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Tapueluelu v Speaker of the Legislative Assembly of Tonga [2023] TOSC 38; CV 14 of 2023 (21 April 2023)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION

NUKU'ALOFA REGISTRY


CV 14 of 2023


BETWEEN:

MATENI TAPUELUELU Applicant / Proposed Plaintiff

-and-
[1] SPEAKER OF THE LEGISLATIVE ASSEMBLY OF TONGA
[2] LEGISLATIVE ASSEMBLY OF TONGA

Proposed Defendants


Ex parte application for leave to apply for judicial review


RULING


BEFORE: LORD CHIEF JUSTICE WHITTEN KC

To: Mrs F. Faanunu and Ms F. Afu for the Applicant

The Defendants

Ruling: 21 April 2023


Introduction

  1. The Applicant, the Hon. Mateni Tapueluelu, is a Member of Parliament. He was a Member in 2018 and was re-elected following a by-election for Tongatapu 4 in November 2022.
  2. By application filed 22 March 2023, Mr Tapueluelu seeks leave to apply for judicial review of two resolutions of the Legislative Assembly passed in 2018 and a decision in 2022 to implement those resolutions, the effect of which was to, among other things, grant Members and staff of the Legislative Assembly a 14% pay rise backdated to 2018.

Application material

  1. The applications[1] are supported by two affidavits of Mr Tapueluelu sworn 22 March 2023, a supplementary affidavit sworn by him on 28 March 2023 and a proposed Statement of Claim.
  2. An ex parte hearing was conducted on 6 April 2023 for the purpose of seeking clarification of some of the matters raised in the material filed.
  3. Following that hearing, counsel for the Applicant filed a memorandum on 14 April 2023 which addressed a number of the issues raised during the hearing (discussed further below) together with affidavits from Losaline Ma’asi, ‘Isileli Pulu and Penisimani ‘Epinisa Fifita (former Members of Parliament), sworn 13 April 2023; and a further supplementary affidavit by Mr Tapueluelu sworn 14 April 2023.
  4. On 18 April 2023, counsel filed a supplementary memorandum which attached an unsworn affidavit of the Hon. Dr ‘Aiseke Eke in support of the application.[2]

Background

  1. By the affidavit material filed, the following background is recounted and/or alleged.
  2. On 22 March 2018, Parliament Resolution Number 58-A/2018 was provided to the Members by way of a circular to secure the members votes on the Resolution. The letter “A” is said to be the category of resolutions approved through the use of a circular rather than a motion put to the Members to be debated and voted upon per the Rules of Procedure of the Legislative Assembly.
  3. Resolution 58-A/2018 was based on recommendations by the Standing Committee on Privileges in Report Number 1/2018, dated 16 March 2018.
  4. The Resolution proposed to approve:
  5. Resolution 58-A/2018 did not contain any reference to salary increases for the Members or staff of the Legislative Assembly.
  6. The Resolution was not the subject of a motion prior to its circulation for Members to approve. Voting on the Resolution was effected by placing a tick next to the Members’ names and signing their names. The Speaker of the Legislative Assembly, Lord Fakafanua, also voted on the Resolution.
  7. On 21 May 2018, the Standing Committee on Privileges and the Standing Committee on Finance produced separate but similar reports, both labelled as Number 02/2018.
  8. The Report by the Standing Committee on Privileges recorded that it pertained to Resolution 58-A/2018 of 22 March 2018, in which the Legislative Assembly approved for the Committee to look into and consider all of the Members’ benefits and other privileges with a view to better assist the Members to carry out their functions and fulfil their obligations to the people of Tonga. The work was done by Dr ‘Aisake Eke, [then] a consultant hired to assist the Privileges Committee. The independent report provided a summary of the then current support services, benefits and salaries of the Members of Parliament. It also contained recommendations to:
  9. Dr Eke’s report was said to be based on Resolution 58-A/2018. However, his report went beyond the scope of that resolution by also considering the remuneration of Members and staff.
  10. The Report by the Standing Committee for Finance also recorded that it pertained to Resolution 58-A/2018 of 22 March 2018, by which the Legislative Assembly approved the Privileges Committee to look into and consider all of the Members’ benefits and other privileges with a view to better assist the Members to carry out their functions and fulfil their obligations to the people of Tonga. The work was also said to have been done by Dr Eke. The Report contained four main recommendations, namely, to:
  11. Between 22 and 30 May 2018, Resolution 60A/2018 (dated 30 May 2018) was also distributed by circular to Members for their vote. That Resolution proposed to:
  12. In his unsworn affidavit on this application, Dr Eke proposes to depose that:
  13. None of the reports from the Standing Committees or Dr Eke were referred back to Parliament for debate and vote in accordance with Rule 79 of the Rules of Procedure of the Legislative Assembly (“the Rules”).
  14. Resolution 60A/2018 was approved or adopted by circular on 30 May 2018. Mr Tapueluelu says that although he was in Tonga at the time, he did not receive the circular, and it appears he was excluded from receiving it. He does not know why.
  15. The resolution was signed by all but six Members. Losaline Ma’asi made a note on the resolution for a debate to be conducted on it. She deposes herein that she did not agree to the pay rises unless consideration was also given to the Public Service. She raised the matter with the then Prime Minister, the late Akilisi Pohiva. As a result, she and a number of other Members, including Penisimani Fifita, submitted a letter to the Speaker withdrawing their signatures from the resolution. Losaline does not recall any further discussion in Parliament about the resolutions or any pay rise after the letter withdrawing their signatures from Resolution 60A/2018.
  16. On or about 14 June 2022, during a sitting of the Legislative Assembly, the Ministers presented their respective budgets for the 2022/23financial year. In his presentation, the Minister of Finance at the time, Hon. Tatafu Moe’aki, referred to a provision of TOP$6.7 million for salary increases for Members of the Legislative Assembly and staff.[3] During lengthy proceedings that day, there was no clear discussion recorded about any decision to pay out the proposed salary increases or to backdate the increases to 1 July 2018.
  17. The 2022/23 Appropriation Act was assented to on 30 June 2022. At the bottom of page 152 of the approved Budget, the sum of $6.7 million is stated in the "Note" without any explanation or detail as required by ss 7(5) of the Public Finance Management Act. Mr Tapueluelu believes that sum represents the amounts for the pay outs pursuant to the Resolutions.
  18. On 1 July 2022, the Legislative Assembly resolved to implement the salary increases and backdate the payments to commence from 1 July 2018. That decision was not the subject of any motion presented to, or debate within, the Legislative Assembly. Further, there is no record of any proper resolution to that effect as required by clause 19 of the Constitution.
  19. Some Members of Parliament and staff have received backdated payments. On or about 30 May 2022, Mr Tapueluelu was asked to provide an account for his payout. He declined to do so as there was no clear resolution to that effect.
  20. The financial implications of the decision are said to have been “immense” given the nation was in a critical situation and in a recovery phase from the impacts of the volcanic eruption and tsunami on 15 January 2022 and the COVID 19 pandemic from the first week of February 2022.
  21. The salary increases for the Members and staff were described in the Reports of the Standing Committees as being justified on the basis of increases in the costs of goods in Tonga. The effect of the decision was to grant Members of Parliament a pay rise of 14%. Meanwhile, the cost of living allowance for all other civil servants was only 3%.

