Tutone v Kingdom of Tonga [2005] TOLC 1; LA 012 2005 (13 August 2005)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

CASE NO LA 12/05

FINAU TUTONE
Chairman of the Interim Committee of
Civil Servants on Stop Work
Plaintiff

V

KINGDOM of TONGA
Sued in respect of the Prime Minister and Cabinet,
Ministry of Lands and Ministry of Police
Defendant

BEFORE HON CHIEF JUSTICE WEBSTER

HAVING HEARD Counsel;

IT IS ORDERED THAT:

1. The Police and servants and agents of the Government of Tonga are hereby ordered to refrain from removing the Plaintiff, members of the Public Service Association, civil servants and the public from Pangai Si’i.
   
2. This interlocutory injunction is granted on condition that (a) that use of Pangai Si’i is peaceable and without disorder; and (b) especially during working hours noise is kept to a reasonable volume.
   
3. This interlocutory injunction will continue to Monday 5 September, with leave to either party to apply for its variation.
   
4. The Defendant is allowed to 2 September to file a statement of defence.
   

NUKU’ALOFA 13 August 2005

CHIEF JUSTICE

Reasons

Reasons given orally in open Court:

THIS IS A SLIGHTLY EXPANDED VERSION OF THE REASONS GIVEN ORALLY IN COURT:

Because this is an important case I considered it important to give this decision in open Court after I had heard both Counsel in Chambers.

This is a decision on the Plaintiff’s application for an interlocutory injunction to restrain the Police and other officers and agents of the Government of Tonga from removing the Plaintiff and other members of the Public Servants Association from Pangai Si’i.

It is an important matter of public concern and I think it important to explain my reasons briefly.

First, I wish to make 2 things clear:

1) This is not a decision about the rights and wrongs of the civil service strike;

2) It is not the final decision on whether the Cabinet was entitled to issue the order to clear the Public Servants Association from Pangai Si’i.

It is simply the legal step of holding the position as it was before the Cabinet order was made, so that the legal issues involved can be considered calmly in Court.

Following the legal authorities (American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] 1 All ER 504 (HL) and others set out in Flyniu Airlines Ltd v Faletau & Kingdom of Tonga [2004] TOSC 40, 20 August 2004), I found that there is a serious issue to be tried, particularly in relation to whether or not Pangai Si’i is part of the Royal Estate and whether the Cabinet was entitled to issue the order in relation to Pangai Si’i.

I also found that damages would not in the special circumstances of this case adequately compensate the Plaintiff and the Public Servants Association if the injunction was not granted.

This is particularly so in this case where, in the order complained of, the Cabinet made a definite linkage between the civil service strike and civil servants returning to work and their stopping holding meetings at Pangai Si’i. It is thus likely that the Constitutional rights under clause 8 of the Constitution for the Plaintiff and the Public Servants Association to hold meetings could be infringed.

Taking all that into account and also mindful of the importance of preserving the public peace in the present situation, I found that the balance of convenience lies in allowing the traditional use of Pangai Si’i, in this case by the Plaintiff and the Public Servants Association, to continue, especially as the Government did not object to such use for 2 – 3 weeks at the start of the strike.

I thus grant the injunction as follows:

The Police and servants and agents of the Government of Tonga are hereby ordered to refrain from removing the Plaintiff, members of the Public Service Association, civil servants and the public from Pangai Si’i.

Counsel have agreed that I should do so up to 5 September, which will allow time for of the legal issues to be investigated. I grant the injunction on 2 conditions: (a) that use of Pangai Si’i is peaceable and without disorder; and (b) especially during working hours, noise is kept to a reasonable volume.

Finally, I stress that this decision is not to be taken as a meaning any disrespect to His Majesty, as Pangai Si’i may be part of the Royal Estate; nor to his Majesty’s Cabinet, on the validity of whose decision I have not taken any concluded view. This decision is simply taken in furtherance of the Court’s duty to respect legal authorities and the Constitution.

R M Webster MBE
Chief Justice