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

NO. C. 176/01

BETWEEN:

SEMISI TAPUELUELU
Plaintiff

AND:

1. PETELO SOAKIMI
2. MASAO SOAKAI
3. 'ETUENI TUPOU
Defendants

Counsel: Mr Tu'utafaiva for the plaintiff and
Mr Taumoepeau for the defendants

Date of hearing: 7 May 2001
Date of judgment: 5 June 2001

JUDGMENT

The plaintiff, Semisi Tapueluelu describes himself in his statement of claim in this proceeding as the Superintendent of Prisons "but presently suspended from his job". He says he was suspended from his job as Superintendent of Prisons by the Minister of Prisons on 22 October 1998 pending an inquiry as to wrong doings alleged against him.

In about October 1999 a court of inquiry was constituted by Cabinet pursuant to section 15 of the Prisons Act (CAP. 36) to inquire into 11 specific charges brought against the plaintiff which related to alleged incidents occurring between December 1996 and September 1998. On 3 May 2000 the court of inquiry released its decision. It convicted the plaintiff on one of the charges and fined him $25 but he was acquitted on the remaining 10 charges.

The plaintiff commenced the present proceeding on 13 March 2001. He names the chairman and the two other members of the court of inquiry as the defendants. In his pleading the plaintiff attacks not only the procedures adopted by the court of inquiry and the conduct of the hearing itself but he goes further and he alleges that section 15 of the Prisons Act under which the court of inquiry was established is unconstitutional and he seeks orders declaring section 15 of the Prisons Act and the court of inquiry and its decision illegal. He further seeks a declaration that Part one of the Prisons Act (in particular sections 15 to 22) is also unconstitutional and null and void because it provides no rights of appeal against findings of a court of inquiry.

The Solicitor General acting for the defendants has applied, pursuant to Order 8 Rule 6 of the Supreme Court rules to strike out the claim on the grounds that it discloses no reasonable cause of action and further that the claim is an abuse of process because it should have been brought by way of an application for judicial review instead of by way of ordinary action commenced by writ and statement of claim.

In response, counsel for the plaintiff explained that his client's decision to proceed by way of ordinary action rather than by way of application for judicial review was deliberate because the claim was not what he called, the usual type of claim in which review is sought but rather a constitutional challenge. As counsel rather succinctly put it, the plaintiff's main submission is that section 15 of the Prisons Act which provides for the establishment of a court of inquiry, is unconstitutional because it is contrary to clause 84 of the Constitution (CAP. 2) which vests the judicial power of the Kingdom in the Court of Appeal, the Supreme Court, the Magistrates' Court and the Land Court but it does not authorise judicial or quasi-judicial powers to be exercised by a court of inquiry. Counsel's submission was that, as there is nothing in clause 84 of the Constitution that authorises the establishment of a court of inquiry, it follows that section 15 of the Prisons Act in (?) setting up such a tribunal must be unconstitutional.

Counsel submitted that the plaintiff's claim for the various declaratory judgments was sufficient in itself to give rise to a cause of action and he did not need to seek damages or other relief against the defendants as had been argued by counsel for the defendant.

In response to the submission that the plaintiff should have proceeded by way of application for judicial review rather than ordinary action, counsel for the plaintiff argued that it was not necessary for the plaintiff to adopt that procedure in this particular case for the reason, as I understand it, that the judicial review procedure applies when a declaration is being sought declaring a particular decision null and void but in the present proceeding the plaintiff, as counsel put it, is

"not seeking a declaration that the tribunal's decision is null and void for unfairness or any of the usual reasons but a declaration that section 15 of the Prisons Act, under which the tribunal was established, is unconstitutional and therefore null and void".

Counsel went on to acknowledge that the plaintiff has no grounds for saying that the Tribunal was not entitled to make the findings it did nor was he challenging the appointment of the members of the court of inquiry. His challenge was confined to the underlying legality of section 15 and whether or not it was consistent with the constitution. On this basis, so his argument ran, as the plaintiff was not challenging the court of inquiry's decision, it was not necessary for him to proceed by way of application for judicial review.

