IN THE SUPREME COURT OF TONGA
Supreme Court, Vava’u

C 646/98

Faleola

v

Kingdom of Tonga

Finnigan J
18 November 1998; 20 November 1998

Practice and procedure ⎯claim for judicial review ⎯ previously refused - claim struck out 

The plaintiff was dismissed from his employment and claimed that the dismissal was wrongful and bad in law. He sought a declaration that his dismissal was invalid and that he was entitled to certain salary and remuneration payments and damages under three separate heads. He had filed a previous application for judicial review which had been refused. Relying on that refusal, the defendant moved the court pursuant to Order 8 Rule 6 of the Supreme Court Rules for an order setting aside the writ and/or striking out the statement of claim and/or dismissing the claim. The plaintiff contended that the action was a claim in tort which was quite distinct from the application for judicial review. The key to whether the action would be allowed to continue or not was whether it was a new and different cause of action? 

Held:

1. The new statement of claim was an expanded statement of the earlier claim. It still sought judicial review of administrative actions. Leave to bring such a claim had already been refused. 

2. The claim was, accordingly, struck out. 

Statutes considered: 
Evidence Act Cap 15 

Rules considered: 
Supreme Court Rules 1991 

Counsel for appellant: Mr Cauchi 
Counsel for respondent: Mr Paasi 

Judgment

The plaintiff has filed an action against the defendant, suing the defendant “in respect of the acts and omissions of the Civil Servants employed by the Ministry of Finance and elsewhere in the Government of Tonga”. The defendant has moved to strike it out. The plaintiff in his statement of claim states that he was dismissed from his employment with the Government Civil Service on 5 September 1995. He claims that his dismissal was wrongful and bad in law. He seeks a declaration that his dismissal was invalid, a further declaration that he is entitled to certain salary and remuneration payments and damages under three separate heads. 

His statement of claim, though lengthy, is no more precise than that. He does not specify whether he sues in contract or tort or otherwise. 

It happens that he has sought remedies of a similar kind before. On 31 July 1997 he filed an application for leave to apply out of time for Judicial Review (C668/97). The proposed statement of claim sought as relief a declaration that the cabinet decision by which the plaintiff had been dismissed was invalid, and damages. The application for leave involved two separate applications, the one for leave extending the time and the other for the necessary leave to seek that remedy. A hearing took place and both parties were heard. On 11 August 1997 the court issued an order refusing both applications. No separate judgment was issued, the order itself contained the detailed reasons. It is necessary to set out the order in full, it is as follows: 

“Having Heard Counsel (Mr Tu’utafaiva : Mr Cauchi)

IT IS ORDERED THAT - Applications to extend time and to then apply for leave for judicial review both be refused as: 

1. Primary requirement is for application to be made promptly (O 27 r 2(2)), and that not done here; 

2. Secondary provision is to apply in any event within 3 months (from 5 September 1995) (O 27 r 2(2)) and that not done here (papers first filed in this Court on 31/7/97); 

3. No ‘good reason’ shown for extending the 3 months period (O 27 r 2(2)) given (a) plaintiff made contact with lawyers on 19 September 1995; (b) at latest his lawyers had full instructions by 29 August 1996, but no action was taken until 31 July 1997; (c) to grant an extension could create substantial prejudice to and/or would be detrimental to the good administration of the civil service of the Kingdom; (d) there was and is undue delay by the Plaintiff and a substantial part of that is unexplained and/or unsatisfactorily explained; (e) there are no reasonable excuses for that unexplained delay; and in any event; (f) even on the plaintiff’s own affidavit (paras 6 and 7) and proposed statement of claim (paras 8, 9 and 11) it is apparent that the allegations were put to the plaintiff and he was given the opportunity to, and did, reply.” 

In reliance on that order, the defendant now moves the Court pursuant to Order 8 Rule 6 of the Supreme Court Rules for an order to set aside the writ and/or strike out the statement of claim and/or dismiss the claim in the present action. It does so on four grounds: 

(i) that the statement of claim discloses no reasonable cause of action;

(ii) that the statement of claim is scandalous, frivolous, or vexatious; 

(iii) that the action is an abuse of the process of the court; and 

(iv) the grounds set out in counsel’s own affidavit, which are to the effect that the present statement of claim is substantially the same as the proposed statement of claim which was attached to the earlier application for leave. 

