Fonua v Tonga Communications Corporation Ltd [2002] TOSC 9; C 0692 2001 (28 February 2002)

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

C.692/01

BETWEEN:

SIOSAIA H. FONUA
Plaintiff;

AND:

TONGA COMMUNICATIONS CORPORATION
Defendant

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Mr Niu for plaintiff
Mr Tu'utafaiva for defendant

Hearing in chambers: 19 February 2002
Ruling: 28 February 2002.

RULING

The plaintiff is seeking a total of $516,000.00 damages arising from salary he would have earned and pension to which he would have been entitled if he had not been forced, as he claims, to resign from his position as Chief Engineer of the defendant corporation.

The defendant applies to strike out the action on the alternative grounds that it discloses no reasonable cause of action and that it is an abuse of the process of the court because of delay and because the claim should have been brought by judicial review.

No reasonable cause of action.

By Order 8 rule 6 (2), the first ground must be decided on the statement of claim alone. Mr Tu'utafaiva points out correctly that despite a lengthy and detailed statement of claim there is no specific ground pleaded. The relief sought in the prayer simply seeks damages in the sum already mentioned, interest and costs.

Mr Niu, for the plaintiff in his response to the application did not specifically state the cause of action but referred to the allegation that the plaintiff was wrongly forced to resign.

Order 8 rule 6 (1) (i) states:

"(1) The court may at any time order that any pleading or part thereof be struck out if

(i) It discloses no reasonable cause of action or defence as the case may be"

The test for the court is not whether a sufficient cause of action is stated in the pleading but whether it is disclosed. In this case the statement of claim does disclose a possible claim for wrongful dismissal. That is sufficient to avoid the application under rule 6(1)(i).

The first ground fails.

Abuse of process

The suggestion of delay in this case is effectively part of the second limb; namely, that it should have been brought by way of judicial review. If that second argument is correct, then the delay is clearly inordinate and has not been justified in any way but otherwise it cannot be sufficient to make the proceedings abusive.

Mt Tu'utafaiva points out that the suggestion of wrongful dismissal is founded solely on the contents of paragraph 14:

"14. The decision of the Committee was improper and unlawful in that:

(a) There had not been any charge or notice of any complaint that the Plaintiff be dismissed for any misconduct or improper performance of his duties;

(b) There was no reasonable opportunity given to the plaintiff to be heard and there was no fair hearing of any such charge or complaint against him;

(c) The Committee was biased against him."

Those are plainly more appropriate to a case of judicial review. There is not, he suggests, any other ground for the claim.

Mr Niu counters that the terms of Order 27 makes it clear that the remedy only applies to an inferior court, tribunal or public body. It is a more restricted rule that the English Order 53 and many of the authorities under the English Order do not apply here. He also points out that the remedies under our Order are also more limited and his claim is for damages not for any remedy under Order 27.

I do not accept that our Order is any more limited than Order 53. The court in Tonga has consistently followed the English authorities both before and after the present Order 53 was promulgated.

I am satisfied that the Tonga Communications Corporation is a public body which may be susceptible to judicial review. However, I do not consider that the terms of paragraph 14 necessarily limit the plaintiff to seeking a remedy by judicial review. It would appear, and I use those words because it is far from clear, that the claim is based on a contractual relationship between the parties. I accept that is not, in itself ground for refusing judicial review but, in this case, I do not consider it is a case that would be is subject solely to review. Recent authorities have extended the principles of natural justice to wrongful dismissal cases and the terms of paragraph 14 may be relevant in this case also.

In the circumstances the application is refused.

However, I have every sympathy with the defendant. It is required to defend a claim that is unclear and unspecific.

I order that the plaintiff shall file within 28 days an amended statement of claim setting out clearly the cause of action and the basis for it. If it is not filed, I shall strike the action out.

Although I have refused the application, I regard this as one of the exceptional cases where the losing party should still have its costs and I order that the plaintiff shall pay the defendant's costs arising from this application in any event.

NUKU'ALOFA: 28^th February, 2002.

CHIEF JUSTICE