The significance of whether the plaintiff should have proceeded by way of judicial review or by way of ordinary action lies in the fact that it is a well-established principle in English administrative law that in litigation involving predominantly public law elements it is, as a general rule, an abuse of process to proceed by way of ordinary action instead of application for judicial review. It is now over 18 years since Lord Diplock made his well-known speech in the House of Lords in the case of O'Reilly v Mackman [1983] 2 AC 237 which set out the basic rule in these terms:

". . . it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to admit a person seeking to establish that a declaration of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 (the judicial review rules) for the protection of such authorities. "

That principle was applied by Ward CJ in Fotofili v Free Wesleyan Church of Tonga & Kingdom of Tonga [1994] TLR 111, approved by the Court of Appeal in App No. CA 4&5/99 (unreported). In the present case the plaintiff argues that he is not challenging the tribunal's decision but he is seeking a declaration that the section in the Prisons Act which provides for the establishment of the court of inquiry is contrary to the Constitution. Counsel claims, without citing any authority for the proposition, that the type of declaration he seeks cannot be obtained through judicial review proceedings but only through ordinary action.

I am afraid that I cannot accept that the plaintiff is able to unshackle himself from the tribunal's decision in the way he seeks to do and come along to this Court seeking a declaration in the abstract about the legality of section 15 of the Prisons Act. The approach suggested by the plaintiff, if accepted, would be akin to asking the Court to make a binding declaration on a purely academic or hypothetical question and it totally ignores the reality of the situation which is that the legality of the court of inquiry's decision is an integral part of the plaintiff's claim. Some six or seven pages of the statement of claim are taken up entirely with the findings of the court of inquiry. By challenging the underlying sections in the Prisons Act under which the tribunal was established as being inconsistent with the Constitution, the plaintiff is effectively challenging the legality of the court of inquiry's decision and, in the absence of appeal rights, the proper procedure for such a challenge is by way of judicial review.

There is no question that, as part of the review process, this Court has power to determine whether a statutory power is consistent or otherwise with the Constitution. As the learned authors of "Judicial Review of Administrative Action "(1996), page 101:

". . . Parliamentary sovereignty is subject to the rule of law, and judicial review is integral to that concept. "

Halsbury, vol 37, paragraph 577, confirms that the court has the same declaration making powers on review as in an ordinary action:

"The jurisdiction to grant a declaration or an injunction on an application for judicial review is concurrent with the jurisdiction to grant such forms of remedy or relief in actions begun by writ or originating summons.

In the recent decision of Clark v University of Lincolnshire and Humberside [2000] 3 All ER 752, the Court of Appeal noted that Lord Diplock had recognised that there could be exceptions to the general rule which he had laid down in O'Reilly v Mackman regarding the exclusivity of the Ord 53 procedure. In the Clark case the court was called on to consider the appropriateness of a student proceeding in a claim against a university by ordinary action based on breach of contract rather than by way of judicial review. The university contended that the plaintiff should have proceeded by way of judicial review and that it was an abuse of process to sue in contract.

The Court of Appeal accepted that while a university is a public body and the preferable procedure for commencing court proceedings would usually have been by way of review, in the case before it the proceeding was based on the contract between the student and the university thus bringing it within one of the exceptions to Lord Diplock's general rule so that it did not have to be brought by way of judicial review. The court, nevertheless, went on to consider the effect of delay in commencing proceedings when the relief claimed is one of the discretionary remedies such as a declaration. Lord Woolf noted (para 35):

"Whilst in the past, it would not have been appropriate to look at delay of a party commencing proceedings other than by judicial review within the limitation period in deciding whether the proceedings are abusive, this is no longer the position. Whilst to commence proceedings within a limitation period is not in itself an abuse, delay in commencing proceedings is a factor which can be taken into account in deciding whether the proceedings are abusive. If proceedings of a type which would normally be brought by judicial review are instead brought by means of an ordinary claim, the court in deciding whether the commencement of the proceedings is an abuse of process, can take into account whether there has been unjustified delay in initiating the proceedings. "

The present case, in my opinion, is not concerned with one of the exceptions to the O'Reilly v Mackman rule. The proceeding relates predominantly to public law issues and as such it should have been commenced by way of application for judicial review rather than ordinary action but even if it could be said to come within one of the exceptions to the general rule Lord Diplock spoke about then I would have held that the delay in commencing proceedings in this case, in all the circumstances, amounted to an abuse of process.

As it is, I uphold the defendant's application on the grounds of non-compliance with the rule laid down by Lord Diplock in O'Reilly v Mackman and on that basis I now order the proceedings to be struck out as an abuse of process. The defendants are entitled to costs to be agreed or taxed.

NUKU'ALOFA: 5 May 2001.

JUDGE