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Vunipola v Tongatapu Rugby Football Sub-Union [2023] TOCA 22; AC 28 of 2022 (5 October 2023)

IN THE COURT OF APPEAL OF TONGA

CIVIL JURISDICTION

NUKU’ALOFA REGISTRY


AC 28 of 2022

[CV 8 of 2021]


BETWEEN

FE’AO VUNIPOLA Appellant


AND

(1) TONGATAPU RUGBY FOOTBALL SUB-UNION

(2) MANU MATAELE

(3) ‘AISEA ‘AHOLELEI

(4) MALUAFISI FALEKAONO Respondents


___________________________________________________________________________

JUDGMENT OF THE COURT
___________________________________________________________________________


Court: Randerson J

Harrison J

Heath J


Counsel: Mr Fe’ao Vunipola, in person, Appellant (by AVL)
W Edwards for Respondents


Hearing: 28 September 2023


Judgment: 5 October 2023


The appeal

[1] Mr Fe’ao Vunipola appeals against a judgment given in the Supreme Court on 25 October 2022, by which Lord Chief Justice Whitten dismissed his claims against the Tongatapu Rugby Football Sub-Union (the Sub-Union), Mr Manu Mataele, Mr ‘Aisea ‘Aholelei and Mr Maluafisi Falekaono (collectively, the Respondents).[1]
[2] The Supreme Court proceeding (the proceeding) challenged the constitutionality of an Annual General Meeting of the Sub-Union held on 18 December 2019 (the 2019 AGM). Orders were sought, both to declare the meeting unconstitutional and to set aside any decisions made at it. In addition, Mr Vunipola asked the Court to make interim orders removing Mr Mataele, Mr ‘Aholelei and Mr Falekaono from offices to which they were elected at an earlier Annual General Meeting held in 2016 (the 2016 AGM), on the grounds that they were not elected pursuant to the terms of the Sub-Union’s Constitution (the Constitution) and were therefore ineligible to cast votes at the 2019 AGM.
[3] An interim order was also sought directing the Sub-Union’s Committee to call another “Annual General Meeting to conduct a new election to have [its] Constitution regularised and society incorporated ... before the [Tonga Rugby Union] AGM in May [2023]”. All relief was sought in an Amended Statement of Claim dated 14 April 2021 that was filed in consequence of a ruling given by the Lord Chief Justice on 1 April 2021.
[4] At the time that Mr Vunipola commenced the proceeding, he held office as Vice President of the Tonga Rugby Football Union (Tonga Rugby Union) having been elected at a Special General Meeting held on 5 December 2017. His co-plaintiff in the Supreme Court, Mr Mosese Huni, was a representative of the Hihifo Rugby Club. He was present at the 2019 AGM on its behalf. While Mr Huni supported Mr Vunipola’s claims in the Supreme Court, he has not joined Mr Vunipola in bringing this appeal.
[5] Initially, Mr Vunipola’s appeal was directed to the way in which the Lord Chief Justice is said to have conducted the hearing and explained his reasoning and two of the substantive claims that the Lord Chief Justice dismissed. The substantive issues involved questions of interpretation and application of the Constitution (the second claim) and whether orders should be made on an interim basis to remove Mr Mataele, Mr ‘Aholelei and Mr Falekaono from the “Board of Directors” of the Sub-Union (the fifth claim).
[6] Mr William Edwards appeared as counsel for the Respondents to oppose the appeal. On the issues involving bias and the like, Mr Edwards contends that there is no factual foundation on which those grounds of appeal could be allowed. Positively, he asserts that the Lord Chief Justice conducted the hearing in an impartial manner. Mr Edwards also refuted any suggestion that deliberately dishonest evidence had been given by any witness called by the Respondents. So far as the substantive issues are concerned, he supports the judgment for the reasons given by Whitten LCJ.

