Tu'ifua v Public Service Tribunal [2014] TOSC 14; CV 45 of 2013 (13 June 2014)

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

CV 45 of 2013

BETWEEN:

1. MISHKA TU'IFUA
2. LITILI 'OFANOA
3. SIMIONE SEFANAIA
4. FINAU TUTONE
5. TSUTOMU NAKAO
Plaintiffs

AND:

1. THE PUBLIC SERVICE TRIBUNAL
First Defendant

2. BUSBY KAUTOKE
Second Defendant

A. H. Waalkens K.C. for the Plaintiffs
Mrs P. Tupou for the First Defendant
Mrs K. L. Clark Q.C. with Mrs 'A. N. Taumoepeau S.C. for the Second
Defendant

DECISION

[1] On 8 August 2012 the Public Service Commission dismissed the Second Defendant from his employment as Chief Secretary and Secretary to Cabinet. He appealed to the Public Service Tribunal (the First Defendant) and on 21 March his appeal was allowed.

[2] On 24 June 2013 the Plaintiffs, as Chairperson and members of the Public Service Commission, obtained leave to move for judicial review of the Tribunal's decision. The grounds are set out in the Statement of Claim filed on 1 July 2013. As appears from paragraph 21 the Tribunal took the view that the purported termination of the Second Defendant's employment was invalid since it was made without the prior approval of Cabinet. The other grounds of appeal were not considered.

[3] A Statement of Defence was filed by the Second Defendant on 31 July 2013. In paragraph 22 he denied the Plaintiff's assertion that the approval of Cabinet was not required.

[4] On 4 October 2013 Mrs Taumoepeau filed the present application which seeks an order:

"That A.H. Waalkens is disqualified as Counsel for the Plaintiffs in this matter or in any matter before the courts of the Kingdom of Tonga".

Thirteen grounds were advanced in support of the application, together with an affidavit by the Second Defendant who deposed that he supported it.

[5] The principal submissions were that:

(a) It is improper for Mr Waalkens to appear as counsel given the responsibilities accorded to him by Clause 83 B of the Constitution: "he has to make a choice whether to be a supervisor or a litigator".

(b) Mr Waalken's appearance as counsel would reasonably give "the ordinary lay person" the perception that the court was not "operating independently" and that it was subject to "possible undue influence". "The public may think that the judge is biased".

(c) In these circumstances, the Courts should "refuse him rights of audience". Any decision to the contrary would risk "bringing the judicial process into disrepute".

[6] The hearing took place on 20 May 2014. Mrs Clark handed up a written submission running to 176 paragraphs (more or less), 50 pages in length and containing 194 footnotes and a spreadsheet comparing the functions of the Lord Chancellor in Tonga to the judiciaries of New Zealand, Australia (Federal), United Kingdom, Canada (Federal) and Tonga. She also handed up a bundle of 23 authorities and a second volume containing commentaries, substantial extracts from and complete copies of over a dozen statutes including the Canadian Judges Act 1985 (in both English and French).

[7] In the third sentence of her concluding paragraph 8.2 Mrs Clark summarized her argument:

"The Lord Chancellor's broad powers in respect of the judiciary including security of tenure, financial security and administrative arrangements concerning the judiciary must preclude his appearance as counsel, particularly as counsel for the executive, if the constitutional fundamentals of actual and perceived judicial independence and impartiality are to be upheld".

[8] In an earlier paragraph 1.5.7 Mrs Clark put the same proposition slightly differently:

"If the constitutional office of the Lord Chancellor is engaged by a party as counsel, the appearance of partiality arises: a fair minded observer would be objectively reasonable to apprehend that, in the light of the Lord Chancellor's powers in respect of the judiciary, the judges might favour the party represented by the Lord Chancellor".

[9] In paragraph 7.12 Mrs Clark suggested that given the Lord Chancellor's powers, a fair minded lay observer would reasonably apprehend that if he acted as counsel "the judges might unconsciously favour" his submissions.

[10] In paragraph 7.13 Mrs Clark explained, following Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 that for bias to be established it is necessary first, "to identify the factor which might lead a judge to decide a case going beyond the legal and factual merits and secondly, to articulate the logical connection between that factor and the feared deviation". In paragraph 7.14 she identified the "perceived factor" to be "the potential for the judge to be subject to the powers the Lord Chancellor possesses, including as Chair of the Judicial Appointments and Discipline Panel. The logical connection was identified as being that "the judges might unconsciously favour the party represented by the Lord Chancellor because of fear of disadvantage if the Lord Chancellor's client is unsuccessful".

