IN THE COURT OF APPEAL OF TONGA
Court of Appeal

CA4/99 and 5/99

Faleola

v

Kingdom of Tonga

Burchett J, Tompkins J, Beaumont J 
12 July 1999; 23 July 1999 

Practice and procedure — claim for judicial review — previously refused — appeal dismissed 

The plaintiff was dismissed from his employment. He 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. By an interlocutory judgment delivered on 20 November 1998, Finnigan J struck out the appellant’s action, and directed that each party pay his and its own costs. The appellant appealed against the striking out order and contended that the judge erred in holding that the claim brought was the same as that in respect of which leave had already been refused. The respondent cross appealed against the costs order.

Held: 

1. The only cause of action alleged in the statement of claim was that which would, had leave been granted, have entitled the appellant to pursue an application for review. That course was no longer open to the appellant as leave to bring such an application had already been declined. 

2. The judge was correct to hold that the action must be struck out. The appeal was dismissed. 

3. Costs were within the discretion of the trial judge and the exercise of that discretion will only be interfered with if it can be shown that it had been exercised on a wrong principle. 

4. There was no reason for interfering with the costs order made and the cross appeal was dismissed. 

Cases considered: 
 Fotofili v Free Wesleyan Church of Tonga & Kingdom of Tonga [1994] Tonga LR 111 
 O’Reilly v Mackman [1983] 2 AC 237; [1982] 3 All ER 680 (QB & CA) 

Statutes considered: 
 Government Act CAP 3 

Counsel for appellant : Mr Kaufusi 
Counsel for respondent : Mr Cauchi 

Judgment

The appellant was employed by the Government of Tonga as SubTreasurer, Postmaster, Collector of Customs, and Harbourmaster at Vava’u. He was dismissed on 5 September 1995. On 20 April 1998 he commenced an action against the respondent claiming damages for wrongful dismissal, and other consequential remedies. By an interlocutory judgment delivered on 20 November 1998, Finnigan J struck out the appellant’s action, and directed that each party pay his and its own costs. The appellant has appealed against the striking out order. The respondent has cross appealed against the costs order. 

The earlier and the present proceedings 

On 31 July 1997, the appellant filed an application to extend the time and for leave to apply for judicial review of the Cabinet decision that he be dismissed. Following a hearing, that application was dismissed by Hampton CJ on 11 August 1997 on the grounds that the application had not been made promptly, that it had not been made within 3 months of 5 September 1995 as required by O 27 r 2(2), and that no good reason had been shown for extending the 3 month period. Further, the Chief Justice found that it was apparent that the relevant allegations were put to the plaintiff, and he was given the opportunity to, and did, reply. 

The statement of claim in the present proceedings sets out the allegations contained in a letter from the Prime Minister’s office concerning the appellant’s conduct. In paragraph 8 of the statement of claim, the appellant says that these allegations “were erroneous in part, lacked proper foundation or substance and/or merit.” No particulars are given in support of this pleading. Nor is it alleged that, in dismissing the appellant, the respondent acted in breach of any term, expressed or implied, of the contract of service between the appellant and the respondent. 

The statement of claim refers to a report from the Auditor General; it alleges a failure to supply the report to the appellant, and that this failure was irregular and unfair. It alleges delay in deciding the appellant’s case, and that there was an attempt to force the appellant to resign. 

These allegations are summarised in paragraph 17: 

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

The appellant then alleges that “the plaintiff’s dismissal was wrongful and bad in law.” He seeks declarations that his dismissal was invalid, that he is entitled to certain other salary and remuneration, judgment for $150,000 general damages, $150,000 aggravated damages, $100,000 exemplary damages, and costs. 

The judgment under appeal 

In his judgment, Finnigan J reviewed the nature of an application for review, describing it as a supervisory remedy in administrative law. After referring to the need for leave to bring such an application, he said that where an application for leave has been refused, that application may not be renewed: 37 Halsbury 4th ed 567-571. 