The relevant facts in outline

[7] The Constitution produced in evidence is described as “Revised Constitution 2013”, which was endorsed by the President and Secretary of the Sub-Union at a general meeting held on 18 June 2013.[2] As at that date, a society with the name “Tongatapu Rugby Football Sub-Union Incorporated” had not been incorporated under the Incorporated Societies Act 1988 (the Act). However, the Registrar of Incorporated Societies, on 29 November 2007, issued a certificate of incorporation for an entity called “Komioti ‘Akapulu ‘Iunioni ‘Ae Vahe Tongatapu Incorporated”. One of the issues is whether that certificate evidenced incorporation of the Sub-Union under a Tongan translation of its name, or was a different society.
[8] According to the “Revised Constitution” the Sub-Union was established, “to promote, foster and control the game of rugby football in Tongatapu”.[3] The Sub-Union was to be incorporated under the Act.[4] It was “an affiliated Sub-Union and member of the Tonga Rugby Union”. One of its roles was to provide representatives for consultation or as delegates for the International Rugby Board, and other similar bodies.[5] For that reason, the Sub-Union was to “comply with the [Tonga Rugby] Union Constitution, particularly the Code of Conduct and the Disciplinary Procedures”.[6] In the event of conflict, the Constitution of the Tonga Rugby Union was to prevail over that of the Sub-Union, with the laws of the Kingdom of Tonga governing the affairs of each.[7]
[9] Clause 11 of the Constitution requires an annual general meeting of the Sub-Union to be held “within two months from the end of the Financial Year”.[8] The financial year of the Sub-Union runs from 1 January to 31 December in each year.[9] Formal steps must be taken by the Secretary of the Sub-Union both to call an annual general meeting and to provide its agenda. While clause 11(d) of the Constitution expressly provides that only “a full member of the Sub-Union may submit a motion to be considered in the AGM, and such motion shall be delivered to the Secretary 21 days before the date of the AGM”, clause 11(f) expressly provides that no AGM “shall be deemed to be invalid” based on that ground, and others relating to the provision of notice of and an agenda for the annual general meeting.[10]

Analysis of appeal points

(a) Introductory comments

[12] As originally presented, the appeal raised process complaints about the conduct of the trial Judge and the admission of allegedly false evidence (the process complaints) and substantive challenges to the interpretation of the Constitution (the substantive issues). During the course of the hearing, we explored with Mr Vunipola whether his concerns about the constitutionality of the 2019 AGM and the resolutions passed at that meeting would be overcome at the next annual general meeting, which would be a quad-annual meeting of the type envisaged by the Constitution to elect officers. Mr Vunipola indicated that his concerns about the way in which the 2019 AGM was conducted and its consequences could be met by new elections at the next quad-annual meeting. When replying to Mr Edwards, Mr Vunipola also accepted that it would be unnecessary to consider the constitutionality of the 2019 AGM.
[13] We asked Mr Edwards whether he could assure us that the next quad-annual AGM would be held in the period between December 2023 and February 2024. Mr Edwards did not have instructions to answer that question at the hearing, but indicated he considered it was likely. As directed at the hearing, Mr Edwards has taken instructions from his clients and filed a memorandum on 29 September 2023. The position is not as simple as we assumed at the hearing. In his memorandum, Mr Edwards stated:
  1. ... World Rugby has requested the Tonga Rugby Football Union Incorporated amend its Constitution and that the amendments be tabled at the Annual General Meeting for the Tonga Rugby Football Union Incorporated before the end of the current year. Once that meeting is completed, the Tongatapu Rugby Football Sub-Union will be required to call a Special Meeting to endorse the amendments, if any, before [its] Annual General Meeting is called.
  2. Once those requirements are carried out, the Respondents have provided, through their legal counsel, the assurance that they will call and hold the Annual General Meeting for the Tongatapu Rugby Football Sub-Union and will hold elections of officers according to the Constitution. The Respondents accept that they have a duty according to the Constitution, ... to call the Annual General Meeting and to hold elections according to the Constitution where they have provided the assurance that their duty to call the Annual General Meeting and hold election of officers will be carried out.