Submissions were made to me by counsel for both parties. Without referring to them specifically, I state that they are the guidance for the decision I am about to set out.

One must start by considering the nature of judicial review. Application for that remedy is governed in the law of Tonga by the Supreme Court Rules, O27. As far as O27 goes, it reflects the law of England. The remedy is a supervisory remedy in administrative law, it touches the proceedings and decisions of (inter alia) bodies charged with the performance of public acts and duties. It is normal to seek specific relief in the application, such as a declaration of legal rights and damages. It is a necessary pre-condition of an application that the leave of the Court be first obtained. Delay alone may be a sufficient reason for refusing leave. In civil proceedings such as the present, where the Judge refuses leave after a hearing, the application for leave may not be renewed. [Halsbury, 4th ed Vol 37, 567-571]. 

So, the plaintiff applied for a remedy in administrative law. In doing so he chose a path with two substantial obstacles and, if leave were refused, a dead end. He went down that path, and carne to the dead end. 

He has now started a new action. He is prevented from renewing his application for leave and is no longer seeking judicial review. Prima facie, the only preliminary obstacle to his filing a new action is s 16(1)(c) of the Evidence Act Cap 15, the 5-year limitation period, and he is well within that. 

Because of the defendant’s objections, it is now necessary to study his new action, in order to ascertain whether it is in fact a new action, or whether it is the same application. If it is a new action, ie, has a new cause of action, then there is jurisdiction for it. The Court has concurrent jurisdiction to grant the relief of declaration and damages. It may do so either in judicial review proceedings, or in actions begun by writ or originating summons. However, if the plaintiff is merely renewing his application for judicial review in the guise of an action, or if he is suing in an action for relief at law when the proper course for him to choose is judicial review, then the court is not able to let him continue. [Halsbury #577]. 

So, what is the nature of the new action? Mr Cauchi for the defendant submits that it is a renewed application for the same remedies, and does not disclose any cause of action different from the one that the Court has refused to entertain. That is his first ground. The other three grounds are essentially one ground, ie, that the Court is prevented by several principles from opening up a matter which it has conclusively determined. Mr Paasi on the other hand points to the distinction between applications for judicial review, which are governed by O27, and civil actions in tort. In his submission the plaintiff is exercising his right in s 16 of Cap 10 to commence a civil action for damages within 5 years of his dismissal. 

Mr Cauchi relies on the doctrine of res judicata, ie, issue estoppel in its broad form. 

The key to whether the present action should continue or not is the question, is it a new and different cause of action? It is certainly not a claim in contract, there is no claim of an employment or service contract and no claim of breach of contract. The declaration claimed is not a declaration of contractual rights. Mr Paasi has said it is a claim in tort. The key to the claim is in paragraphs 17 and 18 of the statement of claim, which are as follows: 

“17. Individually and collectively, the improper grounds for allegations against the plaintiff, the failure to afford the plaintiff an opportunity to comment on the Auditor’s Report, the delay in deciding the plaintiff case, deciding it on improper grounds, and threating and demanding the plaintiff resignation amounted to irregularities, constituted improper grounds for the dismissal of the plaintiff. 

18. That the plaintiff’s dismissal was wrongful and bad in law.” 

The claim in paragraph 18 is that the dismissal was wrongful and bad in law. It rests on the claims in paragraph 17 of failures in procedural fairness. There is no claim of breach of a duty owed to the plaintiff, no claim of entitlement to procedural fairness. The claim rests on entitlement to natural justice. This is not a claim in tort. It is a claim in administrative law. The new statement of claim is an expanded statement of the earlier claim. It still seeks judicial review of administrative actions. Leave to bring such a claim has already been refused, and I am bound to take only one course, and strike it out. I do so accordingly. 

I agree with Mr Paasi, that all action filed within five years and based on a claim of tort, or a claim of contractual breach, would avoid the obstacle of the previous refusal of leave.

In respect of costs, after hearing submissions from counsel in chambers, I direct that each party pay its own costs on this application.