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

CV. 374/2004.

BETWEEN:

ALAN FISHER TAIONE
LALI MEDIA GROUP LTD., LALI MEDIA LIMITED
and MATENI TAPUELUELU
PO’OI POHIVA
‘AKILISI POHIVA and others
Plaintiffs

AND:

THE KINGDOM OF TONGA
Defendant

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Mr. Harrison and Mr. Tu’utafaiva for plaintiffs/respondents
Mr. Radich and Mr. Kefu for defendant/applicant.

Hearing in Chambers: 14 June 2004.
Ruling: 21 June 2004.

RULING

A sequence of events in the early months of 2003 effectively banned the importation into the Kingdom of the Taimi ‘o Tonga newspaper. Court challenges in April and May 2003, (Cases CV 124, 219 and 228 of 2003) resulted in the bans being lifted. The Court of Appeal upheld the decisions in those cases in July of the same year. 

Later in 2003, the Legislative Assembly passed three statutes relevant to the same issues: the Act of Constitution of Tonga (Amendment) Act, 2003, which amended clause 7 of the Constitution and added a new clause 103A, the Media Operators Act, 2003, and the Newspaper Act, 2003. It is not necessary to set out the details of those acts but, using powers under the Newspaper Act, the authorities refused to grant a licence for 2004 to the second plaintiffs in relation to the Taimi and to the third plaintiff in relation to another newspaper, Kele’a, of which he was, then, the editor. Subsequently, following the appointment of another editor, the Kele’a has been granted a licence.

The first plaintiff was arrested on 12 February 2004 at Fua’amotu Airport and charged with an offence contrary to section 10(1) of the Newspaper Act. He has been committed to the Supreme Court for trial. 

This action is an application by way of judicial review for declarations that the amendment of clause 7, the addition of clause 103A, the Media Operators Act and the Newspaper Act are each separately ultra vires, invalid and of no lawful effect. 

The fourth plaintiffs are described as "’Akilisi Pohiva together with the one hundred and seventy one citizens, organizations and businesses of the Kingdom of Tonga whose names are set out in the schedule to this statement of claim". That list includes People’s Representatives (of whom the named ‘Akilisi Pohiva is one), religious leaders, district and town officers, non-government and media organizations and citizens.

On 10 May 2004 I granted leave to the plaintiffs to apply for judicial review and adjourned the application by the plaintiffs and without opposition by the defendant I ordered:

That the plaintiffs have leave to read as evidence in these proceedings the affidavits from the previous proceedings in this court in cases numbers CV 124/03, CV 219/03 and CV 228/03 of the deponents listed in the application.

That the defendant shall submit a list of affidavits from the same previous proceedings they wish to be read as evidence in these proceedings within 28 days.

A defence has been filed maintaining that the statutes were validly enacted and, by application dated 28 May 2004, the defendant now applies for orders:

Varying or revoking orders 1 and 2 of Ward CJ dated 13 May 2004.

Dismissing the fourth plaintiffs from the proceeding.

That discovery and inspection of documents is not necessary in this proceeding.

That the evidence in this proceeding be given by affidavit.

Providing a timetable for the filing of affidavits and for dealing with any further interlocutory matters.

It is these applications which are now before the court and the court has been greatly assisted by the manner in which counsel have prepared and presented their submissions.

1. Variation of the orders of 13 May 2004.

There is no challenge to the fact that the court has the power to vary or revoke an interlocutory order.

The defendant objects to the inclusion of the affidavits from the previous proceedings on the ground that they are not relevant to the present proceedings and, therefore, ought not to constitute evidence in these proceedings. 

The plaintiffs suggest that this is more than simply an application to revoke an earlier order. It is in truth an attempt to obtain a ruling from the court on the relevance of evidence which the plaintiffs would seek to adduce in support of its case. Part of the basis of the claim that the statutes were invalid is that they were passed for an improper purpose and in breach of the constitution. 

Mr. Radich contends that is not the purpose of his application. He accepts that improper purpose is a ground for judicial review but this case does not challenge the decision to refuse licences in which it might have been relevant. He suggests that it is not a proper or relevant basis for a challenge to the purpose of a statute or for the determination of questions of Parliamentary sovereignty.

I appreciate his concern. This case raises important issues but it will not be helped if they are obscured by the inclusion or irrelevant evidence of the history of these actions. However, I do not consider the admissibility of evidence is a matter for me to decide at this stage. I bear in mind that I shall not be the trial judge but, even if I had been, I would rarely consider it appropriate to make an order excluding evidence at this stage and would only do so in the clearest case.