[14] Although the form of Mr Edwards’ assurance is slightly different to that discussed at the hearing, we consider that the Sub-Union has given comfort that it will call an AGM at the earliest possible time. The requirements of World Rugby must clearly be taken into account in determining the appropriate date for officers for the Sub-Union to be elected.
[15] Mr Vunipola and Mr Edwards agreed that this Court should settle the question whether there was one or two societies, so that it was clear under what Constitution the next AGM would be held.

(b) The process issues

[17] What is the role of a Judge? The fundamental obligation is to determine a disputed case on the basis of admissible evidence and with an impartial mind. It is axiomatic, in any contested Court proceeding, that one party will lose, and in most cases have findings made against them, both as to legal arguments advanced and the evidence that it adduces. So long as the Judge remains impartial, it is for him or her to decide what evidence should be accepted or rejected. While a disappointed litigant will often continue to dispute the Judge’s factual findings, the fact that his or her evidence was rejected is not, of itself, evidence of bias. It is evidence that the Judge was performing his or her judicial role.
[18] That fundamental role is the model against which the test for recusal of a Judge has been formulated. In ‘Atenisi Institute Incorporated v Tonga National Qualifications and Accreditation Board,[17] this Court approved the approach adopted in both Australia and New Zealand, with particular reference to the decision of the High Court of Australia in Webb v R,[18] the Supreme Court of New Zealand in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd[19] and the Court of Appeal of New Zealand in Muir v Commissioner of Inland Revenue.[20] In ‘Atenisi Institute, this Court referred with approval to the test articulated in Muir. Delivering the judgment of the Court of Appeal in Muir, Hammond J said:

[62] In our view, the correct inquiry is a two-stage one. First, it is necessary to establish the actual circumstances which have a direct bearing on a suggestion that the Judge was or may be seen to be biased. This factual inquiry should be rigorous, in the sense that complainants cannot lightly throw the “bias” ball in the air. The second inquiry is to then ask whether those circumstances as established might lead a fair-minded lay observer to reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the instant case. This standard emphasises to the challenged Judge that a belief in her own purity will not do; she must consider how others would view her conduct.

(Footnotes omitted)

[19] In Lavulavu v R,[21] this Court explained the need for any allegation of judicial bias to be subjected to rigorous analysis. It did so by reference to a judgment of Lord Chief Justice Paulsen, in Fa-oliu v Public Service Commission.[22] The Court of Appeal said:[23]

[68] We turn now to consider whether these aspects of the trial process establish either a real possibility that the decision maker was biased or that the conduct of the trial overall was unfair. In Cox v Attorney General this Court adopted the following passage from the judgment of former Lord Chief Justice Paulsen in Fa-oliu v Public Service Commission as helpfully elaborating the common law test for apparent bias.

Whether or not a decision maker is biased does not depend upon that decision maker’s personal opinion but is to be assessed objectively. I adopt as the test that a judge/decision maker is disqualified if the circumstances are such that a fair-minded lay observer might reasonably apprehend that the judge/decision maker might not bring an impartial mind to the resolution of the question that the judge or decision maker has to decide (Ebner v Official Trustee in Bankruptcy; Porter v Magill, O’Neill No.2 v Her Majesty’s Advocate, Saxmere Co Ltd v Wool Board Disestablishment Co Ltd and Joseph (supra) at 25.5(2)). It is the possibility not the probability of bias that is important. But the existence of bias is not to be lightly inferred. The functions of a decision maker cannot depend upon the suspicions of the ultra-sensitive, paranoid or cynical person (S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd). For this reason the examination of an allegation of bias must be rigorous.