Reasons for delay in filing the application

  1. Mr Tapueluelu says he first became aware of the salary increases on or about 30 May 2022. He was not then a Member of Parliament. During a series of text messages, the Parliamentary accountant, Mr Nanuma Kafatolu, requested confirmation of his account details for his pay rise and benefit (gratuity). Mr Tapueluelu asked Nanuma to clarify what the pay rise was about and whether it was different from the gratuity. Nanuma explained that it was the outcome of Dr Eke’s report in 2018 where recommendations were made in respect of housing allowance, hospitality, telephone allowance, internet, salary raise and gratuity. However, he added that there was no budget at the time for those payments. Mr Tapueluelu then told Nanuma to hold off on any payment to him if there was no decision by the Legislative Assembly on the matter. He then thought Nanuma was referring to the remaining benefits that were still outstanding from the previous year. Nanuma replied that the Legislative Assembly had approved Dr Eke’s report.
  2. Mr Tapueluelu then requested a copy of the Legislative Assembly’s decision. On 31 May 2022, he asked Nanuma to clarify if the pay rise was to be backdated to 2018. Nanuma said that it was. Mr Tapueluelu then instructed Nanuma that he wanted to hold off from receiving any such payment. Mr Tapueluelu did not then receive a copy of the Legislative Assembly’s decision.
  3. Since then, Mr Tapueluelu has, on multiple occasions, sought a copy of the decision(s).
  4. On 16 September 2022, he wrote to the Speaker in relation to the pay rise. He expressed the view that the new scale for the Members and staff salaries was illegal and that he was collecting information for legal action. The Speaker did not respond.
  5. On 17 November 2022, Mr Tapueluelu wrote again to the Speaker advising that he refused to be paid at the new Parliament salary scale.
  6. On 28 November 2022, Mr Tapueluelu issued a formal written notice[4] to the Speaker in which he again requested a copy of the decision(s) and raised questions as to:
  7. On 21 December 2022, the Chief Clerk, Mrs Gloria Pole’o, responded by email that while Mr Tapueluelu could direct written questions to the Speaker, Lord Fakafanua had agreed to sit down and talk with Mr Tapueluelu when he returned from overseas travel.
  8. By reply on 29 December 2022, Mr Tapueluelu again asked the Chief Clerk (this time) for a copy of the Resolution that was circulated to approve the pay rise.
  9. While waiting for the Speaker to confirm their meeting date, Mr Tapueluelu tried to obtain information from the Minister of Finance. On 9 January 2023, he raised the same questions he had posed to the Speaker by way of written notice of questions to the Minister of Finance.[5]
  10. On 24 January 2023, the Minister of Finance responded that the Office of the Legislative Assembly could assist with Mr Tapueluelu’s questions.
  11. On 26 January 2023, Mr Tapueluelu met with the Speaker. During their meeting, Mr Tapueluelu was given a copy of Resolution 60A/2018 of 30 May 2022. That was the first time he had sighted it. He was surprised to read the decisions adopted by the resolution and the references to Resolution 50-A/2018 of 22 March 2018 to justify the salary review and the pay rise based on Dr Eke’s report.
  12. After considering Resolution 60A/2018, Mr Tapueluelu was concerned that the decision was inconsistent with what he recalled was the intention and the decisions covered by Resolution 58-A/2018. He had no issue with the decisions covered by that earlier resolution as there was no decision proposed about any salary review or raise for the Members and staff. His main concern arose when payments to other Members and the staff were made in July 2022 based on Resolution 60A/2018, of which he was not aware until 26 January 2023.
  13. Further, Mr Tapueluelu deposes to having initially received legal advice that the limitation period for bringing this application was five years from the date the cause of action arose, which he calculated to be March 2023, based on the date of Resolution 58-A/2018. That period is provided by ss 16(1) of the Supreme Court Act. The advice was erroneous. The five-year limitation period applies to actions for debt, damages and possession of property (other than land[6]). He says further that he only recently received the correct advice that, pursuant to Order 39 rule 2(2), an application for leave to apply for judicial review is to be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending that period.