He considered the new action to ascertain whether it was in fact a new action, or whether it was in effect a renewal of the appellant’s application for review in the guise of an action. If the latter, or if the appellant is suing in an action for relief at law when the proper course for him to choose is judicial review, the court will not allow him to continue. 

After reviewing the grounds set out in the statement of claim, he concluded that the action rested on a claim of failure of procedural fairness and an entitlement to natural justice. There was no claim of any contractual or tortious breach of a duty owed to the appellant. It was not, as counsel for the appellant had submitted, a claim in tort. It was a claim in administrative law seeking a judicial review of an administrative action. As leave to bring such an action had already been refused, he was bound to strike it out. 

Conclusion 

Counsel for the appellant submits that the judge erred in holding that the claim now brought was the same as that in respect of which leave has already been refused, and that he was bound to strike it out. He submits that the former claim is totally different from what is stated in the present action. The judge erred in saying that there was no claim of breach of duty owed to the appellant. To so hold unnecessarily restricts the jurisdiction of the court. 

We do not accept those submissions. When the statement of claim in the present action is considered, particularly paragraph 17, it is obvious that the claim is founded on allegations of procedural unfairness. Nowhere is it alleged that the respondent was in breach of any duty of care, or of some other duty, owed by the respondent to the appellant, which could have founded an action in tort. Nor is it alleged that the respondent was in breach of a term of the plaintiff’s contract of employment with the respondent, which could have founded an action for breach of contract. The only cause of action alleged is that which would, had leave been granted, have entitled the appellant to pursue an application for review. But that course is no longer open to the appellant, leave to bring such an application having been declined. 

In O’Reilly v Mackman [1983] 2 AC 237; [1982] 3 All ER 680 (QB & CA) at 695, Lord Denning MR said, in a passage that was adopted in Fotofili v Free Wesleyan Church of Tonga & Kingdom of Tonga [1994] Tonga LR 111, wherever there is available a remedy by judicial review, that should be the remedy to be taken by an applicant, and that it is an abuse of the process of the court for a plaintiff to go by action when he would never have been granted leave to go for judicial review. That is precisely what the appellant in this case is endeavouring to do. The judge was therefore correct to hold that the action in its present form must be struck out. The appeal is dismissed. 

The striking out of this action, and the dismissal of the appeal, will not prevent the appellant from commencing and prosecuting an action for wrongful dismissal, if there are proper grounds for doing so, and the claim is clearly founded on a proper cause of action, which in this case could be breach of a term or terms of his contract of employment. The Tongan Estacode prescribes the terms and conditions of service of officers: Clause 4 of Section A. It contains in Section K (b) the disciplinary procedures, including the procedure for serious charges. Other terms may be incorporated into a contract of service expressly, by implication, by statute, or by custom. There may also need to be considered any relevant statutory provisions, including, for example, s 17(4)(a) of the Government Act (Cap 3), which provides that the Prime Minister, with the consent of the Cabinet, has the power to appoint, dismiss or discipline all Government officers. Any further action, if it can properly be brought and subject to any relevant statutory provisions, will be concerned with whether, in dismissing the appellant in the way it did, the respondent breached any of the terms of the appellant’s contract of employment. 

The cross appeal 

In support of the respondent’s cross appeal, Mr Cauchi submitted that, where the appellant’s action had been struck out, the Judge was in error in directing that each party should pay its own costs, apparently on the grounds of the appellant’s impecuniosity. He submitted that the Judge should have awarded costs to the respondent as agreed or taxed. 

It has long been recognised that costs are within the discretion of the trial judge. An appellate court will only interfere with the exercise of that discretion if it can be shown that it has been exercised on a wrong principle. That is not the case here. We see no reason for interfering with the costs order made. The cross appeal is dismissed. 

Costs 

The appeal and cross appeal have both failed. The major issue was the appeal. In those circumstances we order that the appellant pay the costs of the appeal in an amount equal to one half of what the costs would otherwise have been. If agreement cannot be reached, the costs are to be taxed.