cases in Law and Equity arising under the Constitution and the Laws of the Kingdom."

Mr. Harrison contends that the ratio of SIALE is at page 8 of the report:-

"We conclude then that there is no jurisdiction in the court to inquire into the validity of the Assembly's internal proceedings where there has been no breach of the Constitution."

I respectfully agree and acknowledge that the decision binds this court.

In light of the decision in SIALE it is necessary to consider whether a breach and if so what breach of the Constitution has occurred. If the answer to that question is that no breach has occurred, then there is no jurisdiction in the court to inquire into the validity of the Assembly's internal proceedings.

The constitutional breach is at present an allegation only. It is the first claim of the plaintiffs. The plaintiffs claim in their statement of claim paragraphs 17,18,18A, and 19, that the Order-in-Council and the 1994 quota allocation are unlawful and invalid by reason of the fact that the Licences Act 1993 purports unlawfully and/or unjustifiably to remove or alternatively to restrict the constitutional freedom of the first and second plaintiffs and others pursuant to clause 1 and/or clause 4 and/or clause 14 and/or clause 17 of the Constitution of Tonga to trade and in particular to dispose of their labour, the produce of their labour and their property, with the benefit of equal protection of the Law of Tonga and/or without discrimination and without partiality, in all or any of certain respects which are then particularised as sub paragraphs of paragraph 17.

A circular argument arises from the plaintiffs' claim that they should be permitted to be able to resort to the internal proceedings of the Legislative Assembly for the purpose of demonstrating a breach of the Constitution. That is, there is no breach of the Constitution until the breach can be proved. Until a breach has been proved, no inquiry may be embarked upon by the court into the validity of the Assembly's internal proceedings and until such an inquiry has been instigated and concluded there can be no finding of a breach of the Constitution.

There are of course circumstances in which, without any recourse to the internal proceedings of the Assembly, whereby merely looking at the legislation which emanates from the Assembly, a breach of the Constitution is easily ascertained.

For example, were the Legislative Assembly to enact a Law giving, for example, 100 hectares of land to every sixteen year old Tongan male member of a particular religious order in Tonga, such legislation would prima facie be in breach of clause 4 of the Constitution and an internal investigation of the proceedings of the Assembly would be permitted (but unnecessary). However present circumstances do not give rise to such an obvious example.

I conclude that this court, given the ratio in SIALE, simply does not possess and will continue not to possess jurisdiction to inquire into the internal proceedings of the Assembly until such time that a breach of the Constitution can be shown and that is of course the issue posed by the plaintiffs' first claim.

The Law to be applied is the Law of Tonga when determining the jurisdiction of the court. However, the persuasive English authority on the supremacy question and the privileges of Parliament, sets out some fairly rigid guidelines for courts embarking on a determination of such a question as the present one.

In England, the House of Lords has recently held that the rule prohibiting courts from referring to parliamentary material as an aid to statutory construction subject to any question of parliamentary privilege, be relaxed so as to permit reference to parliamentary materials where (a) the legislation was ambiguous or obscure or the literal meaning led to an absurdity, (b) the material relied on or consisted of statements by a Minister or other promoter of the bill which led to the enactment of the legislation together if necessary with such other parliamentary materials as was necessary to understand such statements and their effect and (c) the statements relied on were clear. PEPPER (INSPECTOR OF TAXES) v HART AND RELATED APPEALS [1993] 1 ALL ER 42.

Lord Browne - Wilkinson at 64 reviewed the Law and said: -

"Statute Law consists of the words that Parliament has enacted. It is for the courts to construe those words and it is the court's duty in doing so to give effect to the intention of Parliament in using those words."

His Lordship referred to and approved a judgment of the divisional court at 68f, CHURCH OF SCIENTOLOGY OF CALIFORNIA v JOHNSON-SMITH [1972] 1 ALL ER 378 - a judgment of Browne J. in that case, relevant to the present one. The plaintiffs brought an action for libel against the defendant a member of Parliament, for defamatory remarks made by the defendant during a television interview. The defendant pleaded fair comment and privilege.

In order to defeat those pleas, the plaintiffs by their reply alleged malice and in order to establish that the defendant had acted with malice, they sought to adduce evidence, including extracts from Hansard, of what the defendant had done and said in Parliament. Browne J. held that what is said or done in the House in the course of proceedings cannot be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arises from something done outside the House.

Lord Browne - Wilkinson, in PEPPER observed (68 f et seq.):-

"Browne J. held, rightly in my view, that such a use would breach article 9 (of the Bill of Rights) as questioning the intentions and motives of a member of the House .... (to suggest that) the defendant acted improperly in Parliament in saying what he did in Parliament ..... plainly would amount to questioning a member's behaviour in Parliament and infringe art 9."

In the Privy Council (UK) in the decision in PREBBLE v TELEVISION NZ LTD [1994] 3 ALL ER, 407 Lord Browne - Wilkinson said at 417 j:-

"Their Lordships are of the view that parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading. Such matters lie entirely within the jurisdiction of the House, subject to any statutory exception ..."

In BRITISH RAILWAYS BOARD AND ANOR v PICKIN HL [1974] 1 ALL ER 609, the House of Lords decided that the courts have no power to examine the proceedings in Parliament in order to determine whether the passing of an Act had been obtained by means of any irregularity or fraud.

In his judgment, Lord Morris said:-

"It would be impracticable and undesirable for the High Court of Justice to embark on an inquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an inquiry whether in any particular case those procedures were effectively followed."

Recognising at once that the decision in PEPPER and later in PREBBLE have led to the rule prohibiting courts from referring to parliamentary material being relaxed in certain circumstances, it is clear that the authorities all issue the admonition that the circumstances in which courts may refer to proceedings only arise rarely and then the reference must coincide with the quite strict guidelines laid out, inter alia, in PEPPER.

In the present case the court was asked to make the findings sought in paragraph 25 of the statement of claim and in order to do so to use the speeches of the first defendant in the Legislative Assembly as set out in annexure FVS 43 to the Sevele affidavit. It is just such a use that the English authorities proscribe as recently as PREBBLE.

The present case is not one in which a breach of the Constitution has been shown so as to enable an inquiry into the Assembly's internal proceedings. The proceedings referred to in annexure FVS 43 ought not be used as a means of establishing what the 1993 amendment to the Licences Act was designed to achieve for the reasons I have given.

THE FIRST CLAIM OF THE PLAINTIFFS

The relevant part of the statement of claim is now set out together with the responses of the first and second defendants:-

"THE CONSTITUTIONAL INVALIDITY OF THE LICENCES ACT, THE LICENCES AMENDMENT ACT 1993, THE ORDER IN COUNCIL AND THE 1994 QUOTA ALLOCATION.

15. Clause 1 of the Constitution of Tonga states:

"Since it appears to be the will of God that man should be free as he has made all men of one blood therefore shall the people of Tonga and all who sojourn or may sojourn in this Kingdom be free forever. And all men may use their lives and persons and time to acquire and possess property and to dispose of their labour and the fruit of their hands and to use their own property as they will."

15A. Clause 4 of the Constitution of Tonga states:

There shall be but one Law in Tonga for chiefs and commoners, for non-Tongans and Tongans. No Law shall be enacted for one class but the Law shall be the same for all people of this land.

16. Clause 14 of the Constitution of Tonga states:

No one shall be intimidated into giving evidence against himself nor shall the life or property or liberty of anyone be taken away except according to Law.

16A. Clause 17 of the Constitution of Tonga states:

The King shall govern on behalf of all his people and not so as to enrich or benefit any one man or any one family or any one class but without partiality for the good of all the people of his Kingdom."

The form and content of paragraphs 15, 15A, 16 and 16A are admitted by defendants.

"17. The Licences Act purports unlawfully and/or unjustifiably to remove or alternatively to restrict the constitutional freedom of the first and second plaintiffs and others pursuant to clause one and/or clause 17 of the Constitution of Tonga to trade and in particular to dispose of their labour and their property, with the benefit of equal protection of the Law of Tonga and/or without discrimination and without partiality, in all or any of the following respects;

17.1 Sections 4 and 9 combined effectively prohibit the carrying on without a licence of all or any of the businesses or callings specified in Schedule "A" of the Act - such prohibition being constitutionally prohibited;

17.2 Section 5(2)authorises the Privy Council by Order-in-Council from time to time to authorise any officer empowered under the Act to issue licences, to exercise absolute discretion in the issue thereof, and the Privy Council by Order in Council of the 16th April 1942 known as the Licences (discretionary powers) Order has purported so to authorise all officers empowered under the Licences Act to issue licences - the conferment and exercise of such absolute discretion being constitutionally prohibited;

17.3 Section 5(3) purports to empower the Privy Council by Order in Council from time to time to fix the maximum number of licences to be issued under this Act in respect of any district or districts or for any particular class or classes of licence for such period as the Council shall deem it fit - the conferment and exercise of such powers being constitutionally prohibited;

17.4 Section 5(4) (as enacted by the Licences (amendment) Act 1993) empowers the Privy Council by Order-in-Council from time to time to fix the maximum quantity of any produce or commodity that may be exported as the Council shall deem fit, and in that event empowers the Minister of Labour, Commerce and Industries to exercise discretion in allotting such quantity to licensees the conferment and exercise of such powers being constitutionally prohibited. In particular by reason of;

17.4.1 The said section 5(4) having been enacted into Law for the express purpose of restricting and regulating only (and accordingly discriminating against) the industry;

17.4.2 The said section 5(4) having been in practice utilised by the first and second defendants for the express purpose of restricting and regulating only (and accordingly discriminating against) the industry."

