Secretary for Foreign Affairs v Public Services Commission [2024] TOSC 10; CV 7 of 2024 (12 April 2024)

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

CV 7/2024

THE SECRETARY FOR FOREIGN AFFAIRS
PLAINTIFF

-v-

[1] THE PUBLIC SERVICES COMMISSION
[2]THE MINISTER OF FOREIGN AFFAIRS
[3] PAULA MA’U in his capacity as ACTING
CHIEF EXECUTIVE OFFICER OF THE
MINISTRY OF FOREIGN AFFARIS
DEFENDANTS

ORDERS MADE BY: COOPER J
DATE OF ORDER: 12 APRIL 2024

THE COURT ORDERS THAT:

1. Until further Order of the Court:
   1. The First Defendant, its servants or agents, are restrained from proceeding to advertise and recruit a Chief Executive Officer of The Ministry of Foreign Affairs; and
   2. The Third Defendant’s appointment as Acting Chief Executive Officer of the Ministry of Foreign Affairs is suspended.
2. Costs are reserved to the conclusion of the case.
   

REASONS FOR RULING

Background

1. On 19 February 2024, Statement of Claim was filed on behalf of the Plaintiff applying ex parte for leave for leave to commence judicial review proceedings (the Application for Leave) and interim injunction (the Injunction).
2. The Application for Leave related to the claim that the First Defendant, the Public Services Commission (PSC) had in their decision of 20 October 2023 acted ultra vires in creating the position of Chief Executive Officer (CEO)to the Ministry of Foreign Affairs and recruiting a Chief Executive Officer to that role.
3. That the Second Defendant, the Minister had acted ultra vires in appointing an Acting Chief Executive Officer (Acting CEO) to that role.
4. The decisions and actions of the Third Defendant in purportedly filling the role of Acting CEO were allegedly ultra vires.
5. In support of this was filed an affidavit by the Applicant and a Memorandum of Applicant’s Counsel, both dated 1 February 2024.
6. A Supplementary Affidavit by the Applicant dated and filed 12 February 2024.
7. On 16 February 2024 Acting Chief Justice Tupou KC granted leave to commence the judicial review in the terms applied for.
8. Also was granted an ex parte interim injunction restraining the Defendants from taking any steps as described in paragraphs 2 to 4 of this ruling, until 4 pm 25 March 2024. Further, a time table was set for service for filing of any opposition to interlocutory injunction with accompanying affidavits and submissions.
9. On 8 March 2024, Counsel on behalf of The First, Second and Third Defendants filed a notice of opposition and Submissions opposing the continued interim relief.
10. This was accompanied by the following material in support of their opposition:
    • The Affidavit of Victoria Laukauo’uli Kioa, The Chief Executive Officer of PSC, with accompanying annexes “A” to “T”.
    • The Affidavit of Hon. Fekitamoeloa Katoa ‘Utoikamanu, The Minister for Foreign Affairs, with accompanying annexes “A” to “T”.
    • The Affidavit of Paula Pouvalu Ma’u, The Chief Secretary to Cabinet and Acting Chief Executive Officer of The Minister for Foreign Affairs, with accompanying annexes “A” to “F”.
    • The Affidavit of Telesia Kaitapu, Head of the Immigration Division of The Minister for Foreign Affairs, with accompanying annexes “A” and “B”.
11. In response, all filed 18 March 2024, was the Plaintiff’s submissions in reply, in support of which, it was accompanied by:
    • The Applicant’s further affidavit, accompanied by annex A.
    • The Affidavit of Toakase Palelei, Deputy Secretary of Foreign Affairs, accompanied by annex A.
12. On behalf of the Defendants there was then filed
    • A further Affidavit of Victoria Laukauo’uli Kioa, annexed thereto Exhibits “A” to “C”.
    • A further Affidavit of Hon. Fekitamoeloa Katoa ‘Utoikamanu
13. The Hearing of 25 March 2024 was adjourned while the matter was passed to my docket.
14. The Submissions in relation to the application to extend the interim injunction were listed before me 1000 hrs 28 March 2024.
15. Counsel for the Defendants provided notes of those submissions; a precisé and a bundle of authorities.
    