The facts to which those earlier matters relate are set out in paragraphs 8 – 24 of the claim. The defence has simply declined to plead to those paragraphs on the grounds that they deal with matters that precede and are unrelated to the questions in issue in this proceeding and have previously been considered and ruled upon by the Court of Appeal. Whether those objections are well grounded is a matter the trial judge will be able to decide and I am far from satisfied that the fact the defence pleads their irrelevance is sufficient ground for me to determine that point at this stage. The trial judge will be in a much better position to decide and, as the evidence is in the form of affidavits, the trial judge will no doubt be able to hear further submissions, if he wishes, at the commencement of the court hearing.

The application for an revoking paragraphs 1 and 2 of my order of 13 May 2004 is refused and the question of their relevance is left for the trial judge.

2. The standing of the fourth defendants.

There is no challenge to the standing of the first, second and third plaintiffs. The defence objection to the inclusion of the fourth plaintiffs is that they do not have sufficient interest and that, in any event, the inclusion of multiple parties is a step with wide implications and something that has been frowned on in other jurisdictions.

Mr. Harrison contends that the question of sufficient interest has already been decided when the court granted leave to seek judicial review. I do not accept that is the case. Clearly, when the court gives leave at the ex parte stage, it has formed a preliminary view, inter alia, on the locus of the applicants. However, that is a provisional finding and is, in the words of Lord Fraser in Inland Revenue v National Federation [1982] AC 617, "subject to revisal later".

I am asked to reconsider that question at this point and whether their inclusion has any real purpose. On the latter point, Mr. Radich reminds the court that the same counsel represents all the plaintiffs and the remedies sought are the same. What purpose, therefore, will be achieved by their presence? It appears to be correct that they will not be submitting evidence other than that produced by the plaintiffs as a whole and they will not presumably all be present for the hearing. Even any costs order is unlikely to be extended to them in the event of success in the action although their position in respect of the costs of the defendant in the event that the plaintiffs do not succeed may affect them more directly. It may be that some form of representative action may have achieved the same purpose but that is not a matter for the court to decide.

Where a plaintiff is not directly affected by the challenged act, it will be a very rare case where the court would find he had sufficient locus. However, it is question of fact and law. In a case such as this which may involve important constitutional issues relating directly to individual freedoms, it can be argued, as Mr. Harrison had done, that every person who is subject to the Constitution must have sufficient locus to challenge an act which removes or restricts freedoms guaranteed by that Constitution. Unqualified removal of a constitutional freedom has such a universal effect, it is hard to see how any one individual can be seen to be more affected than another. In many cases, the removal so equally affects every citizen that it can be argued that no one person can claim to be more affected than any other. In those cases, the determination of locus must be construed widely if it is ever to be possible to challenge the issue in the courts.

I have strong reservations about the practical effect of allowing multiple parties but, in terms of locus, I am not persuaded that my original view should be revised at this stage. The final decision will have to be made at the trial when the court can ascertain the actual position in terms of both the evidence and the law.

I decline to make the order sought to dismiss the fourth plaintiffs from the action.

The remaining applications are not subject to dispute.

3. Discovery.

It is clear that there should be discovery and inspection by both sides. However, I see no purpose in ordering discovery against the fourth plaintiffs and I do not do so. This is a case that should be heard as soon as possible and I have set a timetable which makes it possible to hear the action, as has been agreed with counsel, on 30 August 2004. In those circumstances I order that there shall be discovery within 21 days of this order.

4. Affidavits.

Counsel agree that, subject to cross-examination, the evidence shall be by affidavit. I order that the plaintiffs shall file any further affidavits within 14 days following discovery and inspection and the defendants any affidavits within 14 days of that. Notice of requirement to cross-examine shall be filed no later than 13 August 2004.

5. Timetable.

That effectively deals with the timetable. I note Mr. Harrison’s agreement to a date later than originally agreed was made with considerable concern that the matter should not be further delayed by interlocutory applications. I hope that will not occur and I have little doubt my successor in this case will be aware of that concern and take a robust approach to any further application.

As the issues have largely been left to the trial judge, I leave determination of the costs of these applications to the trial judge also.

NUKU’ALOFA: 21 JUNE, 2004.

CHIEF JUSTICE