Applicant’s claims

  1. By his affidavit material and proposed Statement of Claim,[7] Mr Tapueluelu makes the following claims.
  2. The powers of the legislature of Tonga are not at large and are circumscribed by the written Constitution of Tonga. The Constitution is the supreme law.[8]
  3. The Rules of Procedure of the Legislative Assembly are mandated by clause 62(2) of the Constitution. The Legislative Assembly’s failure to comply with its Rules is a breach of the Constitution.
  4. The Legislative Assembly does not have the privilege of supremacy over the Courts.

Use of circulars

  1. Part 5 of the Rules prescribes the procedure for matters for discussion in the Legislative Assembly. Rule 79 requires such matters to be presented by way of a notice of motion. Both Resolutions 58-A/2018 and 60A/2018 were communicated to the Members in the form of circulars delivered to their homes for them to tick and sign their names to express agreement. The circulars were neither a motion nor a resolution. The manner in which the Resolutions were communicated was in breach of Rule 79 (and 80) which is, in turn, inconsistent with clause 62(2) of the Constitution.
  2. Ordinarily, circulars are primarily used for administrative purposes such as issues concerning travel, donations and other minor matters.[9] In this instance, the practice is inconsistent with Rule 117 and therefore clause 62(2) of the Constitution as it denies Members their right to debate and vote before reaching a decision by means of a resolution as per clause 19 of the Constitution.

Decision without valid resolution

  1. The Legislative Assembly’s decision to approve Resolutions 58-A/2018 and 60A/2018, thereby approving the backdated payouts for Members and staff, was without any record of a proper resolution to that effect as required by s 19 of the Constitution. Further, the failure by Parliament to properly discuss such a critical issue by way of proper motion, debate and vote in accordance with the Rules was a breach of its Rules and therefore a breach of clause 62(2) of the Constitution.

Inconsistency between Resolutions

  1. Resolution 60A/2018 was inconsistent with Resolution 58-A/2018 in that both reports by the Standing Committees on 21 May 2018 did not accurately reflect Resolution 58-A/2018, or what it intended, particularly with respect to Members’ benefits but excluding any salary increase.

Speaker’s vote

  1. Rule 65 of the Rules empowers the Speaker to cast a vote where there is an equality of other votes. On 19 March 2018, the Speaker cast his vote in respect of Resolution 58-A/2018. There was no equality of votes cast on the Resolution. Therefore, the Speaker’s vote was in breach of Rule 65 and thereby a breach of clause 62(1) and (2) of the Constitution.

Standing Committees - lack of authority

  1. The Standing Committees on Privileges and Finance did not have authority to recommend the approval of any salary increase or any monetary benefits for the Members or staff. The Remuneration Authority is vested with the authority to consider and make recommendations as to the remuneration and other monetary benefits of the officers listed in the Schedule of the Remuneration Authority Act, which includes the members of the Legislative Assembly and its staff, the Lord Speaker and the Chief Clerk.[10]
  2. The Remuneration Authority made recommendations on these matters in 2016. It was therefore appropriate to refer these matters to the Authority as an independent review to inform any new or revised recommendations, particularly as the matters would have a significant financial impact on the people of Tonga.

Standing Committees – conflict of interest

  1. Rule 173A provides that a Committee shall excuse a member of the Committee from deliberation on that Committee‟s work where it directly or indirectly relates to that member or a member of his family (spouse, mother, father, siblings, or children) or to any other person and whereby the Committee’s impartiality may be compromised if the member continues to be present. Here, in breach of Rule 173A, the members of the Standing Committees on Privileges and Finance considered and made recommendations on matters with which they had a direct pecuniary interest or which directly affect them. Those breaches of Rule 173A are also inconsistent with clause 62(2) of the Constitution.

Legal unreasonableness

  1. The timing of the approval was so unreasonable that no reasonable authority could ever have decided it. Tonga was still recovering from the Hunga Tonga Hunga Ha’apai volcanic eruption and tsunami and the Covid-19 lockdowns. The Nation was in crisis and subject to severe financial constraints. Yet, the Legislative Assembly made a decision, without any proper motion, debate or vote, to apply substantial amounts of money to pay out salary increases for Members and staff back dated 1 July 2018.