The assertions of law and fact in paragraph 17 are denied by both defendants.

18. Accordingly, the Licences Act or in the alternative all or any of the foregoing provisions thereof constitute an interference or alternatively an unjustifiable interference with the constitutional rights of the first and second plaintiffs, of growers of pumpkin squash, and of participants in the industry and are unconstitutional, unlawful and invalid.

18A. Further or alternatively, Privy Council, in acting as alleged in paragraph 12 hereof, discriminated against the industry by purporting to restrict and regulate its export output (or alternatively, unjustifiably to restrict and regulate its export output), when no other Tongan export industries have been or are being so restricted and regulated, THEREBY (sic) depriving participants in the industry and in particular the first and second plaintiffs of the equal protection of the Law of Tonga and/or discriminating or alternatively demonstrating partiality against them.

19. As a consequence of the matters alleged in the two immediately preceding paragraphs, the Order-in-Council and the 1994 quota allocation are accordingly unlawful and invalid."

The assertions of law and fact made in paragraph 19 are denied by the first and second defendants.

The prayer for relief in the Statement of Claim recites:-

"Wherefore the first and second plaintiffs claim:

(a) A declaration that all or any of the statutory provisions referred in paragraph 17 hereof are unconstitutional, invalid and of no effect;

(b) A declaration that the Order in Council dated 8 April 1994 known as the Licences (Squash Export) Order 1994 is as a consequence unlawful and invalid;

(c) A declaration that the 1994 quota allocation referred to in paragraph 14 hereof is as a consequence unlawful and invalid;

(d) An order in the nature of certiorari quashing the Order in Council dated 8 April 1994 known as the Licences (Squash Export) Order 1994;

(e) An order of or in the nature of certiorari quashing the 1994 quota allocation referred to in paragraph 14 hereof;

(f) The costs of and incidental to this proceeding;

(g) Such further relief as may appear to be just..."

THE LEGISLATION UNDER CHALLENGE

* The Licences Act Ss 4, 5(2), 5(3), 5(4) As being unconstitutional therefore invalid.

* The Order-in-Council dated 8 April 1994 known as the Licences (Squash Export) Order 1994.

The Licences Act Cap. 47 provides in its material parts, as follows:-

"1. This Act may be cited as the Licences Act.

2. All moneys to be received under this Act whether in respect of the issue of Licences or the payment of penalties shall be paid into the Treasury for the benefit of the General Revenue of the Kingdom.

3. For the purposes of this Act the following shall be deemed to be towns:-

Nuku'alofa (including Kolomotu'a, Kolofo'ou and Ma'ofanga), Pangai (including Hihifo) in H'a'apai, and Neiafu (including Neiafutahi, Falehau and Fungamisi) in Vava'u.

4. Every person who carries or exercises any business or calling specified in Schedule A whether jointly with any business or calling or otherwise shall take out a Licence to do so and shall pay therefore the licence fee at the annual rate set forth in such schedule.

5. (1) (Not set out but considered).

5. (2) The Privy Council may be Order-in-Council from time to time authorise any officer empowered under this Act to issue licences to exercise absolute discretion in the issue of any licences save that any person who feels aggrieved of a decision of any such officer in the exercise of his discretion aforesaid may apply in writing to the Privy Council and the Council may confirm, modify or revoke any such decision.

"5.(3) The Privy Council may by Order-in-Council from time to time fix the maximum number of licences to be issued under this Act in respect of any district or districts or for any particular class or classes of licences for such period as the Council shall deem fit.

(4)	(a) The Privy Council may by Order-in-Council from time to time fix the maximum quantity of any produce or commodity that may be exported in such period as the Council shall deem fit.

(b) If a maximum quantity is fixed under paragraph (a) of this subsection the Minister of Labour Commerce and Industries shall exercise discretion in allotting such quantity to licensees.

9.(1) Any person carrying on or exercising any business or calling specified in Schedule A without a licence shall be guilty of an offence against this Act:......."

(After which there appears a proviso and penalty section which is not immediately material to the issues under consideration.)

The Order-in-Council published in the Tonga Government Gazette of 12th May 1994 recites as follows:-

"ORDER-IN-COUNCIL
LICENCES ACT
(SECTION 5)

In exercise of the powers conferred by section 5 of the Licences Act (Cap 47) as amended, the Privy Council makes the following order:

(1) This order may be cited as the Licences (Squash Export) Order.

(2) The maximum quantity of squash to be exported to Japan under the Licences Act for the last quarter (October - December) in 1994 shall be 17,000 metric tonnes.

Made at Nuku'alofa this 8th day of April, 1994."

The Order-in-Council and the quota allocation are alleged to be unlawful and invalid in the submission of the plaintiffs who allege in broad terms that the Constitution of Tonga may invalidate legislation and delegated legislation which is contrary to its provisions.

The Constitution of Tonga contains no provision which is expressly enabling of any court to invalidate legislation (or subordinate legislation) which is in conflict with the Constitution, but it has been drafted in such a way that it can be seen from a number of its provisions, that it will invalidate any statutes inconsistent with it. Clauses 79, 82 and clause 90 are examples of such provisions. They provide:-

Clause 79.

"'It shall be lawful for the Legislative Assembly to discuss amendments to the Constitution provided that such amendments shall not affect the Law of liberty the succession to the throne and the titles and hereditary estates of the nobles. And if the Legislative Assembly wish to amend any clause of the Constitution such amendment shall after it has passed the Legislative Assembly three times shall be submitted to the King and if the Privy Council and the Cabinet are unanimously in favour of the amendment it shall be lawful for the King to assent and when signed by the King it shall become Law."

Clause 82.

"The Supreme Court shall have jurisdiction in all cases in Law and equity arising under the Constitution and Laws of the Kingdom (except indictable offences where the accused elected to be tried by jury and except also cases concerning titles to land which shall be determined by a Land Court subject to an appeal to the Privy Council) and in all matters concerning treaties with foreign states and Ministers and consuls and in all cases affecting public Ministers and consuls and all maritime cases."

The Interpretation Act (Cap 1) Section 34 also sheds light on whether the Supreme Court has jurisdiction to declare legislation invalid. It provides:-

"34. Every Act shall be read and construed subject to the Constitution and so as not to exceed the Legislative power of the Kingdom to the intention that where an Act would, but for this section, have been construed as being in excess of that power, that Act shall nevertheless be valid to the extent to which that Act is not in excess of that power."

In MAFILE'O v PORTER AND THE GOVERNMENT OF AUSTRALIA (Supreme Court of Tonga) No. 24/89, Webster J. said at page 9:-

"It is a serious matter for a court to declare that any Act passed by Parliament is unconstitutional and so invalid, and it is therefore not a step which a court should take hastily or lightly".

I respectfully share the concern of the learned judge. However on the preliminary point of jurisdiction, I accept the submission of the plaintiffs that the decision ought to be treated as persuasive authority that this court has jurisdiction to declare the invalidity of Laws where the need arises. In my opinion this court possesses the requisite jurisdiction to make declarations of invalidity.

The lack of constitutionality of the legislation under attack in the present case, is said to have two bases:-

- The Licences Act constitutes an interference or alternatively an unjustifiable interference with the constitutional rights of the plaintiffs, growers of squash and other participants in the industry.

- In enacting the Order-in-Council the Privy Council discriminated against the squash industry as particularised in the statement of claim paragraph 18A.

The defendants and each of then submit that the provisions the Licences Act are not repugnant to clauses 1, 4, 14 or 17 of the Constitution or at all.

In 1875 when the Act of Constitution of Tonga was first enacted, there was no companies legislation in Tonga. In England the Companies Acts had only been in existence since 1844. The historical context of the Act of Constitution of Tonga was considered by Dr. S. Latukefu, in his work "The Tongan Constitution" (1975) which I have read and considered at the invitation of counsel together with the judgment of Skeen CJ in an application under clause 85 of the Constitution, ex parte President and Trustees of 'Tonga Ma'a Tonga (1911) 1 Tongan Law Reports 9, commenting on the Act of Constitution of Tonga and the nature of the document.

At page 13 of the 'Tonga Ma'a Tonga judgment Skeen CJ observed:-

"The language of the Constitution is precise and clear and expresses without ambiguity the terms upon which King George the First granted such. First he conquered Tonga and brought Tonga for the first time under one head and control thus giving his people peace. Next he lifted from them the curse of slavery, and later on as the crowning Act of his reign he voluntarily gave his people a constitutional government and a written Constitution. It was no hasty and ill-advised action, he looked upon Tonga united, free and peaceful; he saw the work of his hand and brain was good and he desired it to remain strong and stable. Hence the Constitution under which provision is made for amending the Constitution as necessity may demand....it is not for the Chief Justice to say that a Law passed at variance with the Constitution is beneficial or otherwise. He can only deal with the Constitution as it is, not as it might have been."