[11] In paragraph 7.21 Mrs Clark suggested that:

"... if the Lord Chancellor appears as counsel, the fair minded observer, even if not apprehending partiality would think that the Court ought not to be subjected to a perception of conflict between a judge's personal interest and [his] duty".

[12] Mrs Clark's submissions, both written and oral were skilful, tactful and elegant. She accepted that the application raised "delicate" questions. I agree. Stripped of its embellishments, the submission is simple: Mr Waalkens should be denied audience in the Courts of Tonga because as Lord Chancellor he has such extensive powers over the judiciary that it may reasonably be inferred that those members of the judiciary (Magistrates, Puisne Judge, Chief Justice, Judges of Appeal) would be frightened into complying with his submissions rather than considering them independently, impartially and on their merits as is required.

[13] Before directly addressing this submission, it may be convenient to dispose of several questions which were alluded to but which are not in issue. The first is that it is accepted (Black v Taylor 6 PRNZ 690) that the Court has the inherent jurisdiction to deny audience to counsel in a particular case "where the integrity of the judicial process would be impaired by counsel's adversarial representation of one party against the other". In Clear Communications Ltd v Telecom Corporation of New Zealand Ltd 14 PRNZ 477, 482 & 483 the High Court suggested ten principles which should be borne in mind before audience is denied to counsel in a particular case. The tenth principle is that:

"Although the jurisdiction is not to be emasculated by setting the threshold so high that it could never be attained, there must be something truly extraordinary before removal could be contemplated. It could be justified only in cases of truly egregious misconduct likely to infect future proceedings".

[14] Secondly, where bias is raised:

"The governing principle (in Australia) is that ... a judge is disqualified if a fair minded observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide" (see Ebner, supra, 344 paragraph 6).

In England and Wales the test is slightly different. The question there to be answered is:

"Whether having regard to the [relevant] circumstances there [is] a real danger of bias on the part of the (decision maker) in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration" (R v Gough [1993] UKHL 1; [1993] AC 646).

I am not aware that the superior Courts in Tonga have decided which test to apply (although see Lali Media v Lavaka [2003] To. L.R. 114). There may not in fact be much practical difference between them. Since, in this case, it is not the removal of the judge but the removal of counsel appearing before him which is being sought, the principle must in any event be somewhat modified.

[15] Thirdly, the importance of preserving the independence and impartiality of the judiciary in Tonga is not doubted. It is recognised in Clause 83 A of the Constitution which reads:

"The existing underlying constitutional principles of the Rule of Law and Judicial Independence shall always be maintained".

It is reaffirmed in the oath taken by the Chief Justice and the other Judges which commits them:

"to perform truly and with impartiality [their] duties as a judge in accordance with the Constitution and the Laws of the Kingdom".

In addition, judges are well aware of international treaties and declarations to the like effect. For example, Article 14 of the International Covenant On Civil and Political Rights 1966 requires:

"that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law".

Principle IV of the Commonwealth (Latimer House) Principles 2003, states:

"An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice".

[16] In his concise written submissions in answer, Mr Waalkens (to whose appearance at the hearing of the application no objection was taken) first pointed out that contrary to what was being suggested (see especially paragraph 1.5.7 quoted in paragraph 8 above) it was not the office of Lord Chancellor which was being engaged to represent the Plaintiffs but Mr Waalkens in his personal capacity as a member of the inner Tongan Bar. He suggested that Mrs Clark's analysis of the Lord Chancellors powers was misconceived and provided no "real" or even "remote" possibility of bias. While there might be a particular matter in which conflict of interest might dictate that he should not appear, this principle applies equally across the Bar. The suggestion that a fair minded observer might reasonably conclude that the judge would grant favour to the case being advanced by counsel simply because of his status as Lord Chancellor was described as "absurd".

[17] In part 5 of her submissions Mrs Clark, by detailed reference to the Constitution, described the powers invested in the Lord Chancellor. She compared those powers with the powers previously and currently conferred on the Lord Chancellor in England and Wales. She suggested:

(i) "that judges in Tonga are comparatively vulnerable to reduction of their retirement age, as the Lord Chancellor, acting with the consent of the King in Privy Council may make regulations to establish a retirement age for judges".