Relief sought

  1. Mr Tapueluelu seeks declarations in the following terms:[11]

Consideration

  1. Applications for judicial review are governed by Order 39 of the Supreme Court Rules, which provides, relevantly:

0.39 Rule 1. When remedy available

This order applies to any action against an inferior Court, tribunal or public body (including an individual charged with public duties) in which the relief claimed includes an order of mandamus, prohibition or certiorari, or a declaration or injunction (in this order referred to as “judicial review”).

0.39 Rule 2. Leave of Court required

(1) No application shall be made for judicial review unless the leave of the Court has been obtained in accordance with this rule.

(2) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending that period. ...

O.39 Rule 3. Court’s powers

(1) The Court may grant the application without a hearing, but shall not refuse it without hearing the Applicant.

(2) The Court shall not grant leave unless satisfied that the Applicant has a sufficient interest in the matter to which the application relates.

Principles

  1. In Rotomould (Pacific) Ltd v Ministry of Meteorology, Energy, Information, Disaster Management, Environment, Climate Change and Communications [2020] TOSC 114, the Court’s approach to applications for leave to apply for judicial review was described as follows:
“[11] Judicial review allows the court to exercise a supervisory role over, inter alia, public bodies and tribunals, to ensure that public powers are exercised lawfully: Touliki Trading Ltd v Fakafanua [1995] Tonga LR 8. The grounds upon which administrative action is subject to judicial review have been conveniently classified as ‘illegality’, ‘irrationality’ and ‘procedural impropriety’: Pekipaki v Fifita [2018] TOCA 19 at [29].[12] Material mistake as to an established fact is an accepted ground of review. The decision-maker, in making its evaluation and drawing its conclusions, must proceed upon a correct interpretation of relevant law and must have taken account of relevant considerations and ignored irrelevant considerations. To fail in any of these respects is an error of law. Where, for instance, the information the decision-maker acted upon was clearly incorrect, or where there is a 'misunderstanding or ignorance’ of an established and relevant fact, the decision may be susceptible to being set aside when those conclusions are so clearly insupportable as to amount to an error of law: Tafa v Viau [2006] Tonga LR 125 at [62], Kautoke v Public Service Commission [2019] TOCA 9 at [43], [44].
[12] Sufficient interest is the first and foremost consideration in relation to an application for leave to apply for judicial review. It is a broad and flexible concept.
[13] The Court must be satisfied that there is an arguable case for review. The burden upon the Applicant in that regard is not onerous. No in-depth analysis by the Court is required. If, on a quick perusal of the material then available, the Court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the Applicant the relief claimed, it ought, in the exercise of a judicial discretion, grant leave to apply for that relief: Public Service Commission v Public Service Tribunal [2019] TOSC 53.[13]
[14] However, the Court will not grant leave where the case is frivolous, vexatious or hopeless. The purpose of the requirement that leave be obtained is to ensure that an Applicant may only proceed to a substantive hearing if the Court is satisfied that there is a case fit for further investigation on a full inter partes hearing: Public Service Association (PSA) v Government of Tonga [2016] TOSC 34 at [10].[14]”

Public body

  1. The Legislative Assembly is a public body established by clause 31 and governed by clauses 56 to 83 of the Constitution. In principle, all exercises of public power are reviewable, whether the relevant power is derived from statute, the prerogative or any other source: Public Service Association (PSA) v Government of Tonga [2016] TOSC 34 at [22].
  2. I proceed therefore at this stage of the analysis on the basis that subject to the discussion below in relation to justiciability, certain decisions of the Legislative Assembly may be amenable to judicial review.

Standing

  1. Sufficiency of interest in the matter to which the application relates is a mixed question of fact and law, a question of fact and degree and the relationship between the Applicant and the matter to which the application relates, having regard to all the circumstances of the case. It will often be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the Applicant in relation to those powers or duties, and the breach of those said to have been committed. In some cases, the question is far from easy to answer, raising complicated issues as to the rights of the private citizen to invoke the aid of the courts in compelling the performance of public duty or in righting public wrongs. In other words, the question of sufficient interest cannot, in such cases, be considered in the abstract, or as an isolated point. It must be taken together with the legal and factual context: Flyniu v Ata [2004] TOSC 49.[15]
  2. Mr Tapueluelu is a Member of Parliament and was in 2018 when the subject Resolutions were passed. He has declined to receive the pay rises ‘by reason of his concerns about how they were resolved and ‘passed’. He therefore has a direct interest in the decisions of the Legislative Assembly and the procedures by which those decisions were reached. He also contends that his concerns in relation to the subject matter of this proceeding extends to the constituents he represents. He says further, in terms, that by reason of the decision to pay out the backdated increases in July 2022, “when the people of Tonga were in an extremely difficult time emotionally and financially” following the natural disasters earlier that year, the substantial financial impost on the nation’s budget indirectly affects all the people of Tonga.
  3. For those reasons, including legitimate public interest in the matters alleged, I am satisfied that Mr Tapueluelu has demonstrated a sufficient interest in the subject matter of the application.