The Tonga Ma'a Tonga case is distinguishable, goes too far and must be viewed in an historical context only. The essential distinction between the ordinances under attack in Tonga Ma'aTonga and the provisions of the Licences Act in this review is the difference between prohibition and regulation. Tonga Ma'a Tonga concerned prohibition. This case is concern with the relation of trade among other purposes.

I am not prepared to find that Tonga Ma'a Tonga constrains this Court in the context of this challenge or at all.

STANDING OF THE PLAINTIFF COMPANIES

It is appropriate before examining the submissions of the parties generally, to consider the submission of the first and second defendants that none of the clauses of the Constitution extend to or include companies registered under the Companies Act 1912.

The submissions of the defendants are ultimately directed at having the court find that the corporate plaintiffs have no standing in constitutional challenges. It is submitted that they are not and cannot be contemplated as beneficiaries of the constitutional guarantees since they are companies, not "natural persons".

The law has always tended to accord corporations with certain characteristics of natural persons. Denning LJ, together with Hodson and Morris LJJ had to consider whether a. company could formulate an intention to take some corporate step in H.L. BOLTON ENGINEERING CO. LIMITED v T.J. GRAHAM AND SONS LIMITED C.A. [1957] 1 QB 159 at 172. He said:-

"Some ... in the company .... are mere servants and agents .... others are Directors and Managers who represent the directing minds and will of the company and control state of mind of the company, and is treated by the Law as such."

The Criminal Law of England has for a long time recognised the capacity of a corporation to formulate criminal intent - REX v I.C.R. HAULAGE LTD [1944] K.B. 551 at 559. For the Law to do otherwise would enable those of the mind and will to commit a crime to incorporate and escape the consequences of their unlawful actions.

The corollary is that an innocent corporation charged with serious fraud for example, would, on the strength of the defendant's argument, be denied the constitutional guarantees (fair trial etc.) under clauses 10, 11, 12, & 13 of the Constitution.

The technique of incorporation is and has been for many years a device used by men and women of Tonga (and some not of Tonga), precisely in the exercise of freedoms guaranteed them in clause one of the Constitution. The argument, in my respectful opinion cannot hold.

Accordingly I find that for present purposes, the corporate plaintiffs in this application have standing, as do natural persons.

In so concluding, I have use the broad and purposive construction of the Constitution referred to by the House of Lords in ATTORNEY GENERAL OF TRINIDAD AND TOBAGO v WHITEMAN [1991] 12 AC 240 at 247 and I have considered the line of authorities referred to by Webster J. in FINAU v ALAFOKI AND THE MINISTER OF LANDS (Tonga Land Court 10/89), including HENRY v THE ATTORNEY-GENERAL Court of Appeal Cook Islands No. 1/83. ATTORNEY-GENERAL v OLOMALU Court of Appeal Western Samoa 5895/81 and MINISTER OF HOME AFFAIRS v FISHER [1979] 3 ALL ER 21:

"A Constitution cannot be interpreted in vacuo ... and its interpretation can be affected by the conditions, but the prime matter is the words used by the framers ... this involves we think, still giving primary attention to the words used, but being on guard against any tendency to interpret them in a mechanical or pedantic way."

In HINDS v THE QUEEN [1976] 1 ALL ER 353 Lord Diplock said at page 359:-

"(Constitutions must be considered) not in isolation: Their colour and their content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use "context" in its widest sense ... as including not only enacting provisions of the same statute, but its preamble, the existing state of the Law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy."

I acknowledge the force of the submission by Mr. Harrison, that the Constitution must be generously interpreted as a "living document". If the courts are to construe Constitutions broadly and purposively to give effect to the spirit of the document under consideration; if the courts are to render proper acknowledgment to the dictum of Viscount Simon in ATTORNEY-GENERAL v PRINCE ERNEST AUGUSTUS OF HANOVER, if the courts are to construe the document in the light of its subject matter and the surrounding circumstances in which it was made (Hinds supra), there is a need to take into consideration the changing circumstances and conditions which have been brought to bear on the document in twentieth century Tonga.

There is a need to interpret it so as to accommodate the needs of the men and women of Tonga who would use the technique of incorporation legitimately to exercise their constitutional rights.

One could repeat the many examples of what Mr. Harrison referred to as "surprising results" which could and would ensue if corporations did not possess the benefit of the constitutional guarantees, e.g. if the Criminal procedural guarantees contained in clauses 10, 11, 12 and 13 were limited to natural people and companies were excluded (REX v I.C.R. HAULAGE, infra).

The submission of the plaintiffs is that the language used by the draftsman of the Constitution is haphazard and being haphazard a court interpreting the constitutional guarantees in a modern context ought not attribute too much weight to the choice of one identifier against another. I agree.

There are in my opinion, compelling reasons for holding that companies in Tonga, are in general, entitled to the benefit of constitutional guarantees under the Law of Tonga and in particular the guarantees contained in clauses 1, 4, 14 and 17. I conclude therefore that the plaintiffs have standing for present purposes of the constitutional challenge.

THE ALLEGATION OF INVALIDITY BY VIRTUE OF INFRINGEMENT OF CLAUSE 1 OF THE CONSTITUTION

The plaintiff corporations claim that under clause 1 of the Constitution the subjects of labour and trade are the subjects of a twofold guarantee. As the product of labour they are the subject of an explicit and unfettered guarantee of first disposal (here, sale).

As property once produced they are the subject of the further guarantee of use, at the will of the owner. Labour ought not be limited to personal or manual labour. Rights to freedom of labour and trade are the antithesis in economic terms of what the Constitution set out to abolish namely the slavery status which was concurrently abolished by the combined effect of clauses 1 & 2.

It propounded by Dr. Harrison that the sale of property is no more than the putting of property to a "use" - RE AN APPLICATION per SKEEN CJ.

"In the existing state of the Constitution this right ... "use" .... cannot be controlled by legislation." ie absolute guarantees, but the plaintiffs are content with the lesser appellation of "paramount" but not necessarily "absolute".

The Constitution of Tonga is unlike the Australian and U.S. Constitutions in that it does not empower the Government to legislate in contravention of specified constitutional guarantees. Therefore, (so runs the argument for the plaintiffs,) the Part 1 constitutional guarantees constitute a prohibition, (an explicit limitation on the Legislative Assembly,) rendering ultra vires any legislation which infringes it.

The first defendant argues that the decision in Tonga Ma'a Tonga must be seen as a product of its era, one when there were no Laws controlling companies. I have already expressed the opinion Tonga Ma'a Tonga is distinguishable. A decision which goes too far. It represents an example of the result of narrow and literal interpretation against which the courts have set their faces according to the modern authorities cited (supra).

Where such an interpretive approach is applied (TU'ITA VAKE v PORTER &THE COMMONWEALTH OF AUSTRALIA, [1989] Tonga LR 14, FINAU v ALAFOKI & MINISTER OF LANDS, [1989] Tonga LR 66 KINGDOM OF TONGA v POHIVA, [1993] Tonga LR 25 the learned Solicitor-General submits, no absolute freedoms can arise. In my opinion, such an interpretation of the Constitution is applicable.

On a broad interpretation of the Act of Constitution of Tonga the right to acquire and possess property and to dispose of ...... labour and the fruit of ...... hands and to use ...... property as they will, are rights which in my opinion, exist "except according to Law", i.e. they are rights brought into existence by clause 14 of the Constitution.

On any interpretation of the Constitution, the Licences Act is enacted to regulate the activities of all Tongans indeed all people caught within the purview of the legislation by reason of their trade, calling or otherwise. It is not discriminatory of a class.

There is clearly a need from time to time to regulate, inter alia, trade. The second defendant submits that the amendment to the Licences Act adds no new principles to the Act. The submission has force. The amendment cannot in any sense be said to render other provisions unconstitutional, it demonstrates no partiality. The provisions from the plain meaning of the words of the Licences Act are designed to control trade in the most general and impartial way.

From a reading of the enacted provisions of the Licences Act, I am not persuaded that it is ultra wires the Constitution in any of the clauses 1, 4, 14 and 17 or at all, nor am I persuaded that in any way at all, interpretive or from any reading of the Order-in-Council, can it be said to be discriminatory of the squash industry. The Order-in-Council is part of the Law which has been enacted to control it.

The notion of "absolute freedom" and the constitutional guarantees was considered by the High Court of Australia in JAMES v THE COMMONWEALTH (1939) 62 CLR 339 @ 362 a decision concerning the provisions of s.92 of the Australian Constitution. Section 92 Australian Constitution makes direct reference to the phrase "absolute freedom" and in the judgment of the court absolute freedom did not mean absolute freedom but a qualified kind of absolute freedom. So it is here.

Counsel have referred to COLE v WHITFIELD (1987 - 1988)165 CLR 360 which it is submitted, by the learned Solicitor-General, concerns regulating and controlling of interstate traders in Australia in the same way as intrastate traders were being regulated and controlled.