(ii) "judge's salaries have ... less protection in Tonga [than in England and Wales, Australia, New Zealand or Canada]. "The level of judicial salaries rests entirely with the King" ... "set on the basis of recommendation of the JADP" (of which the Lord Chancellor is the chairman). Even Fiji offers better protection.

(iii) "judicial pensions are determined by statute in Australia, United Kingdom and Canada" whereas in Tonga they are "a matter of discretion for the Lord Chancellor, the JADP and the King in Privy Council".

(iv) In Australia and Canada "judicial discipline is essentially handled by the Judiciary" whereas in Tonga "the only member of the Judiciary on the Judicial Appointments and Discipline Panel (of which the Lord Chancellor is the chairman) is the Chief Justice".

(v) In New Zealand and the UK the Ministry of Justice administers the courts. In Tonga, however "the Lord Chancellor's responsibility for administration of the Courts is unusual in that the responsibility for administration of the courts usually resides in the executive or in the courts themselves".

Taken together, it was suggested, these factors clearly demonstrate the extent of the Lord Chancellor's powers in relation to the judges: he has a say in when they retire, in their salaries, in their pensions and in their discipline. How could a judge before whom Mr Waalkens chose to appear reasonably be expected not to be influenced by such considerations?

[18] Mrs Clark's submissions were clearly the product of very considerable and admirable industry. Such industry can however only reveal a limited portion of the whole reality, the balance being supplied by experience. It may well be true, as the poet tells us that there is "at best only a limited value in the knowledge derived from experience" however almost exclusive reliance on academic research without the additional benefit of that experience that comes from living in (or at least regularly visiting) and regularly practising at the Bar at which one is appearing carries with it the risk that the difference between appearance and reality will be insufficiently appreciated. It is plain to me that this is what happened in this case.

[19] The actuality is in fact quite different from scenario described by Mrs Clark. It is as follows. The Supreme Court of Tonga has one Chief Justice and, at, present one Puisne Judge. Both are employed on contract. Subject to contract, they hold office according to the Constitution "during good behaviour". These contracts ("inevitable in some jurisdictions" – Latimer House Principles) are freely entered into by the parties and their breach would attract the normal consequences. They do not provide that salaries can be reduced. No attempt to reduce or freeze salaries has ever been made, so far as I am aware. No regulations have been made to provide for retirement age. None are necessary because the matter is dealt with in the contracts. The general tendency is anyhow for retirement ages to be increased in the Pacific, not reduced. So far, all the superior court judges have been expatriates. Their employment is not, and is not expected to be, pensionable. In the 3½ years that I have been a member of the JADP two complaints have been received against judicial officers, both magistrates. The recommendations to the Privy Council to terminate the appointment of the first and to accept the resignation of the second were unanimous and followed a full discussion in the Panel. The Lord Chancellor himself did no more than chair the meeting. The Lord Chancellor's responsibility for "the administration of the courts" is similar in character and aspiration to his responsibility (also in Clause 83B) "for the maintenance of the rule of law". In fact, the Lord Chancellor whose appointment is part-time and held ad interim and who usually visits Tonga about every six weeks for 2 or 3 days, has no department, has no staff and has issued no administrative instructions at all since his appointment. The day to day administration of courts is the responsibility of the Chief Justice with the assistance of the Puisne Judge, the Chief Magistrate, the Registrar, sometimes one or two officers in the Ministry of Justice and, very occasionally, the Public Service Commission. The Lord Chancellor is a valued adviser and friend to the judiciary; to represent him as a threating presence or a powerful supervisor is seriously to misrepresent the true position.

[20] If the premises fail then so must the conclusion drawn from them. The "perceived factor" is, in my judgment and experience simply without basis in fact. It amounts to no more than a theory derived from the study of papers. No evidence of anyone having any experience of the work of the Lord Chancellor or of the courts was adduced at all. Assuming, however, for the sake of argument, that the Lord Chancellor actually had the powers and influence attributed to him, would the "logical connection" then follow?

[21] I have already quoted from paragraph 7.21 of Mrs Clark's submission but think that the last words of the quotation bear repeating:

"The Court ought not to be subjected to a perception of conflict between a judge's personal interest and [his] duty".

In my opinion, this hopelessly idealistic supposed precept, so sweet, so quaint, seriously distorts the reality of judicial life in the Islands.