Delay

  1. The subject Resolutions were passed in March and May 2018. The decision to implement them was reportedly taken in July 2022. The present application in respect of those has been filed well out of time.
  2. The Court's discretion to extend time is a wide one. Where, as here, there has been significant delay, the question is whether, on the facts, there is a reasonable excuse for the delay and there are good reasons for extending time. In this context, good reason must mean that there exists some fact, condition, or situation that makes it proper or appropriate for the Court to extend time. For instance, the Applicant’s circumstances may have been such that he could not with reasonable diligence file an application within three months. In other circumstances, the issue arising in the case might be of such general importance that leave should be granted notwithstanding an unacceptable delay: Helu v Electoral Commission [2022] TOSC 76.[16]
  3. However, even if good reasons are established, the Court retains the discretion to refuse leave if the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice, not only the instant parties, but the wider public and/or the rights of any person or would be detrimental to good administration.[17]
  4. Having considered the facts and circumstances deposed to by Mr Tapueluelu in his affidavits in support of his application to extend time for the bringing of this application, I am satisfied that the delay should not bar a grant of leave for the following reasons:
  5. Ultimately, any decision to extend time requires the Applicant to demonstrate an arguable case. Before turning to that, however, I must consider whether the claims are justiciable before this Court.

Are the claims justiciable?