In my opinion, clause 1 of the Constitution, while providing the explicit guarantees contended for by the plaintiffs and which, in certain cases will render some legislation which infringes its provisions invalid, in this case does not. I conclude that the Constitution must be read as a whole. It must be read in terms of social and economic needs. It must therefore be interpreted so as not to impede the economic management and development of Tonga.

Having considered the arguments advanced by counsel concerning the constitutional challenge, I conclude:-

- The Supreme Court of Tonga possess the implicit constitutional power to declare legislation which infringes the provisions of the Constitution unconstitutional and therefore invalid.

- Any issue of constitutional invalidity is within the jurisdiction of, and may be raised heard and determined by, this court by way of judicial review pursuant to R.S.C.O. 27.

- Constitutional guarantees established by clause 1 of the Constitution extend to corporations as well as natural persons.

- The appropriate interpretive approach in this constitutional challenge is the broad and purposive one discussed infra.

In considering the plaintiffs' arguments in support of the constitutional challenge, in arriving at conclusions in the substantive parts of the claims, I have given careful consideration to the extensive and complex legal and factual arguments advanced. That I make no reference to the arguments, may not be taken to mean that they have not been considered.

The plaintiffs in my judgment in these challenges, carry the persuasive onus of demonstrating the unlawfulness and invalidity of the impugned legislation, ASSOCIATED PROVINCIAL PICTURE HOUSES LIMITED v WEDNESBURY CORPORATION [1948] 1 KB 223 per Lord Greene M.R. at 229.

There has been a suggestion by the plaintiff (written submission 2.24) in a subsidiary argument, that even if clause 1 of the Constitution is found not to be absolute or to have paramountcy, and that economic regulation is permitted, the court has a duty to scrutinise carefully, in terms of means and ends employed by the Legislature, legislation which prima facie involves the invasion of a constitutional right.

The plaintiffs submit that the means of control adopted by the Legislature must be particularly related to the identifiable ends. Standards of rationality and proportionality and absence of discrimination must be satisfied, the onus being on the Crown to justify the prima facie invasion of a constitutional right if the principles in EQUAL OPPORTUNITIES COMMISSION v SECRETARY OF STATE FOR EMPLOYMENT [1994] 1 ALL ER 910 are followed.

There is in my opinion no rule of Law or statement of principle affecting these proceedings which would require the Minister or the Crown to shoulder the onus of justifying any prima facie invasion of a constitutional right derived from clause 1 of the Constitution or at all.

The so-called means and ends rationalisation contended for by the plaintiffs in this claim and referred to by Barton J. in JUMBUNNA COALMINE NL v VICTORIAN COALMINERS ASSOCIATION (1908) 6 CLR 309 at 345, important in the determination of Australian constitutional question, has no such role in Tonga. Whereas the Australian Constitution confers upon the Legislature power to legislate in contravention of specific constitutional guarantees, the Tongan Constitution does not. The decision of the House of Lords in the EOC case is not in my opinion authority for any proposition that there is a shifting persuasive onus in the Tongan context such as the present case, shifting that is to the defendants.

What may be said of the ends and means considerations is that they may be material in determining whether there has been an infringement of the clause 1 guarantees and if so what consequences may flow but no more than that. The proper approach in my view is to consider whether there has been an infringement of the Constitution by examining the provisions of the Constitution and the legislation under scrutiny to determine if it is legislation "according to Law".

The expression "according to Law" has become a matter of issue. The plaintiffs submit that in relying upon the expression "subject to and according to Law", the defendants are contending for clause 1 of the Constitution to be read as though the words "subject to and in accordance with the Law" were added by necessary implication to its provisions. That would mean, the plaintiffs say, any Law no matter how destructive of the freedoms in question may come into existence provided always that it was subject to and in accordance with the Law.

I am unable to accept that clause 1 should be so read. Moreover the plaintiffs contend that clause 14 is an explicit qualification of clause 1. In my opinion, the Constitution ought not to be read in such a way. The proviso phrase "except according to Law," simply means that state of affairs which will be determined from the circumstances and objectives of the legislation under scrutiny.

The Licences Act is said by the plaintiffs unlawfully and/or unjustifiably to restrict the plaintiffs' freedoms under the Constitution:-

- To trade

- To dispose of their labour

- To dispose of the produce of their labour

- To dispose of their property with the benefit of the equal protection of the Law of Tonga and/or without discrimination and

- Without partiality

In all or any of these respects:-

- Because sections 4 and 9 of the Licences Act combine to prohibit pursuit of business or calling which prohibition is constitutionally prohibited.

In my opinion, the provisions of the Constitution may not be read that way in the present circumstances. I am not prepared to accept that the plaintiffs' freedoms are restricted in any of the ways contended for. While freedoms are guaranteed by clause 1, what such freedoms comprehend are a matter of judicial interpretation: KINGDOM OF TONGA v POHIVA [1993] Tonga LR. The freedoms in the English Common Law are not absolute. So it is here.

The plaintiffs have attacked the provisions of the Licences Act as a whole and as to the effect of particular provisions, from the standpoint of infringement of the clause 1 guarantees, clauses 4, 14 and 17 either standing alone or in conjunction with clause 1, or in combination.

From the standpoint of overall purpose and effect, the Licences Act as amended is a combination of revenue gathering sections and regulatory provisions designed to protect the public and certain trades. The complaint of the plaintiffs is that the Act goes significantly further than the above objectives.

The complaints of the plaintiffs (in the context of Clause 1) are:-

- Sections 4 and 9 in combination prevent the carrying on of a business or calling in the absence of a licence. I cannot accept the contention. To accept the argument would be to accept for example that comparative legislation e.g. the licensing of drivers of motor vehicles would amount to a prohibition and therefore an infringement of the freedoms contained in that clause.

- The power of conferment of licences under sections 5(1) and (2) is a discretionary power and a fortiori the existence of the absolute discretion in s. 5(2) and the Licences (discretionary powers) Order of 1942 is repugnant for generality and inconsistent with the constitutional right. The plaintiffs rely upon the decisions in CHAPMAN v SUTTIE (1963) 110 CLR 321 and AUSTRALIAN CAPITAL TELEVISION v THE COMMONWEALTH (1992) 177 CLR 106 for those propositions. They are in my opinion, persuasive authority only when determining the issues in this case.

The provisions of section 5(3) in enabling of the Privy Council to fix the maximum number of licences to be issued is unfettered and moreover, the plaintiffs complain, lack criteria for revenue gathering purposes and render the scheme arbitrary. That in my opinion is not fatal to the legislation if one uses abroad interpretive approach to clause 1.

The provisions of s. 5(4), the November 1993 amendment, exceeds the permitted revenue gathering purpose and on its face is directed to a purpose unrelated to licensing, that is to regulating maximum export quantities of "any produce or commodity" and that such legislation is unfettered and discriminatory against commodity and produce exporters compared with all other businesses or calling and therefore offends against Clause 1 and clauses 4 and 14.

I am not persuaded of the correctness of those propositions. Firstly, the approach to interpretation must be a broad one. The legislation may in my opinion, adopt such a regime without breaching any of the Clause 1 guarantees. I decline to find that any unjustifiable discrimination exists in any sense in this case. So long as the legislation in question does not discriminate within a class or group it will not offend against the constitutional guarantees in Clause one. The circumstances of the present review are such as to compare one group, (commodity and produce exporters between which I am able to find no discrimination), with all other businesses and callings. It is as comparing drivers of commercial motor vehicles on the one hand with airline pilots on the other in the circumstances of this claim. They are both in the transport industry but the nature of their occupations is utterly different.

In the context of Clauses 4, 14 and 17, the plaintiffs complain that the legislation under scrutiny exceeds its objectives on a number of bases viz.:-

- Clauses 4, 14 and 17 underline and add to the Clause 1 guarantees. I accept that submission.

- Those clauses enact guarantees of equal protection of Law and due process and they therefore provide a constitutional guarantee which outlaws legislation which:-

- Discriminates or

- Discriminates unjustifiably

against one segment of Tongan society, (here the squash industry). I do not accept that the legislation under scrutiny discriminates in the impugned sense or in any unlawful way in the present context.

- Next, the plaintiffs complain that the Tongan squash industry has been increasingly singled out for governmental intervention and is therefore unjustifiably discriminated against. There is in my view no evidence to support that submission.

- Next, the plaintiffs complain that the legislation demonstrates partiality to growers as against others in the industry. I cannot perceive of the partiality complained of. There is no evidence that such partiality exists. The Minister spoke of a need to protect the growers and had some unpraiseworthy comments concerning the exporters, but not of the kind which would move this court to strike down the legislation under scrutiny.

- Regulatory "taking" of the kind referred to by Mr. Harrison in his submissions, is not in my opinion to be considered part of the Law in the context of this challenge. It is not a "breach of due process procedurally" [plaintiffs' submission 2.37]. Were it otherwise I would unhesitatingly regard the American authorities cited by the plaintiffs as persuasive:-

FIRST LUTHERAN CHURCH v LOS ANGELES COUNTY (1987) L Ed 2d 250 and NOLLAN v CALIFORNIA COASTAL COMMISSION (1987) L Ed 2d 677 and SEAWALL ASSOCIATES v CITY OF NEW YORK (1989) 74 NY 2d 542.