(Footnotes omitted)

[20] To support his allegations of judicial bias, Mr Vunipola has referred to extracts from the transcript of evidence in the Supreme Court and to statements made in the Lord Chief Justice’s reasons for judgment. Many of the interventions recorded in the transcript do no more than ensure that only admissible evidence was before the Court. For example, Mr Vunipola questioned witnesses about their understanding of the meaning of the Constitution. Similar evidence was led in chief in the form of witness statements and affidavits. While we acknowledge that some allowance should properly have been given to Mr Vunipola, as a lay litigant, it remained necessary for the Lord Chief Justice to remind him on a number of occasions of the difference between facts (what a witness saw and heard) and legal submissions (when a witness was asked, for example, to agree to a particular interpretation of the Constitution). The former was admissible as evidence; the latter a matter of submission, to be put to the Court when Mr Vunipola pulled together the threads of his case, in closing to the Judge.
[21] In terms of the Muir test, the first question is whether there is any evidence to support an allegation of bias. The second is whether any established circumstances might lead a fair-minded lay observer to reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the relevant case. The “fair-minded lay observer” is required to consider the second question objectively.[24]
[22] Many of the complaints made about the admissibility or otherwise of evidence arise out of a natural misunderstanding on the part of a lay litigant of the rules of evidence generally. The allegations that witnesses called on behalf of the Respondents committed perjury or otherwise gave unintentionally false evidence is speculative. The fact that the Judge accepted their evidence, contrary to the interests of Mr Vunipola, does not demonstrate that he relied on false evidence. There is no credible narrative to support an allegation of judicial bias. We see no evidence of the Judge interposing himself in any way that was designed to harm Mr Vunipola’s case. The first stage of the Muir test has not been met.
[23] As to the second stage of Muir, no “fair minded lay observer” could have formed an objective view, on the basis of the evidence and reasons for judgment to which Mr Vunipola has referred, that the Lord Chief Justice conducted the hearing in a partial fashion.
[24] While, given the length of the hearing and Mr Vunipola’s lack of knowledge of legal procedure, a sense of frustration on the part of the Judge is evident (both from his interventions as recorded in the transcript and in his reasons for judgment), there is nothing that goes close to suggesting the Judge had a closed mind, endeavoured in some way to assist Mr Vunipola’s opponents or acted in any other way to undermine Mr Vunipola’s case.
[25] Without intending any disrespect to Mr Vunipola, who has genuine (but, in our view, misplaced) concerns about the outcome of the proceeding, it is necessary for us to comment more generally on the increasing frequency with which disappointed litigants raising questions of judicial bias in an endeavour to maintain their belief in the correctness of a cause that has been found to lack merit. Such questions are generally directed at the unfair way in which they perceive a Judge has treated them and alleged fabrication on the part of witnesses called by opponents. Only rarely are allegations of that type successful. In the vast majority of cases, Judges honour their judicial oath to do right to all people who come before them “without fear or favour, affection or ill-will”.
[26] Unsubstantiated claims of that type (particularly those of judicial bias) have the potential to undermine trust in judicial institutions and the rule of law. The courts cannot allow unfounded allegations of bias to be made against judicial officers in circumstances where the evidence establishes no more than that the Judge was performing his or her judicial role in making findings of fact and determining points of law; in other words, acting impartially in deciding what evidence to accept or reject, and determining the dispute in accordance with the judicial oath.
[27] There is no merit in Mr Vunipola’s allegations of bias. We exonerate the Lord Chief Justice from any claim of bias. This aspect of the appeal fails.

(c) The single society issue?