[22] In paragraph 6.39 Mrs Clark referred approvingly to Section 113(1) of the Constitution of the Republic of Fiji. This Constitution was drafted by a military government which had abolished its democratically enacted predecessor resulting in the termination of all those judges who still remained on the bench. Some had contracts, some had "permanent" appointments but all were equally swept away. They lost their salaries, their pensions and their houses. This was not the first time that judges in Fiji were treated in this way, it had happened before, in 1989. And, neither is such treatment of judges confined to Fiji. In Papua New Guinea, in the Solomon Islands, and most recently in Nauru, the essential powerlessness of the judiciary in the face a determined military or executive prepared to flout the law has been amply demonstrated.

[23] In the time that I have been in Tonga I have presided over civil and criminal trials and appeals in which the parties have included the Princess Royal, the Prime Minister, the former Prime Minister, the Deputy Prime Minister, the Leader of Opposition, the then Speaker of the Legislative Assembly, the Minister of Justice and the entire Cabinet, to identify just some. Sometimes I have found against them, sometimes in their favour. They are all, in their own way, powerful persons in Tonga who, should they chose so to do, could probably make a judges' continuation in office difficult or unpleasant, to say the least. Not one has done so and the reason for that is clear: contrary to what the Applicant implies, the people of Tonga, both high and humble, appreciate and respect the need for an impartial and independent judiciary. It is respect for the judiciary rather than a piece of paper which protects the judiciary from the interference so sadly seen elsewhere and which gives the courts (and their local officers in particular) the courage to take sometimes very difficult decisions. Unsubstantiated allegations of weakness or bias do not, in my view assist to maintain that respect. In may not be out of place to remind counsel that such allegations should not be advanced merely on the basis of client's instructions; they should only be made if counsel are satisfied that proper grounds exist to support the application (Arab Monetary Fund v Hashim he times 4 May 1993).

[24] A number of concluding points may be made. First, none of the authorities relied upon by Mrs Clark provides a precedent for the denial of audience to a legal practitioner in good standing in all courts of the jurisdiction to which he is admitted. If the application were to be granted in the form in which it is sought, then Mr Waalkens would be unable to represent himself in, for example, a minor traffic matter in the Magistrate's Court. He would also be debarred from representing his client on any appeal against my decision on this application to the Court of Appeal. Secondly, there is no suggestion that Mr Waalkens has misconducted himself in an "egregious" manner.

[25] The third point is that if accepted, there appears to be no logical reason for restricting the principle advanced by Mrs Clark to the appearance by Mr Waalkens. The Attorney General, with whom I have being friendly for many years has appeared several times before me without objection. Lord Tupou, a Law Lord and also a member of the Judicial Appointments and Discipline Panel is a regularly appearing practitioner. The Minister of Justice represented himself before me last year. None of these appearances has raised any objection from the Law Society which is the body which would seem to me to be in the best position to make an application of this kind if it thought it to be appropriate. Should I now disqualify the leader of the Bar and all those other members of the Bar who are well known to me on the ground of possible "unconscious" bias? Are we now going to begin "making windows into men's souls"?

[26] Fourthly, the only issue for argument in the Plaintiff's application to the Court is a purely legal question: was Cabinet's prior consent required before the Second Defendant's services could lawfully be terminated? Answering that question will not involve assessment of the merits, evaluation of the credibility of witnesses or the exercise of discretion. The suggestion that a tribunal would "subconsciously" be frightened by Mr Waalkens into misconstruing the law in the knowledge that its misconstruction would later be laid open for inspection by a higher court on appeal seems altogether too far fetched. I cannot conceive that a fair minded observer would begin to find the suggestion credible.

[27] In paragraph C of the grounds of application, Mrs Taumoepeau advised that:

"we will consider an appeal if [the application] is ruled against us".

I was surprised to find such a statement appearing in an application presented by Senior Counsel as I had thought it was well understood that this sort of indication is regarded as being quite improper and as amounting to a threat to the Court hearing the application. Apart, however, from wondering whether the indication was designed "subconsciously" to affect my unbiased consideration of the application, I was fortunately able to take advantage of counsel's error. It was not necessary to set out in as much detail as would otherwise be the case all the submissions placed before me by counsel. Neither need the position of the Judges of Appeal in relation to the application be considered. The former will doubtless appear in their entirety in the appeal books while the Court of Appeal will be able to decide whether to grant audience to Mr Waalkens without being hampered by my views on the propriety of them so doing.

Result:

The application is dismissed. The Plaintiffs are to have their costs, to be

taxed if not agreed.

DATED: 13 June 2014
CHIEF JUSTICE

N. Tu'uholoaki
13/06/014.