  1. Although judicial review at general law evolved in the context of the availability of remedies, an additional test of justiciability emerged. The subject matter of a dispute must not be non-justiciable, in the sense that it is not appropriate for resolution by a court in judicial review.
  2. Relevantly, s 4 of the Supreme Court Act confers jurisdiction on the Court to hear any proceedings, other than proceedings which are excluded from its jurisdiction by the Constitution. Clause 90 of the Constitution provides, relevantly, that the Supreme Court shall have jurisdiction in all cases in Law and Equity arising under the Constitution and Laws of the Kingdom (except cases concerning titles to land which shall be determined by a Land Court subject to an appeal to the Privy Council in matters relating to hereditary estates and titles or to the Court of Appeal in other land matters) and ... in all cases affecting Public Ministers.
  3. However, the courts, like other institutions, including Parliament, are subject to institutional constraints and must take care not to trespass on the decision-making functions best suited to other branches of government. For instance, certain matters of high policy involving political judgment, as distinct from administrative decisions, are inherently unsuitable for review by the courts because, in practical terms, the courts are not competent to do so as they would be in a judicial no man's land with no judicial or manageable standards by which to judge the issues. The larger the policy content of the issue, the less likely it is to be suitable for the courts to intervene: Flyniu v Ata [2006] Tonga LR 10.[18]
  4. In Public Service Association (PSA) v Government of Tonga, ibid, Paulsen LCJ observed that the courts acknowledge limits to the scope for review of the exercise of a public power. Those limits are reflected primarily in the notion even if the court has jurisdiction, the exercise of power must be one that is appropriate for review and that relief is, in any event discretionary.[19] Further, his Honour noted that although no public administration is immune from review per se, the courts respect the constitutional and institutional differences between the branches [of Government] and defer over decisions involving: the national interest, polycentric issues, macro-economic policy, the allocation of public resources, the mediation of sectional interests and moral preferences.[20] The English and Australian courts recognise the need for deference based on a consideration of the status of the decision maker and the nature of the power being exercised.[21] The courts should therefore be very reluctant to embark on an examination of general government policies, priorities and funding decisions.[22]
  5. However, as I apprehend them, the Applicant’s claims here do not seek to encroach on such matters but are rather directed to the processes employed by the Defendants in arriving at the subject decisions. As the Court of Appeal observed in 'Atenisi Institute Inc v Tonga National Qualifications and Accreditation Board [2020] TOCA 4, in general terms [and particularly in cases of alleged illegality], the Court examines the process adopted by the decision-maker, including what it considered or did not consider, and whether it fell into legal error by, for example, misinterpreting its own statute. But the Court will not usurp the decision-maker’s function and make the decision itself or order it to make a particular decision unless, quite unusually, that is the only possible decision open to the decision maker.
  6. That characterisation of the Applicant’s claims raises a more refined question on justiciability, namely, whether the Court can or should review the internal proceedings of Parliament?
  7. In the seminal decision of Fotofili and Others v Siale [1988] LRC (Const) 102,[23] the respondent sued 25 of the 28 members of the Legislative Assembly, including the Speaker, for declarations to the effect that the appellants had unlawfully received payments, by way of parliamentary allowances under s 17 of the Legislative Assembly Act[24] for their services as members of the Legislative Assembly to which they were not entitled. The appellants moved for an order that the action be struck out on the ground that the Supreme Court had no jurisdiction to adjudicate on the issue. Martin J. held that it was for the Assembly alone to decide what allowances its members should receive, and that its decision was part of its internal proceedings and was not reviewable by the courts, but that the courts could enquire whether there had been a decision of the Assembly fixing the rates of allowances, and whether what was actually paid to the members conformed with that decision. Accordingly, his Honour declined to strike out the action.[25] The appellants appealed against his decision that the courts could enquire into whether there had been a decision of the Assembly, and the respondent cross-appealed against the decision that the courts could not review the reasonableness of the decision.
  8. The Privy Council held that the court had no jurisdiction to inquire into the validity of the internal proceedings of the Legislative Assembly where there had been no breach of the Constitution. Although Article 62 of the Constitution authorised the Assembly to make its own rules of procedure and Article 73 embodied certain Parliamentary privileges recognised in the United Kingdom, there was no express provision concerning the jurisdiction of the courts to inquire into the internal proceedings of the Assembly. In such a delicate constitutional situation, the court would look for a clear mandate to act. In the absence of any local legislative provision, the common law of England was to be applied, under the Civil Law Act. There was ample authority in English law for the proposition that an internal proceeding of the House was outside the jurisdiction of the courts.[26] The court therefore could not inquire whether the allowances fixed by the Assembly were reasonable. Furthermore, an inquiry whether a decision had been made to pay the allowances would also involve an inquiry into the internal proceedings of the Assembly and was likewise excluded.[27]
  9. The Committee further explained that although in England an Act of Parliament could not be challenged on the ground of irregular Parliamentary procedure, the position was different under a written Constitution such as that of Tonga, where, if on a true construction of the Constitution some event was made a condition for the validity of a law, the court would have jurisdiction to examine whether the condition had been met even if that involved an inquiry into the internal proceedings of the Assembly.
  10. The decision in Fotofili v Siale has been applied consistently in Tonga since.[28]
  11. In Moala v Minister of Police (No. 3) [1996] Tonga LR 211, Hampton CJ set aside an order of Parliament to commit the appellants for contempt. His Honour held, relevantly, that:
  12. In Lasike v Noble Tu'iha'angana [2006] Tonga LR 161, the plaintiffs challenged the 1 June 2006 Opening of the Legislative Assembly on the grounds that s. 17 of the Legislative Assembly Act had not been complied with. Webster CJ described the issue of whether the formal ceremonial Opening of the Legislative Assembly, attended by a great number of guests and following on the exercise of the power to convoke it under clause 38, was actually part of the internal proceedings of the Assembly, as “very much borderline”. In any event, his Honour held that the issue was clearly a matter involving the interpretation, and thus a possible breach, of the Constitution. Therefore, in terms of clause 82 (Constitution is the supreme law) and the authority of Fotofili v Siale, the Court had jurisdiction to inquire into it.
  13. In Sevele v Pohiva [2013] TOSC 49, the Legislative Assembly approved Parliament Motion No.1 of 2011 establishing a Special Parliamentary Committee to review "all the works that have been carried out" by the Nuku'alofa Development Corporation, a Cabinet Sub-Committee established in 2008 following the Nuku'alofa riots in November 2006. The committee produced a report. The Applicants sought leave to move for judicial review of the whole, or alternatively, parts of the report on the grounds that the Select Committee was invalidly constituted since certain of its members were ineligible for membership, the Committee exceeded its terms of reference and that by including two members of the Assembly on the Select Committee who were biased against the Applicants and by failing to comply with Rule 170, the Committee denied the Applicants natural justice.
  14. After reviewing the authorities commencing with Fotofili v Siale, Scott LCJ considered that only two questions arose, namely, whether the Applicants were asking the Court to enquire into the validity of the Assembly's internal proceedings, and whether a breach of the Constitution was alleged. His Honour opined that before any of the orders concerning the membership of the Committee could be granted, there would have to be an investigation into the way in which the Committee and its members were appointed and a further investigation to determine whether in fact, as claimed, the Committee's terms of reference were exceeded. Such investigations would almost certainly involve consideration of the effect of Rules 3, 159(2), 169 and 170, which would plainly amount to an enquiry into the Assembly's internal proceedings. His Honour then held that an alleged breach of the rules of natural justice which does not directly result in a breach of a discrete provision of the Constitution did not afford a jurisdictional basis upon which the Supreme Court could intervene. Accordingly, the application for leave was refused.
  15. In applying those principles to the present case, there can be little doubt that the Applicant is asking the Court to inquire into the internal proceedings of the Legislative Assembly, more specifically, the procedures by which the 2018 Resolutions and the 2022 decision to implement them were conducted. The question then becomes whether the Applicant’s claims, or any of them, amount to alleged breaches of the Constitution?
  16. Perhaps more for convenience than precision, most of the Applicant’s (proposed) pleaded complaints have been couched as breaches of specified Rules and thereby a breach of clause 62 of the Constitution.
  17. Clause 62 provides:

62 Rules of procedure

(1) The Legislative Assembly shall make its own rules of procedure for the

conduct of its meetings.

(2) Any member of the Legislative Assembly may, in accordance with its rules of procedure –

(a) introduce a Bill in the Assembly;

(b) propose a motion for debate in the Assembly; or

(c) present a petition to the Assembly,

and it shall be dealt with in accordance with the Assembly’s rules of procedure.