[28] As previously indicated,[25] although the Sub-Union was formed in or about 2007, no society in its name had been incorporated by the time of the 2019 AGM. However, a society called Komiti ‘Akapulu ‘Iunioni ‘Ae Vahe Tongatapu Incorporated had been incorporated on 29 November 2007. Mr Vunipola suggested that the incorporated society was different from the Sub-Union. While the Constitution for the Sub-Union was put in evidence, no such document was produced in respect of Komiti ‘Akapulu ‘Iunioni ‘Ae Vahe Tongatapu Incorporated. The question is whether there is one society or two. Resolution of this point is important, so that participants at the next annual general meeting of the Sub-Union are clear about the rules that apply to the election of office bearers.
[29] In producing the certificate of incorporation for Komiti ‘Akapulu ‘Iunioni ‘Ae Vahe Tongatapu Incorporated, Mr Mataele gave evidence that, while its name did not translate exactly to that of the Sub-Union, the first three words meant “Rugby Union Committee”. The balance translated as “for the district or area of Tongatapu”. Mr Vunipola does not appear to have challenged that translation. Mr Mataele deposed that there was no direct Tongan language equivalent of the term “Sub-Union” and that “Vahe Tongatapu” captured the essence of the term “Sub-Union”. He considered that the problem had arisen through a “translation issue”.
[30] Messrs Mataele and Siaosi Faka’osi gave evidence that, on 20 April 2021, a meeting of the Sub-Union was held, and those present resolved to correct the name on the certificate of incorporation to reflect the English language name, “Tonga Rugby Football Sub-Union Incorporated”. On 22 September 2021, the Registrar of Incorporated Societies issued a certificate of incorporation in respect of the society registered in 2007 to change the Tongan name to the English language name.
[31] In para 12 of the Amended Statement of Claim, in alleging that there were two distinct societies, Mr Vunipola pleaded:
  1. [The Sub-Union’s] Legal Status stated in Clause 2(i) of the Constitution ..., stipulated that it shall be incorporated under the Incorporated Societies Act 1988 (Cap. 28). In checking with the Ministry of Labour, Commerce and Industries prior to the [2019 AGM], it revealed it was never registered hence was an unincorporated society and an illegal entity.

[32] We have not been able to find any evidence to support Mr Vunipola’s contention that two distinct societies existed. In examining the evidence, we have considered the document dated 2016, headed “Tongatapu Rugby Union Tournament” (the Tournament Rules), which is an English translation of the original Tongan. The document states that the tournament was to be known as “Tongatapu’s Rugby Sub-Union Club Tournament”. It provides for the election of “Chief Officers of the Tournament to be nominated on a quad-annual basis”. They identify the need for certain officers to be nominated by premier clubs and voting by representatives of the clubs.

2.1 [The Tournament] shall be known as Tongatapu’s Rugby Sub-Union Club Tournament.

...

5.1 The way the rugby tournament of 2016 is organised and controlled is conducted by the Tongatapu Rugby Sub-Union pursuant to the Rules and Regulations of 2016 and [Tonga Rugby Union].

[34] We interpret the Tournament Rules as providing the basis on which the club tournament established by those rules would be conducted. Clause 2.1 must be interpreted in a manner that distinguishes the way in which the tournament is managed from the Sub-Union itself. Clause 5.1 reinforces that proposition, albeit limited to the 2016 tournament. It provides that the Sub-Union will organise, control and conduct the tournament. The election of “Chief Officers” of the “Tournament” distinguishes the Tournament Rules from the Constitution. There is nothing to link the Tournament Rules directly to the society originally incorporated as Komiti ‘Akapulu ‘Iunioni ‘Ae Vahe Tongatapu Incorporated.
[35] We are satisfied that the failure to register the Sub-Union in an English language name, was no more than a mistake. In fact, other mistakes have been made by parties to the litigation about the name of the Sub-Union. For example, the cover page to the Constitution reads: “Constitution of the Tongatapu Rugby Football Sub-Union Incorporated”, yet, clause 1 of the Constitution states that the Sub-Union “shall be called the Tongatapu Rugby Football Union Incorporated”. The 2021 certificate of incorporation uses the name Tongatapu Rugby Football Sub-Union Incorporated. The failure to follow clause 1 does not render the society illegal. It simply changes a name that was not set in concrete by the Constitution to one by which it has been known throughout its existence.
[36] In our combined experience in a number of jurisdictions, it is not unusual for slips of this type to occur in the context of constitutions that are drawn up to apply to a sporting body. The conduct of Mr Mataele and Mr Faka’osi can be readily explained by reference to an initial mistake in the incorporation of the society in a Tongan language name, rather than the intended English language name. We are satisfied that there is no factual foundation for Mr Vunipola’s allegation of fraudulent conduct on their behalf. We find that the society now renamed “Tongatapu Rugby Football Sub-Union Incorporated” is the only society.
[37] In our view, the Lord Chief Justice was plainly right to hold that there was one incorporated society, initially called “Komiti ‘Akapulu ‘Iunioni ‘Ae Vahe Tongatapu Incorporated”, now known as “Tongatapu Rugby Football Sub-Union Incorporated”, as a result of the change of name registered under the Act. Quad-annual meetings at which office bearers are elected should be held pursuant to the terms of its Constitution.[26]

