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Vaioleti v Tonga Development Bank [1999] TongaLawRp 12; [1999] Tonga LR 57 (7 April 1999)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku’alofa

C 179/99

Vaioleti

v

Tonga Development Bank

Ward CJ
18 March 1999; 7 April 1999

Practice and procedure — leave to apply for judicial review of dismissal — employment governed by contract — leave refused

The applicant was employed by the respondent Bank in May 1996 as a probation loans officer and, by December 1998, had risen to senior loans officer. In that month she was dismissed. She sought leave to apply for judicial review of the decision to dismiss her. The relief she sought was a declaration that her dismissal was unlawful, certiorari to quash the decision and mandamus to reinstate her. She alleged in her affidavit in support that the Bank was a statutory body and that the dismissal did not follow proper procedure, it was unfair and unlawful and a breach of natural justice.

Held:

1. In determining whether a case was appropriate for judicial review, the court must consider whether it was an action that required the enforcement of private or public law rights.

2. In order to qualify for judicial review, there must be some statutory restraint on the exercise by the public body of its powers of dismissal but, even in such cases, judicial review may be refused if the dismissal was rooted in contract and not in the exercise of a statutory power per se, and, even where it was rooted in statute, the statute must create a restriction on the public body in its capacity as a public body and not as an employer generally.

3. The Bank was a statutory body but there was nothing to suggest the applicant’s employment was governed by anything other than contract and her remedy lay in a claim in private law. Leave was refused.

Cases considered:

Malloch v Aberdeen Corporation [1971] 1 WLR 1578; [1971] 2 All ER 1278

R v Derbyshire County Council ex p Noble [1990] ICR 808; [1990] 1 RLR 332 (CA)

R v East Berkshire Health Authority, ex parte Walsh [1985] QB 152 (CA)

Ridge v Baldwin [1964] AC 40; [1963] 2 All ER 66

Counsel for applicant: Mr Fifita
Counsel for respondent: Mrs Vaihu

Judgment

The applicant was employed by the respondent Bank in May 1996 as a probation loans officer and, by December 1998, had risen to senior loans officer. In that month she was dismissed.