The plaintiffs submit that the legislation should be struck down in summary, on the basis that the guarantees means:-

- The legislation discriminates against some perhaps all in the squash industry.

- The legislation discriminates in favour of exporters and shows partiality to the growers benefiting them as a class and,

- Practically the Minister having assumed or acquired the role of decision maker for the quota allocations, there exists a separate breach, based on due process/natural justice grounds breaching the guarantees.

Taking the third point first. In my view such a proposition would rest more easily in a challenge based on Administrative Law but to the extent it may have weight in the constitutional sphere, I am against it. As to the first and second points neither the evidence nor the legislation reveals any discrimination against any relevant class or at all.

The case for the plaintiffs on the first claim concluded with the submission that the Legislature cannot impose its own economic theory, (here amounting to protectionism), upon those who disagree so as to infringe the constitutional rights of those in disagreement. That is not the case on the evidence before this court and I do not accept that it is the position. In any event the submission has the ring of the argument one would expect in a merits review.

The applications for declarations of invalidity of the Licences Act, the Licences Act Amendment Act 1993, the Order-in-Council and the 1994 quota are refused.

I turn now to consider the second claim of the plaintiffs.

THE PLAINTIFFS' SECOND CLAIM: INVALIDITY OF THE ORDER-IN-COUNCIL ON ADMINISTRATIVE LAW GROUNDS.

The claims are in paragraph 21 to 23 inclusive of the statement of claim. The form and substance of the Order-in-Council is set out in this judgment at page 28 supra. At trial and subsequent to the production of the material Cabinet paper, counsel for the plaintiffs intimated that the plaintiffs no longer relied on the allegations in paragraph 20.1 of the statement of claim.

The defendants and each of them enter simple denials by way of defence to the allegations and particulars of paragraph 20.

The gravamen of the second claim is that by reason of failures on the part of the defendants when imposing a maximum quota for squash export namely:-

- To take into account the constitutional rights of the plaintiffs.

- To take into account that in the past and in particular 1992 and 1993, squash export tonnages exceeded maximum restrictions imposed by the first defendant and as a result the Kingdom acquired considerable financial benefit.

- That had there been strict enforcement of a 10% allowance limit, growers would have been deprived of the opportunity to export squash which would have in turn deprived the Kingdom of substantial foreign exchange earnings. To take into account that no other pumpkin squash exporting countries in the region seek to impose tonnage limits.

- Fixing such a quota will cause serious financial losses to not less than 60% of the plaintiff's registered contracted growers and 50% of all growers.

- To take into account that the returns from squash exporting 1991 when there was no quota were significantly higher than 1993 ought to have demonstrated to the Privy Council the unsoundness of the argument for imposing a quota,

the decision of the Privy Council to fix a maximum quantity of pumpkin squash to be imposed to Japan in 1994 at 17,000 mt and the Order-in-Council (sic) are unlawful and invalid.

FURTHER OR ALTERNATIVELY

- The plaintiffs claim that by reason of the particularity set out above, the decision to set a quota limit by the Privy Council was unreasonable or alternatively the defendants acted unfairly towards those who would participate in the industry because:-

- The Privy Council failed to consult with the plaintiffs and/or participants denying them an opportunity to state their views concerning the 1994 limit of 17,000 mt but,

- By contrast consulted with Japanese importers and gave no opportunity to the plaintiffs to comment on Japanese representations,

thereby rendering the decision of the Privy Council to fix a maximum quantity to be imported (sic) to Japan in 1994 at 17,000 mt and the Order-in-Council unlawful and invalid.

Before considering the factual allegations, I take the Law relating to unreasonable exercise of discretion by an authority to be that which classically stated appears in the dictum of Lord Greene M.R. in ASSOCIATED PROVINCIAL PICTURE LIMITED v WEDNESDAY CORPORATION [1948] 1 KB 223 at 229,

"What then is the power of the courts? They can only interfere with an act of executive authority if it can be shown that the authority has contravened the Law. It is for those who assert that the local authority has contravened the Law to establish that proposition. On the face of it, a condition of the kind imposed in this case is perfectly lawful. It is not to be assumed prima facie that responsible bodies like the local authority in this case will exceed their powers; but the court, whenever it is alleged that the local authority have contravened the Law, must not substitute itself for that authority. It is only concerned with seeing whether or not the proposition is made good. When an executive discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the courts in a strictly limited class of case. As I have said it must be remembered that the court is not a court of appeal. When discretion of this kind is granted the Law recognises certain principles upon which that discretion must be exercised, in my opinion, is an absolute one and cannot be questioned in any court of Law."

"What then are those principles? They are well understood. They are principles, which the court looks to in considering any question of discretion of this kind. The exercise of the discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication, matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question the authority must disregard those irrelevant collateral matters."

On the concept of what amounts to unreasonableness in that exercise, Lord Greene continued that he was able to envisage the possibility of a decision being open to challenge on the ground that it is unreasonable in the sense that, in the view of the court, it was a decision which no reasonable body could reach.

Lord Diplock later commented on the Wednesbury principle in SECRETARY OF STATE FOR EDUCATION AND SCIENCE v TAMESIDE METROPOLITAN BOROUGH COUNCIL [1987] AC 1014 he said,

"In public law "unreasonable" as descriptive of the way in which a public authority has purported to exercise a discretion vested in it by statute has become a term of legal art. To fall within this expression it must be conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt."

I resume consideration of the plaintiff's complaints. Dealing with complaints on the failure to consult under this head. The complaint of the plaintiffs is that the Privy Council had no regard to the constitutional dimension of its task in setting quota in terms of Clause 1. I have already expressed my views on the constitutional claim concerning the guarantees, I would only add that the Privy Council was aware of its constitutional obligations. I am not persuaded that it did not consider the complaints of the plaintiff nor can I assume the complaints were not considered, in any event what does it matter?

Exhibit D8 to the Minister's affidavit is a Cabinet minute concerning the total squash allocation for the 1994 export season. It addresses the steps taken in arriving at the recommendations which would be conveyed to His Majesty in Council. The document speaks for itself. It makes reference to the six squash exporters (one of three attached letters) who sought the lifting of the quota system for 1994 but which did not seek consultation or discussion concerning the quota aside from seeking that it be abandoned.

The fixing of the quota for 1994 indeed the whole issue of the optimum kind of Tongan squash marketing which should be implemented to accommodate the best interests of as many Tonga squash industry members as possible had become of immediate and continuing concern to all in the industry if one is to be able to judge from the documentation available at this hearing and from the records of Government since the formation of the Tonga Growers Association. The Minister had to act and did so. The issues had been discussed by the plaintiffs; by exporters and by the Minister extensively by the time the quota was fixed. I am unable to say that the plaintiffs were denied or failed to obtain consultation by reason of the actions of the Minister or indeed the second defendant.

I find that D8 and that the 3 attached letters including that of the exporters were passed on to Privy Council for its consideration (see cross examination of the first defendant by counsel for second defendant and affidavit of Taniela Tufui), paragraphs 4 to 8 inclusive and annexures.

There is as far as I have been able to ascertain no evidence of consultation on the approach made to the Japanese importers referred to in D8 and there is of course no evidence of the exporters more particularly the plaintiffs being informed of and consulted about the discussions with the Japanese importers however the quota fixing for 1994, was and had continued to be a matter in which the plaintiffs had shown a continuing and keen interest, one might say, an ever increasing interest. The plaintiff's views were before the Privy Council.

The discussions between the defendants and the plaintiffs and with exporters generally, had been an ongoing process. It had started with the first defendant at the time of his appointment to office in August of 1991.

The further complaint of the plaintiffs is that the Privy Council was under a duty to consult and failed to do so. I cannot accept that the Privy Council can be said to have so failed.

POLICY

The plaintiffs have argued that the fixing of quota under the legislation is not a policy decision. The defendants particularly the second defendant submit that to fix quota under this Legislative regime is a matter of policy. There is evidence in the affidavit of Taniela Tufui (paragraph 8) that Cabinet and the Privy Council set policy in relation to the squash industry. The question is a matter of Law for the court to decide, not to be decided by a witness.

Given the unique nature of the Legislative process in Tonga, I conclude that any exercise of statutory power is reviewable. It becomes necessary therefore to consider whether the defendants failed to consult with the exporters in general or the plaintiffs in particular.

It is a principle of Law that in circumstances such as those in this review, each party must have reasonable notice of the case it must meet and must be given opportunity to state its case and to submit arguments against the proposed action to be taken by the authority should it desire to do so.

The learned Solicitor-General points out that there were a number of meetings in 1994, January 17, February 23 and March 31, convened by the Minister to which the plaintiffs had invitation and to which the plaintiffs forwarded submissions concerning the very issues of this review. For their part, the plaintiffs say that the Privy Council could not have been aware of those meetings since the Privy Council had before it only the annexure D8 to the affidavit of the first defendant which made no reference to the meetings of the Ministry with the exporters. There were of course the three attached letters to D8 to which the Privy Council had recourse (see affidavit of Taniela Tufui paragraphs 4-8 and the annexure thereto) when considering whether or not to make its order. The plaintiffs argue that the letters made no reference to the discussions the first defendant had had with the Japanese importers.

