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

NO. CV. 692/2001

BETWEEN:

SIOSAIA H. FONUA
Plaintiff

AND:

TONGA COMMUNICATIONS CORPORATION LIMITED
Defendant

BEFORE THE HON CHIEF JUSTICE WARD

COUNSEL: Mr Niu for plaintiff
Mr Tu’utafaiva for defendant

RULING

This is a claim for damages for wrongful dismissal. Following a hearing, I gave judgment in which I found that the plaintiff had not been dismissed but had resigned voluntarily.

The statement of claim alleged that there was a pension scheme under which a staff employee was entitled to a pension upon attaining 50 years of age. The defence required proof of such a scheme and alternatively denied that the defendant was bound by the terms and conditions of the scheme as set out in the statement of claim.

At the hearing, the defence did not call any evidence and I found:

"The only evidence of any pension rights was in the evidence of the plaintiff. He told the court that pension entitlement was adopted from Government procedures. It was not written but was a standard procedure. He stated he should get two thirds of his salary for 5 years or a pension ‘continuously’. He referred to another employee who had resigned in 1999 or 2000 and was paid a pension in that way. None of that was challenged in cross-examination and no evidence was called to rebut it."

I found that the provisions of the Staff Regulations which had been exhibited showed support for the existence of a pension scheme and continued:

"I am satisfied on a balance of probabilities that the plaintiff resigned voluntarily when he realised the alternative was that he would be charged [with misconduct] and I am equally satisfied that he is, therefore, entitled to any pension or provident fund payments which are due on resignation.

Unfortunately, there is insufficient evidence of the terms or scale of any such scheme. I am unwilling to make an award on the skeletal description given by the plaintiff in his evidence. However, I am satisfied, in the absence of any evidence to the contrary, that the plaintiff has proved the existence of such a scheme and his entitlement under it."

I adjourned for counsel to agree the entitlements but no agreement was reached and so I adjourned to allow counsel to call further evidence of the scheme and the plaintiff’s entitlement under it.

Submissions were filed and the case set for a hearing on quantum. However, on the date set for the hearing, counsel advised the court that they would supply documentary evidence and so the case was adjourned for productions of the documentary evidence.

Evidence was filed for the plaintiff in the form of an affidavit by him setting out his knowledge of other case where a pension had been paid.

No evidence was filed by the defendant and when the case was next before me to fix a date for oral submissions, counsel advised the court they were content to rely on the material already before the court.

The written submission by counsel for the plaintiff states that, "The pension scheme which the defendant had was based upon the pension scheme provide for in the Pension Act (Cap 8)."

In his affidavit, the plaintiff refers to his evidence at the trial that the TTC had a pension scheme "under which I stated that I was entitled to receive a pension upon my resignation." He further states his belief that the scheme was such that he was entitled to receive such a pension "upon attaining the age of 50 years".

In his submission, counsel or the defendant no longer disputes "that there is in existence a pension scheme and the issue therefore is the entitlement of the plaintiff to receive anything from the pension scheme". He goes on to argue that the phrase pleaded in the statement of claim that he is entitled to a pension ‘Upon attaining 50 years of age’ and the similar phrase in section 6 of the Pension Act that an employee shall not be granted a pension who "has not attained the age of 50’ mean that any employee who resigns before he reaches the age of 50 loses all pension rights.

I am not willing to allow this case to be argued in this manner. The burden of proving the existence of a pension scheme clearly lay on the plaintiff. The existence of such a scheme was proved because there was effectively no evidence to counter the statements of the plaintiff. How much better it would have been if counsel for the plaintiff, when preparing the case, had used discovery to ascertain the details of the scheme or of any other payments under the scheme.

The reluctance of counsel to use discovery is a constant source of surprise to me. It has been referred to by Ford J, recently in Veikoso v Dateline Shipping and ors; CV 173A/2003, 10 May 2004 at page 12. I agree entirely with his comments.

As there is now no dispute that such a scheme exists, it seems remarkable that the court has not been provided with any details of the nature of the scheme or how it operates. I would expect an organisation like the defendant would have well-established rules for the application of such a scheme. Had the plaintiff sought discovery, he might have been able prove the whole of his case during the trial. I fully understand that the plaintiff might not personally be familiar with the details of such a scheme but how much better if counsel when presenting his case had documents to support his assertion of its existence and his own entitlement.

It is not the court’s duty to direct counsel how to prepare and present their cases in court. The consequence of poor preparation should be that his case will not succeed. Unfortunately, in such circumstances, the person who suffers is unlikely to be the lawyer but the party who has entrusted him with the conduct of his case.

In this case, I am not willing to allow the matter to proceed on the submissions of counsel as to the meaning of a phrase, which has not even been properly proved to be part of the pension rules. On the other hand, if I simply find that plaintiff’s entitlement has not been proved, I may be causing an injustice.

The present position is the result of the manner in which both counsel have conducted their respective cases. I am not content to proceed on than basis.

I shall order that there should now be discovery by the defendant within 7 days of all documents in his possession relating to a pension scheme, entitlement to the scheme and payments made by the defendant under any such scheme operated by the defendant and inspection by the plaintiff. I shall list the case for hearing in chambers then on 22 June 2004 at 9:00 am.

NUKU’ALOFA: 10 JUNE 2004

CHIEF JUSTICE