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Kingdom of Tonga v Tapueluelu [2009] TongaLawRp 9; [2009] Tonga LR 86 (25 February 2009)

IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku'alofa

AC 10/2008

Kingdom of Tonga

v

Palu aka Tapueluelu, Palu aka Tapueluelu v Kingdom of Tonga

Burchett, Salmon, and Moore JJ
15 July 2008; 25 February 2009

Employment law – wrongful dismissal – Superintendent of Prisons – appeal and cross appeal

The respondent/cross-appellant was dismissed from the position of Superintendent of Prisons on 11 October 2001. He claimed he had been wrongfully dismissed. The appellant/cross-respondent appealed against the judge's failure to strike out the remainder of the statement of claim; while the cross-appeal was against the order to strike out its central claim that the cross-appellant was wrongfully dismissed.

Held:

1. The Court of Appeal found that after the examination of the issues there was no ground for the exercise of a discretion to permit a reopening of the issue where it was rightly decided that the respondent/cross-appellant had propounded a case, based ultimately on the denial to him of natural justice, which simply could not be stigmatised as bound to fail. The cross-appeal succeeded.

2. The appeal treated the issue of the suspension and the claimed right to a pension as subsidiary to the respondent/cross-appellant's case for wrongful dismissal. Now that the Court decided to allow the cross-appeal, the appeal should be dismissed.

3. The respondent/cross-appellant had an arguable case in respect of the period of suspension and the backdating of his dismissal, whether or not these were separate issues, or should be seen as aspects of his claim for damages for wrongful dismissal.

4. The following orders were made: that the appeal be dismissed and the cross-appeal be allowed; that the order made below striking out the respondent/cross-appellant's claim for wrongful dismissal be set aside, and in lieu thereof it be ordered that the application to strike out the statement of claim be dismissed with costs; that the appellant/cross-respondent pay the respondent/cross-appellant's costs of the appeal and cross-appeal.

Cases considered:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Annetts v McCann (1990) 170 CLR 596

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1

'Asitomani v Superintendent Of Prisons [2003] Tonga LR 84

Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44

Clairs Keeley v Treacy [2004] WASCA 277

Geddes v Magrath (1933) 50 CLR 520

Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648

Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44