In the end there appears to have been no shifting of the central issues under consideration at the time the plaintiffs claim they had been denied consultation. The practical reality is now and was then that both parties knew the central issues. In my opinion there was no failure to consult the plaintiffs by the defendants in the sense that the Law requires.

THE NOTION OF SUBSEQUENT CONFIRMATION AND THE ORDER-IN-COUNCIL

It is submitted by the second defendant that the Order-in-Council has been superseded by the Legislative process. That is, the Legislative Assembly passed the Order-in-Council and confirmed its Legislative status on the 15th June 1994 and by publishing the passage of the order in the Government Gazette on the 1st November 1994, the order cannot therefore be challenged.

I take the Law to be that the fact that a rule has been laid before the House and has not been annulled does not bar review by the courts LAKER AIRWAYS LIMITED v THE DEPARTMENT OF TRADE [1977] 1 QB 643 (C.A.) and that it is immaterial that a statutory instrument has been affirmed in Parliament.

The plaintiffs complain that the "subsequent confirmation" argument was not pleaded. It clearly was not. An argument such as this one may not be run without pleadings. The argument of the defendants fails on both grounds.

THIRD CLAIM: THE INVALIDITY OF THE 1994 QUOTA ALLOCATION ON ADMINISTRATIVE LAW GROUNDS:

This claim is further or in the alternative to the first and second claims. Some of the pleaded particulars in support of this head are abandoned or not pursued. They are, paragraphs 24.1, 25.2.2, 25.2.3, 25.5.4, 25.5.5, 25.5.6 and in paragraph 25.2.9 the word "falsely" is abandoned and the Particular is subject to the ruling on the admissibility of parliamentary debates (supra p.21).

In summary form, the charges brought by the plaintiffs in the third claim are directed by the plaintiffs at the first defendant whom they allege:-

24. In purporting to determine and to allocate the 1994 quota allocation erred in Law and/or acted outside his lawful powers...

25. In purporting to determine and by allocating the 1994 quota allocation.

- Took into account irrelevant and/or

- Improper considerations or alternatively

- Demonstrated bad faith and/or - Bias and/or

- Prejudgment.

25.1 By taking into consideration:-

- Deliberate misconduct by the plaintiffs

- Breaches of undertaking or agreement namely breaches of quota restrictions by the 1st and 2nd defendants during 1992 and 1993

- Breaches of agreements by the plaintiffs with other exporters or growers

Considerations which were in fact erroneous.

25.2 That the first defendant was motivated by personal

- Hostility

- Ill-will and

- malice

Towards the plaintiffs and Dr. Sevele especially.

25.3 That the first defendant was influenced by

- Self-interest

- Conflict of interest and,

- Partiality concering [sic] the 1994 squash allocation and was

- Biased against the plaintiffs or in favour of others.

26. That the first defendant in purporting to award and allocate the 1994 quota allocation acted

- Unfairly and

- In breach of the principles of natural justice.

27. That the first defendant in purporting to determine and allocate the 1994 quota allocations reached a decision which was unreasonable.

There follows in the Statement of Claim, numerous allegations in support of the array of charges brought by the plaintiffs against the Minister in his ministerial and in his personal capacity.

Since the plaintiffs carry the burden of proving matters which would show a failure on the part of the Minister to act reasonably and in accordance with the principles of natural justice, fairly, without bias and partiality and without conflict of interest, without self interest, without malice, ill-will or hostility, without breaching undertakings or agreements, without misconduct, without pre-judgment bad faith and without acting outside the scope of his lawful powers, since that has not been shown in any respect, the plaintiffs must fail on this third head of claim.

It is necessary to consider the basis of each allegation to make it clear why I see the plaintiffs as having failed to adduce evidence to declare the Legislative scheme unlawful and invalid. I now turn the allegations in their turn.

Paragraph 24.1 is dependant upon paragraph 23 and accordingly fails. Paragraph 24.2 (plaintiffs submissions 4.1) is abandoned in light of the evidence of the deponent Taniela Tufui.

Paragraph 24.3 alleges (in summary), that s 5(4)(b) of the Licences Act placed the defendant under a duty to allocate the whole of the maximum export tonnage for 1994, 17,000 mt. There is, from the evidence led at trial, no basis for suggesting that he did not. Thirteen letters emanating from the Ministry signed by the Secretary for Labour Commerce and Industries were sent to the exporters. The letter includes the passage:-

"Your company allocations is 1250mt plus 13.3% of this allocation to be taken from the 2000 mt reserved as provision from excess production."

The bundle of letters tendered by the defendants was sent out to 13 exporters on the evidence of the first defendant at pp 26.9 and 30 of the transcript. The method adopted by the Ministry and in particular by the Minister achieves what the Licences Act requires to be achieved namely allocation of the total fixed quota for 1994.

The Act does not stipulate the method which is to be adopted by the authority making the allocation, only that the allocation must be the whole of the determined quota.

Paragraph 24.4

The plaintiffs claim that there were some among the exporter allocatees [sic] who possessed no Licence under the Licences Act. The defendants tendered as part of the case of each defendant two documents now marked D10 and D11. The letters I treat as Licences for the purposes of determining the claims in paragraph 24.4 and accordingly the plaintiffs claims must fail in that paragraph.

Paragraph 25.1 (Plaintiffs submission 4.5 and exhibit D 16).

The first defendant acknowledged having used the expression "punish" at the meeting of Ministry officials and the exporters held on the 1st March 1993. Exhibit D16. The minutes of the meeting, record reference to such as expression having been used by the Minister. In cross-examination the Minister frankly said that he had said that he would punish those who had broken the 1992 agreement. He added that he did not carry that statement into effect. In Examination in Chief he admitted having used the expression "punish them".....he said:-

"I stated in 1992 that if anyone broke another agreement then it would now be necessary to enforce sound punishment on those who had broken our 1992 agreement...."

".... I did not want to punish Touliki or SECL.... the 1992 and 1993 agreements were done by all the squash exporters, they all came to an agreement. This year in 1994 was the first time I had legally used discretion to decide on the tonnages and I did not punish SECL or Touliki."

In the Minister's affidavit the word "punishment" is canvassed in paragraph 50. The Minister simply denies the punishment was a factor affecting his consideration when allocating the quota for 1994, indeed as I understand his evidence "punishment" arose only in the context of the unwise remarks he made at the meeting recorded in exhibit D16. I regard his remarks as unwise. He is (and was then,) a qualified lawyer holding high office and while I am prepared to accept his word that punishment was never a consideration in the allocation of quota, if he failed to realise then the impropriety of what he was saying to the meeting of exporters in March of 1993, then I am sure that the significance of the remarks is not lost on him now.

I accept the evidence of the Minister that as regards the allocation of 1994, there was no consideration of punishment as part of the distribution among the allocatees. [sic] I will move on to consider the method which the Minister did use (Ministers affidavit paras 29-30, 32-38 and the minutes of the meeting of the 31st March 1994 annexure D19.) later in his judgment.

Paragraph 25.1 (Plaintiffs submission 4.8 Statement of Claim 26.1 - breach of natural justice - judging without hearing)

The plaintiffs claim that they were denied natural justice and judged without a hearing. They complain that while they had already made representations on the fixing of quota, they had not been given an opportunity to make submissions concerning their share of the quota.

The Law is well established. I repeat it. A decision may not be taken by an authority until the person affected by the decision has had an opportunity to state his case. The principle falls within the natural justice Law as being a special part of the ultra vires rule. WHITE v KUZYCH [1951] AC 585 per Viscount Simon at 600 and BOARD OF EDUCATION v RICE [1911] AC 179.

The plaintiffs submit that the Minister failed to place before them the factors which affected his decision as to the way in which he would allocate the quota. There was, the plaintiffs claim no opportunity given to the plaintiffs or to any exporter by the Minister or by anyone so that they might have an opportunity to understand the basis of the allocation in that they would then be appraised of the nature of any belief held by the Minister adverse to the exporter plaintiffs' interests and the way in which would operate against them.

The considerations which the Minister took into account I find to be those appearing in his affidavit, paragraphs 32, 33, 35, 36(a) - (g). In my opinion, the Law does not require a person in the position of the Minister in the circumstances of the present case to take stock of every step along the way of arriving at a decision such as the allocations of quota made presently. There had been a continuing process of consultation in place. The law exporters had been consulted regularly. They had not been denied a right to be heard. I conclude that under this head the plaintiffs were not denied natural justice or procedural impropriety which would invalidate the legislation. See COUNCIL OF CIVIL SERVICE UNIONS v MINISTER FOR CIVIL SERVICE [1985] AC 374.

Paragraph 25.3 Statement of Claim (plaintiffs' submission 4.11) Personal and pecuniary interests business and family relationship.

The allegation under this head is that the Minister was influenced by:-

- Self interest

- Conflict of interest

- Partiality and accordingly is or to be deemed to be

- Biased against the plaintiffs in favour of other allocates [sic].