Result

[38] The appeal is dismissed.
[39] As to costs, we are mindful that concessions made by Mr Vunipola at the hearing narrowed the scope of argument significantly.[27] Nevertheless, the Respondents were required to incur legal costs in preparing for the full range of issues raised by Mr Vunipola’s appeal. In those circumstances, we consider that Mr Vunipola should pay costs to the Respondents. If not agreed, those costs are to be taxed.

Postscript

[40] We add one final comment about the forum for this dispute. We note that clause 2(ii) of the Constitution provides for compliance with the “Disciplinary Procedures” of the Tonga Rugby Union. Further, clause 8(k) of the Constitution empowers the Executive Committee to hold enquiries into all matters, questions and disputes, which must be conducted in accordance with the Tonga Rugby Union’s “Disciplinary Procedures”. The term “Union” (which is used in clause 8(k)) is defined as the Tonga Rugby Union by clause 2(ii) of the Constitution.
[41] Although the point does not appear to have been taken before the Supreme Court, we indicate that the constitutional provisions to which we have referred could well have required disputes such as the present to be resolved under any domestic tribunal established by the Tonga Rugby Union. In the event that any further disputes arise, serious consideration will need to be given as to the forum in which contested issues might be resolved.

Randerson J


Harrison J


Heath J

[1] Vunipola v Tongatapu Rugby Football Sub-Union Incorporated [2022] TOSC 93.

[2] For present purposes, we infer that the “Revised Constitution” of 2013 was substantially the same as that in force when the Sub-Union was first established.
[3] Constitution, clause 3.
[4] Ibid, clause 2(i).

[5] Ibid, clause 5(a). In addition, the Sub-Union was, at all times, required to “attempt to comply fully with the rules and regulations of the International Rugby Board”. See also clause 2(v).
[6] Ibid, clause 2(ii).
[7] Ibid, clause 2(iii) and (iv).
[8] Ibid, clause 11(a).
[9] Ibid, clause 2(vi).
[10] Ibid, clause 11(f). Those provisions which are captured within that clause are clause 11(c), (d) and (e).
[11] Ibid, clause 7(i) and (ii).
[12] Ibid, clause 7(iii)(a) and (b).
[13] Ibid, clause 7(iii)(a).
[14] Ibid, clause 8(i).
[15] Ibid, clause 8(d)–(f).
[16] Ibid, clause 9.

[17] ‘Atenisi Institute Incorporated v Tonga National Qualifications and Accreditation Board [2023] TOCA 11 at para [12].
[18] Webb v R [1994] 181 CLR 41 (HCA).
[19] Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2010] 1 NZLR 35 (SC).
[20] Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 (CA).
[21] Lavulavu v R [2022] TOCA 22.
[22] Fa-oliu v Public Service Commission [2017] TOSC 32, at paras [44]–[47].
[23] Lavulavu v R [2022] TOCA 22, at para [68].
[24] Ibid, at para [62], set out at para [18] above.
[25] See para [7] above.
[26] By that, we mean the “Revised Constitution” of 2013.
[27] See paras [12]–[15] above.

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