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

CV NO 924/04

BETWEEN:

SEMISI PALU
Plaintiff

AND:

GOVERNMENT OF THE KINGDOM OF TONGA
Defendant

BEFORE THE HON JUSTICE THOMAS

Counsel: Mr Tu'utafaiva for Plaintiff and Miss Semiki for Defendant.

Submissions in Writing

Date of judgment: 11 May, 2005

JUDGMENT ON APPLICATION TO STRIKE OUT

The plaintiff on the 17th of December 2004 filed a claim for substantial damages against the defendant on the basis of a breach of contract of employment, the plaintiff having been employed as a prison officer by the prison service of the defendant from 1972, being appointed Superintendent of Prisons on the 10th of August 1992 and being suspended by direction of the then Minister of Police on the 22nd October 1998. On the face of it that suspension was a clear breach of Sections 15 and 21 of the Prisons Act (Cap.36). The plaintiff eventually faced 14 disciplinary charges being convicted on one charge and being fined $25.00. Various other reviews, petitions and procedures followed but on the 11th of October 2002 the Cabinet approved the recommendation of the Minister of Police for dismissal of the plaintiff backdated to the 11th of November 1998. That appears to be again on the face of it an ex post facto effort to legitimate the previously unlawful suspension. The plaintiff made various approaches by way of petition and letter to the Prime Minister and the defendant but without response and consequently issued these proceedings. The statement of claim taken at its face value establishes breaches of both express and implied conditions of employment.

The defendant did not file a statement of defence but filed the within application to strike out the claim of the plaintiff on the basis that it is an abuse of process. The crux of the application is that what the plaintiff is really trying to do is to attempt a judicial review of the administrative actions of the defendant. The defendant says that the claim for breach of contract is minimal and that since there is a three month time limit for filing judicial review applications then these proceedings are well out of time. On that basis they are an abuse of process.

There is an additional ground referring to the failure by the plaintiff to appeal his suspension in terms of the civil service regulations. However that is not supported in the submissions and it seems to me in any event that that is a matter for argument at any hearing and not a ground for dismissal should these proceedings continue.

Both counsel agreed that an oral argument was not required but that the ruling should be made on the basis of written submissions to be filed and council are thanked for their attending to the provision of those submissions in a timely fashion.

Miss Simiki referred the court to the appropriate principles while maintaining the grounds expressed in the application that the claim relates to legal challenges based on administrative or public law which should be dealt with by judicial review proceedings. The submission was made that the plaintiff is making a claim against elements of public law and is not seeking to enforce private rights. Miss Simiki referred to authorities quoted in the text of Judicial Review and Procedure, R J F Gordon (1985), paragraph 1-03. The commentary makes it clear that it is contrary to public policy and an abuse of process to allow a person to proceed by way of an ordinary action in order to establish that a public authority's decision had infringed rights entitled to protection under public law.

The defendant says that what the plaintiff is effectively doing here if you like is judicial review by the backdoor where the breach of contract alleged is only a small part of the claim. The defendant submitted that that is an abuse of process and these proceedings should be struck out.

On the other hand Mr Tu'utafaiva for the plaintiff reminded the court that for the purposes of this application the pleadings in the statement of claim are to be considered as being capable of proof by the plaintiff. In addition of course the discretion to strike out "must be sparingly exercised" and reference was made to the principles set out by Ford J in Cauchi v Air Fiji CV 440 2001, 1 February, 2005 in his reference to the New Zealand decision of South Pacific Manufacturing Co Ltd v New Zealand Security Consultancy and Investigation Limited [1992] 2 NZLR 232.

The plaintiff simply submits that this is not a claim relating to administrative or public law issues but is an enforcement of the private rights of the plaintiff in terms of his employment contract. The statement of claim pleads implied terms of the contract of employment and reference is made to the authority of Koloa v Helu CV 1315 1998, 29 October, 1999 which refers to the import of the rules of natural justice into an employment contract. There is also support in terms of principle in the decision of Justice Ford in 'Asitomani v Superintendent of Prison C 16 2001 where at page 4 His Honour states " .. the review procedure can be invoked only where some element of public law is involved and it is not an available remedy to a litigant seeking to enforce private rights only ... ".

The plaintiff therefore submits that the six claims for damages are all based on breach of contract. This is not an abuse of process and the application should be dismissed with costs.

In my view the plaintiffs position is correct particularly bearing in mind the presumption of proof of all the pleadings and the restricted right of exercise of this discretion to strike out. The heads of damages are simply delineating income and pension claims together with a claim for general damages. The real basis of the claim of the plaintiff is that his rights of natural justice were infringed in respect to both his suspension and dismissal and that accordingly the implied conditions of his contract of employment have been breached. There are no public law issues involved despite the claim relating to decisions of public officials such as the Minister of Police. On that basis the claim cannot be characterised as judicial review by the back door. It is not an abuse of process and the plaintiff is entitled to his day in court. The application is dismissed and the plaintiff is entitled to costs on this application to be agreed or taxed.

Ian Thomas
JUDGE

NUKU'ALOFA: 11 MAY 2005