Some particularity has been pleaded but not prosecuted, namely paragraphs 25.3.4, 25.3.5, 25.3.6.

I take the Law as it relates to bias in the context of the present claims, to fall within the umbrella of the natural justice principles - that whoever takes a decision must be impartial, having no personal interest in the outcome of the case, (memo judex in re sua).

By 1994 the Minister had no pecuniary interest in the squash industry. He had been a registered grower in the years 1991, 1992 and 1993. Both the Minister and his wife had registered with the MBM Company Limited, which was indeed the plaintiff's main competitor at all material times.

The sworn evidence of the Minister is that he was "totally free of ties or obligations to any exporter" in the exercise of the 1994 allocation. (Minister's affidavit paras 57-60 and cross examination transcript - page 12 28.11.94).

The Chairman Managing Director and Major Shareholder of the MBM Company Limited was at the material time HRH Prince Mailefihi, the brother in law of the first defendant, that is the brother of the first defendant's wife. The defendant was cross examined extensively concerning his interest in the MBM Company Limited, his relationship with his brother in law and whether he had ever acted as legal adviser to the MBM Company Limited, whether he was a guarantor of the MBM Company Limited.

What emerged from the evidence I find to be this. In 1991 the wife of the first defendant decided to grow squash from the income of which to supplement the first defendant's small salary at the Crown Law Office (-Minister's affidavit paragraph 57).

The first defendant registered with the MBM Company Limited and obtained a loan from the Tonga Development Bank in 1991. That year the first defendant made a profit. In 1992 and 1993 he repeated the exercise but "ended up in debt" which, as I understand his evidence, he continues to repay.

I accept that the first defendant has no financial interest in MBM Company Limited, that he is not a Shareholder of the Company nor is he beholden to the Company in anyway.

The witness Dr. Sevele alleges in his affidavit para 191 "the first defendant and his wife actually grow squash with MBM Company Limited and there appears to be, if there is not in fact, a conflict of interest, to the detriment of the plaintiffs who have received consequent lower export quotas.".

It is appropriate at this point to make findings concerning the credibility of first defendant. It must be said that the defendant acted unwisely in persisting with at least his association as a registered grower with the MBM Company Limited. The very phenomenon he may sensibly have feared, has occurred. He has been accused of partiality and indeed in respect of the very Company which is a major competitor of his accusers. That having been said I make it clear that I accept the first defendant as an honest witness in every respect. He attempted to recall and recount events honestly and to the best of his ability in my judgment.

There is in fact no set of circumstances in the present case which would on the findings amount to a conflict of interest in Law. What of a perceived or apparent conflict? In some cases judicial decisions will be quashed because of a real likelihood of bias. The decisions of the Minister stemming from his duties arising out of the legislation in question have striking similarities with but are not precisely the same as judicial decisions in litigation.

One parallel is the circumstances when a decision may be quashed where there exists the possibility of a real likehold [sic] of bias (although no actual bias). As Hewart LCJ said in R v SUSSEX JUSTICES EX PARTE McMARTHY [1924] 1 KB 256, 259 -

"A long line of cases shows that it is not merely of importance, but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done."

In my judgment there is not the kind of a real likelihood of bias contended for in this case. The lack of wisdom of an authority engaging in the industry over which he has duties of management and control may give rise to suspicion of partiality toward a company with whom he is registered as a grower but in the circumstances of this application the phrases "reasonable suspicion" or "real likelihood" cannot be said to apply. I find that there existed no real likelihood of the partiality and/or bias contended for.

Statement of Claim paragraph 25.2 (Plaintiffs submission 4.18) allegation of personal hostility ill-will and malice towards the plaintiffs and Dr. Sevele.

To establish such a charge against the Minister it is necessary for the plaintiffs to establish that the Minister acted in bad faith in order to achieve an object other than that for which he believed the power had been given, or maliciously, if he acted out of personal animosity. MUNICIPAL COUNCIL OF SYDNEY v CAMPBELL [1925] AC 338.

The plaintiffs emphasise that the Minister "sees the plaintiffs differently from the others." They claim that the Minister says that they (the plaintiffs) are greedy and seek a larger share of the quota. The plaintiffs claim that the alleged breach of the agreements is demonstrated to have been held against the plaintiffs but not against other exporter contenders for the quota allocation.

The evidence of the first defendant on this matter of claim appears in his evidence inter alia, at page 11, (28.11.94) he says,

"I have no personal grudge against Fred Sevele. In fact....he was one of the people who helped the move."

The Minister stands accused by the plaintiffs in the pleadings of serious personal hostility ill-will and malice against the plaintiffs. It is clear that relationships between them were in the professional sense, less than amicable. This application bears testimony to that fact. It is true that during the course of his evidence the Minister referred to the exporters as "the worst of the worst," but I am not prepared to infer or to find that he bore the plaintiffs or Dr. Sevele or any of them, personal hostility ill-will or malice in any sense of those expressions jointly or severally, and in the sense that it has rendered the decision or decisions of the Minister in respect of the 1994 quota allocation, unlawful or invalid.

I come to the point. In my opinion, there is insufficient evidence to conclude that any one of the charges levelled against the Minister either in his personal capacity or in his capacity as a Minister of the Crown has been proved under the particulars recited in paragraphs 24, 25, 26, and 27.

Paragraph 25.1 Statement of Claim. (Plaintiffs' submission 4.5)

The plaintiffs plead that:-

"..... The first plaintiff in purporting to determine and to allocate the 1994 quota allocation took into account irrelevant and/or improper considerations or alternatively demonstrated bad faith and/or bias ....."

As has been observed, before the passage of the amendment to the Licences Act in 1994, the Ministry had no means of controlling the quantity of squash which might be exported annually from Tonga or at all.

The means which the Minister resorted to in order to control quantity was to limit the granting of export licences, thereafter to consult with exporters in order to seek consensus among them to be recorded by written agreement.

The agreements were entered into between the exporters as a group, on the one hand and the Ministry representing Government on the other. The plaintiffs impugn the agreements. The agreements are two in number. The first of such documents is an annexure to the affidavit of the Minister D2, agreement for the year 1992 and the second D3 is to establish consensual quota and allocation for the year 1993. The plaintiffs assert that agreements were obtained without consensus at least on their part and in respect of the 1993 agreement by duress, (i.e.) by the Minister threatening that there would be no licences if the exporters refused to sign the document.

The Minister claims that the plaintiffs and Dr. Sevele in the past at any rate and on numerous occasions had held out that they favoured control of the market by quota. An account of the period leading to the passage of legislation is set out in the Minister's affidavit paragraphs 14, 15, and 16. It is useful to set them out:-

"15. Fred Sevele in his affidavit dated the 30th day of May 1994 referred to the agreement dated 27 April 1993 as follows:

Under Para 167:

"The agreement of the 27 April 1993 was something that the 5 Squash Council members (MBM Company Ltd, PPEL, TAI, HA'AMO and IPC) who signed it, outwardly willingly, but they did not really mean to adhere to it, as is evidenced from the Memorandum of 20 March 1994 to me by Mr S Edwards, the principal of Island Produce Corporation, and this memorandum is shown as annex FV S/44."

Under Para 97:

"As stated in that letter of 2 March 1993, the plaintiffs' representatives dissented and refused to agree to the allocations, saying that they would try to find a way of getting justice because the first defendant would not listen to their plea that they should be given at least a fair proportion of the increase in the tonnage."

Under Para 118:

"Despite the rescission of the Privy Council's earlier decision reducing back the plaintiffs' tonnage quotas to the original 3,500 metric tonnes, the plaintiffs were able to obtain and export 5,971 metric tonnes altogether."

Under Para 120:

"The plaintiffs together in 1,992 exported to Japanese buyers 3,700 metric tonnes of squash, in 1993 the plaintiffs exported 5,971 metric tonnes of squash."

Under Para 122:

"As a result of experience gained in exporting squash since at least 1991, most of the exporters were agreed that the limitation of the amount of squash they were permitted to export was not in their best interests and in fact was a disservice to the industry and a disincentive to improvement of production and export techniques."

Under Para 123:

"Most of the exporters agreed that the artificial and arbitrary restriction on tonnage exports imposed by the defendants were in effect a restriction on the exporters ability to bargain and do business effectively with the Japanese buyers, and a restraint of trade."

Under Para 130:

"Market conditions are variable, as evidenced by the above extra tonnages bought and exported from Tonga last year, and by the experiences of the two plaintiffs over the years, namely that despite, quota limitations, the plaintiffs have always been able to sell and export on contract and not on consignment basis whatever excess tonnages their growers delivered, and this did happen every year without fail as can be seen from the statistics shown in the table entitled "Squash Export Company Ltd and Touliki Trading Enterprises Ltd. Performance as Measured By Comparing Allotted Quotas and Actual Export Tonnages" and attached as annex FVS/14".