  1. One may interpolate therefore that the Applicant is contending, broadly, that not only is the Legislative Assembly required by the Constitution to make its own Rules, it is also required by the Constitution to follow them. The corollary to that, so the Applicant appears to contend, is that if the Legislative Assembly adopts a procedure that is not provided for by its Rules, then it will be in breach of clause 62. For the purposes of this application for leave, I am of the tentative view, that those propositions may be regarded as both unremarkable and uncontentious.
  2. It ought be noted at this juncture that, on its face, clause 62 applies to Rules for the conduct of Legislative Assembly’s meetings and for the procedure by which Bills, motions and petitions are to dealt with. On one view, the alleged procedure here of using circulars for voting on the subject Resolutions may be said to not constitute a meeting and that the proposals in those Resolutions were neither Bills, motions or petitions. However, any such argument itself risks circularity because the Applicant contends that the Rules do not provide for the use of circulars for the type of proposals conveyed by the Resolutions (i.e. not merely administrative issues) and that, in any event, the Rules required the proposals to be dealt with by way of motion.
  3. For those reasons, I am satisfied that even though the Applicant’s claims require the Court to inquire into the internal proceedings of the Legislative Assembly, they also comprise allegations of breaches of the Constitution, and that therefore, they are justiciable before this Court.

Arguable case?

  1. Finally, I turn to consider whether the Applicant has demonstrated an arguable case for leave. The requirement to show a prima facie case, or reasonable grounds for believing that there has been a failure of public duty, is an essential protection which enables the court to prevent against abuse of legal process by busybodies, cranks and other mischief makers: Flyniu v Ata, ibid.
  2. For the reasons which follow, I consider the Applicant has demonstrated an arguable case sufficient to warrant a grant of leave for further investigation on a full inter partes hearing. That case, as articulated so far, identifies and relies upon breaches or non-compliances with a number of Rules and other statutory provisions, which themselves invite consideration of other relevant and related provisions.
  3. Rule 1(2) provides that the Speaker is responsible for ruling whenever any question arises as to the interpretation and application of the Rules and deciding cases not otherwise provided for. In all cases he shall be guided by previous rulings and established practices of the Legislative Assembly and his decision shall be final. However, as their preamble states, the Rules are made in the exercise of the power conferred by clause 62 of the Constitution. Therefore, even though the finality of a relevant decision by the Speaker would appear to place it beyond the supervisory reach of the Court, any breach of the Constitution by reason of a decision contravening clause 62 (as interpreted above) by, for instance, directing a procedure for the passage of a resolution by the Assembly which is not consistent with that provided for by the Rules, renders the decision within reach. Further, it is unclear on the material, whether the use of the circulars in this case was the product of a decision by the Speaker pursuant to Rule 1(2).
  4. Rule 3 provides that any of the Rules may be suspended in whole or in part by the Legislative Assembly. There is no evidence presently before the Court that Rule 3 was invoked to enable the procedures adopted in respect of the subject Resolutions or decision to implement them.
  5. Rule 61(1) within the Rules for debates, provides, relevantly, that subject to s 18 of the Legislative Assembly Act, a member shall not speak or vote on any question on which he has a direct pecuniary interest, personal or other benefits. Section 18 provides that when the Assembly has been convoked, the Prime Minister shall make all arrangements as to the arrival and departure of the members of the Legislative Assembly and the Assembly shall have the power to make such provision as it thinks fit for the members and staff during and between sessions of the Legislative Assembly. It does not apply. Prima facie then, no Member was permitted to vote on the Resolutions insofar as they all had a direct pecuniary interest in the question of, inter alia, a significant pay rise.
  6. Division 4 prescribes the procedure for voting on a question. Rule 63(2) provides that every resolution of the Legislative Assembly or the Committee of the Whole House shall be reached by voting. The procedure contemplates an opportunity for debate before voting unless, in accordance with Rule 61(2)(a) the Speaker is of the opinion that a question has been sufficiently debated. Here, the available evidence is that there was no debate on either Resolution and there is no evidence that that was because the Speaker considered that the proposals had been sufficiently debated.
  7. Insofar as the Resolutions were implemented in 2022 by a further decision of the Legislative Assembly, it is arguable that that decision formed part of the Bill for the Appropriation Act for that year. Rule 64 requires that voting on all Bills in the Legislative Assembly shall be in accordance with clause 56 of the Constitution. That clause provides, relevantly, that votes shall be given by raising the hand or by standing up in division or by saying “Aye” or “No”. The purported votes on the Resolutions here were effected by ticking and signing the circulars.
  8. Part 5, Division 1 of the rules prescribes the procedures for motions. Insofar as the proposals in the Resolutions were or ought to have been presented as motions, the present evidence suggests that those procedures were not followed.
  9. Part 6 Division 3 regulates the composition and functions of Standing Committees. Rule 173A provides that a Committee shall excuse a member of the Committee from deliberation on that Committee’s work where it directly or indirectly relates to that member or a member of his family (spouse, mother, father, siblings, or children) or to any other person and whereby the Committee’s impartiality may be compromised if the member continues to be present. The Applicant raises an issue as to whether the reports by the Standing Committees on Privileges and Finance in relation to the proposals the subject of the Resolutions, which included the salaries and other benefits of Members and staff, which included members of the Committees, breached Rule 173A. A further and related issue arises as to whether any recommendation in relation to the salaries and other benefits of Members should have been referred to and provided by the Remuneration Authority, as recommended by Dr Eke.
  10. Part 7 of the Rules is concerned with Estimates, Reports and Audits. Rule 185 requires any proposed increase to a vote in the Annual Estimate to be the subject of a motion. An issue arises therefore as to whether the July 2022 decision to implement the Resolutions was the subject of a motion dealt with in accordance that Part.
  11. Part 3, section 6 of the Standing Orders of the Legislative Assembly provides that every Member and officer of the Legislative Assembly shall be given an annual salary and the allowances approved in the Estimates and at the rate determined by the Legislative Assembly. Following on from the preceding issue, the question arises therefore whether the salary and other increases the subject of this proceeding were approved in Estimates, and if so, whether they were required to be approved by way of motion in accordance with Rule 185. An allied issue is how the rate/s were to be determined by the Legislative Assembly.
  12. Finally, and returning to the Applicant’s core complaint, the only reference to the use of circulars in the Rules is found in Part 2 clause 4 of the Standing Orders in relation to overseas invitations for official visits by the Legislative Assembly.