Mr F. Sevele's words and conduct are not reasonable, consistent or reliable. I provide the following examples:

(i) On the 13 February 1992 Mr. F. Sevele wrote to my Ministry and applied for a license. Attached hereto and mark as attachment "D4" is a copy of his said letter. He stated in that letter viz.:

"The volume of squash exports for 1992 season must restricted to 10000 mt to 12000 mt for the niche Market."

He supported the above statement in the 3rd paragraph of his letter by stating-

"We are in full agreement with all the above recommendations in that they are the most prudent approach to retaining, consolidating and developing this niche market"

Having made the above statements he then asked for 50% of the total quota to be allocated to Squash Export Company Limited and his other company namely Touliki Trading Enterprises Limited together with the other 5 exporting companies to share the remaining 50% of the quota. In 1991 Squash Export Co. Ltd exported an actual of 2964 mt against MBM Company Ltd's actual of 9386 mt and PPEL's actual for 2205.5 mt. In 1992 he virtually demanded 5000 mt to 6000 mt to be allotted to one of his companies Squash Export Company Limited between his other company, Touliki Trading Enterprises Limited and the other 5 exporting companies. There was no legal, economic, logical or other reason to justify such an unreasonable and selfish demand.

(ii) Attached hereto and marked as attachment "D5" a copy of the Minutes of meeting dated 4 March 1992 between myself and the Squash Exporters of 1991. The plaintiff companies were represented at that meeting. Mr. Fred Sevele's suggestions and participation are recorded as follows:

(a) "7. Fred Sevele suggested that allocation of squash export quotas among exporters be dealt with by exporters then submit a signed agreement to the Ministry. All the exporters endorsed this and therefore agreed to submit their agreement to the Ministry on Friday 6th March 1992. Members somehow agreed to stand by the majority decision regarding export quotas."

(b) "9. Hon. Minister's suggested allocations for exporters as basis for their meeting to finalize their respective allocations:

1.	MBM	- 2000 mt	
2.	SEC	- 2000 mt	
3.	TCB	- 2000 mt	
4.	Touliki	- 1000 mt	
5.	IPC (Steve)	- 600 mt	
6.	Tai	- 600 mt	
7.	Ha'amo	- 600 mt	
8.	'Eua	- 200 mt	
9.	Vava'u	- 1000 mt	
(c)	"11. .Fred Sevele expressed his agreement with the Hon. Minister's tentative allocation."	

(iii) Contrary to his assertions in paragraph 122, 123 and 130 of his affidavit and set out in paragraph 16 hereof he was a supporter of the quota system. Further he sought and advocated that allocation of export quotas be dealt with by the exporters themselves. His support of the quota system has been strong and well recorded until these proceedings were commenced. In his interview with the Matangi Tonga Newspaper in January - February 1992 he stated that quotas should be imposed as follows -

1992	-	10000 mt	
1993	-	14000 mt	
1994	-	16000 mt	

Attached hereto and marked as attachment "D6" is a copy of the Matangi Tonga Newspaper article entitled "EXPORT GROUP WANTS LICENCES CONTROLLED". Refer to the question - The Niche Market for the Squash in Japan, is it still there?

(iv) Mr. Fred Sevele's support of the quota system was repeated in1993. He also maintained his stand on the export quota be dealt with by the exporters. Refer agreement dated 27April 1993 - Attachment "D3". The Company signed that agreement on behalf of Squash Export Company Limited.

(v) In 1994 it would be true to say that Mr. Fred Sevele still supported the export quota system and its allocation amongst the exporters to be dealt with by the exporters. The problem however is that he now wants to insist that his companies be given approximately 50% of the total export quota for the year. Refer to his application dated 13 February 1992 - Attachment "D4". Also for 1993 an indirect approach behind my back to the Prime Minister in 1993 and judicial review for 1994.

(vi) Fred Sevele's opinion is that his companies performance are the best and supports this in part by referring to the actual tonnage exported in 1992 and 1993. Refer in particular to Paragraphs 130 and 150 of his affidavit dated 30/5/94. Also refer to paragraphs 122, 123 and 124 of the same affidavit. The rationale contained in these assertions are self serving. His companies deliberately broke their promise and undertakings in the agreements of 1992 and 1993. The other exporting companies are required to restrict their exports to their quotas whilst his companies broke their agreement and exported excess tonnage of 2471 mt in 1993 and 757 mt in 1992. He then applies those figure as the basis for claiming that his companies in comparison to the other exporters (who restricted their exports to the quota allowed) performed the best. His argument is fallacious, outrageous and illogical.

(vii) The real problem with Mr. Fred Sevele is that he considers his companies as special, above every other company and therefore entitled to preferential treatment. Unfortunately this is not possible under the limited quota under which every exporter must be considered. Because his companies must share with the other companies the limited quota he accuses me of malice, bad faith and acting against his interests. Also I am out to punish him. Every other exporter is against him and there is a deliberate plan to deny him his proper dues. I refute all these allegations and point to the fact that since 1992 Fred Sevele has been demanding that he or his companies should receive approximately 50% of the total export quota. It is interesting to refer to the Matangi Tonga Newspaper interview - Attachment "D6". Note his allegation of "vested interest" and "self interest", at that time against the Government.

As a matter of fact, regardless of the status and effect of the agreement (annexure to the affidavit of the Minister D3) the plaintiffs had in fact exceeded the allocated figure of 3500 mt which they agreed that they would abide by in the agreement for 1993, (2250 and 1250 mt for SECL and TTEL respectively). However there is an added factor which did not arise until cross examination.

The plaintiffs made application of the Minister by letter to have additional allocations of squash tonnage awarded them. By letter dated 2.11.93 on the letterhead of SECL, a request was made of the Ministry of Labour Commerce and Industries, seeking an additional 2500 mt in total since it was clear that the company contractually had buyers for the fruit. In short the application was approved SECL taking an additional 1500 mt and TTEL 2500 mt. The letter of approval being exhibit P 1.6 in this application and dated 11.11.93.

The letter was from the Minister. I find that the plaintiff were not in breach of their agreement D3. What they did was within the contemplation of the consensus agreement. That is they made an approach to the Ministry to obtain approval to export excess.

To have brought into account an erroneously held belief in the nature of the fact believed by the Minister here is improper. The first defendant says that at the time of swearing his affidavit he knew of the letter of 11. 11.93, (P1.6) but made no mention of taking it into account ("IOSQ P 22.") but that he regarded the plaintiffs as being in breach of the agreement D3 even if the additional allocations were to be taken into account. He said he gave the approvals in P1.6 because he was under duress having no authority legally to enforce the quota or the allocation. He added that he had taken the letter P1.6 into account when he swore his affidavit.

I am unclear as to how the first defendant considered the approvals he and his Ministry gave the plaintiffs affected his belief that the plaintiffs exceeded their quotas.

I conclude that he was saying that although the plaintiffs had made application for and had succeeded in obtaining approval for the additional allocations of quota, he held a belief that in so doing they had placed him in a situation where he had to, approve their additional allocations because had he not done so legal proceedings would have followed by way of judicial review. (Transcript P 26, IOSQ). What he did was an improper exercise of the discretion to allocate. It however does not stand as the only consideration in the decision he had to make. It must be weighed alongside all the other consideration to which he deposed in his affidavit. In my view his comprehension of the 1993 breach of agreement does not render the 1994 quota allocation unlawful and invalid.

The execution of the "agreement" of the 27.04.93, (D3), from the whole of the evidence was brought about following the meeting of the Minister with Messrs Siale and Latu personally on the 1st April 1994 and the meeting of 27.04.94 when the exporters were told that they would have to confirm their agreement and position with the quota and their particular allocations before the Minister would issue them with a licence. - (Cross Examination first defendant by plaintiffs and exhibit D 16.)

The plaintiffs and each of them on their part led evidence that the company officers responsible, Dr. Sevele, Mr. Siale and Mr. Latu felt that they in those circumstances were compelled to commit their companies to execute the 1993 quota and allocation agreement, D3. Their view was that D3 was signed under duress. The plaintiffs now argue that for the Minister to have taken into consideration that there had been a breach of "D3" by the plaintiffs by exceeding their agreed quota for 1993 is an improper consideration amounting to "punishment" which they contend renders the allocation unlawful.

I consider it to be an improper consideration in the legal sense. Whether it amounts to "punishment" or not does not render it any more improper. I conclude that the Minister improperly took into account that the plaintiffs had "breached" the 1993 allocations when determining allocations of quota for 1994. I conclude however that that impropriety is one consideration among a number and standing alone it cannot now be said to vitiate the 1994 quota allocation.

Finally, in his affidavit, the deponent William Harris, the Secretary of the Ministry of Labour Commerce and Industries, made reference to alleged exchanges between himself and Dr. Sevele both at a luncheon and later during a telephone conversation. The alleged exchanges involve serious allegations against Dr. Sevele who had denied them. Mr. Harris was not called as a witness to be cross-examined on his affidavit. I am just unable to come to any conclusion about the assertions made by Mr. Harris. Accordingly I exclude those allegations from my deliberations and make no findings concerning them.

The plaintiffs' application for declarations that the Licences Act, the Licences Act Amendment Act 1993, the Order-in-Council and the 1994 quota allocation are unlawful and invalid, are refused for the reasons I have given.