Result

  1. Pursuant to Order 39 rules 2(1) and 3(1) of the Supreme Court Rules, the Applicant is granted leave to apply for judicial review of the lawfulness of the Defendants’ Resolutions 58-A/2018 and 60A/2018 and decision in July 2022 to implement those Resolutions.
  2. Within 14 days of the issuing of this Order, the Applicant as Plaintiff shall:
  3. The costs of this application shall be costs in the cause.



NUKU’ALOFA
M. H. Whitten KC
21 April 2023
LORD CHIEF JUSTICE

[1] Including a separate application to extend time within which to file the application for leave.

[2] Counsel advised that Dr Eke was travelling overseas and would swear his affidavit upon his return on 19 April 2023.

[3] Parliamentary minutes at pages 51 and 52.

[4] No. 9/2022

[5] No. 4/2023

[6] For which a 10 year limitation period is provided by s 170 of the Land Act.

[7] In her memorandum filed 14 April 2023, counsel for the Applicant foreshadowed that if leave is granted, she would seek to amend the proposed Statement of Claim in accordance with the additional information filed post hearing.

[8] Clause 82

[9] Per the affidavits of Losaline Ma’asi, ‘Isileli Pulu and Penisimani ‘Epinisa Fifita.

[10] Section 13(1)(a).

[11] The forms and subject of the declarations sought were more extensive in his affidavit material than in his currently proposed Statement of Claim.

[12] Referring to Lord Diplock in Council of Civil Service Unions v The Minister for the Civil Service [1985] AC 374, 410.

[13] Citing Flyniu Airlines Ltd v Faletau [2006] Tonga LR 1 and Public Service Association (PSA) v Government of Tonga [2016] TOSC 34 at [9] referring to Moala v Public Service Commission [2012] TOCA 14 and Inland Revenue Commissioner v National Federation of Self-Employed and Small Businesses Limited [1981] UKHL 2; [1981] 2 All ER 93, 106.

[14] Referring to the White Book, 1991 Edition at 53/1-14/8; Davey v Aylesbury Vale District Council [2007] EWCA Civ 1166; [2008] 2 All ER 178.

[15] Citing IRC v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1981] 2 All ER 93 (HL) per Lord Roskill.

[16] At [32], citing Tauafaeteau v Supervisor of Elections [2015] TOSC 12 at [12].

[17] Helu, supra, at [33], citing Karalus v Royal Commission of Inquiry into the sinking of the MV Princess Ashika [2010] Tonga LR 133 at [8], [9].

[18] Citing Judicial Review of Administrative Action [de Smith] para 1-032.

[19] Citing Elias CJ and Arnold J in Ririnui v Landcorp Farming Limited and others [2016] NZSC 62 at [1].

[20] At [24], citing ‘Constitutional and Administrative Law in New Zealand’ by P A Joseph, 4th Ed at 22.5, page 873.

[21] At [25], citing Council of Civil Service Unions v Minister for Civil Service [1985] AC 374; Minister for Arts v Peko-Wallsend Ltd (1987) 75 ALR 218, 225-227; Aye v Minister for Immigration and Citizenship [2010] FCAFC 69; (2010) 187 FCR 449; South Australia v O’Shea (1987) 163 CLR 378, 389.

[22] At [28], citing Couch v Attorney General [2010] NZSC 27; [2010] 3 NZLR 149 at [161].

[23] Also reported at [1996] Tonga LR 227.

[24] When the Assembly has been convoked the Premier shall make all arrangements as to the arrival and departure of the members of the Legislative Assembly and the Assembly shall have the power to make such provision as it thinks fit for the members during the session.

[25] [1987] LRC (Const) 240

[26] Citing Stockdale v Hansard [1839] EngR 139; (1839) 9 Ad & El 1; Bradlaugh v Gossett [1884] UKLawRpKQB 20; (1884) 12 QBD 271.

[27] British Railways Board v Pickin [1974] UKHL 1; [1974] 1 All ER 609, per Lord Reid at p. 614 and Lord Morris at p. 619 applied.

[28] E.g. see Touliki Trading Ltd v Fakafanua [1995] Tonga LR 8 and the other decisions above.

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