The statement of claim

First cause of action

16. Section 13 (1) the Public Services Act requires a Ministry in schedule I of the Act to have a CEO appointed by the PSC.
17. The Ministry is listed in Schedule I
18. Schedule II lists those people the Act does not apply to and includes the Secretary for Foreign Affairs (SECFO).
19. Section 27 of the Act provides that the provisions of the Act are subject to the Constitution.
20. Clause 39 of the Constitution empowers the King to appoint his “representatives to other nations according to the custom of other nations.”
21. SECFO was appointed by the King to a role that encompassed diplomatic functions. To appoint a CEO would impinge on the role of SECFO and therefore impede His Majesty’s prerogative right pursuant to the Constitution, and so is ultra vires.

Second Cause

22. Because the Plaintiff’s duties encompass those of a CEO appointing a CEO duplicates the functions catered for by the appointment of SECFO; so is ultra vires.

Third Cause

23. Appointing an Acting CEO likewise duplicates tasks and functions already allocated to, and undertaken by, SECFO and is therefore ultra vires; there being no vacancy that needed filling.
    

Fourth Cause

24. Appointing an acting CEO, who in turn has functions that include diplomatic duties, usurps and impinges upon His Majesty’s prerogative to appoint a diplomatic officer, pursuant to the Constitution, so is ultra vires.

Fifth Cause

25. The appointment of Acting CEO is unlawful and so his functions can have no legal effect.

Defendants’ submissions

26. These can be summarised in this way.
27. The defendants make two preliminary points by way of defence and set out their arguments why the test for the imposing an injunction must fail.
28. They are these:
29. There was no urgency that allowed the Plaintiff to make an application for an ex parte injunction, a basic requirement as set out Order 11, Rule 1(3) and (4) Supreme Court Rules.
30. The Defendants rely on the duty imposed in United People’s Organisation (Worldwide) Inc v Rakino Farms Ltd(No.1); Matich v United Building Society.

“heavy onus on a party applying ex parte to observe good faith and to make full disclosure of material facts.”

31. The Defendants point to the fact that the Plaintiffs did not disclose how the judgement in Palelei v Public Services Commission (Palelei) “flatly contradicts the plaintiff’s case” ^[1]
32. In Fusitu’a v Tei^[2], Scott J noted :

“Where an interim injunction is applied for all the facts must be laid before the Court and nothing supressed otherwise the order may be set aside without regard to the merits.”

33. Turning to the test to be applied in deciding whether to impose an injunction, and, (rightly) noting it is not for the Defendants to establish why the injunction should be dissolved, but for the Plaintiff to persuade the court it ought to continue, they set out their arguments to submit the test has not been met.

No serious question to be tried

34. The essence of the submissions can perhaps be summed up in this way:
35. Firstly, the contract that SECFO is employed by is unlawful. Therefore, he has no right to the duties of SECFO and so his claims fall away in toto.
36. This is because Lord Dalgety KC signed off on the contract and had no power to so do pursuant to Privy Council resolution 28 November 2011, paragraph 2 as was claimed.
37. Secondly the purported appointment of SECFO does not confer diplomatic functions upon him as Clause 39 is limited to appointments made in respect of “representatives to other nations according to the custom of nations”. That is a clear reference to diplomatic posting overseas.
38. Thirdly, the invalidity of the contact between the Kingdom and SECFO is one strand of the inability of the Plaintiff to bring this action, even so, it could not confer him with the authority, or roles, of CEO of the Ministry. Further, the contract if valid (which is denied) could not ‘trump’ the provisions of the Public Services Act, so as to replace the statutory imperative for the appointment of a CEO.
39. The Plaintiff’s claims are of such a general nature that damages could not be said to attach to them. “Confusion”, “potential embarrassment” ring hollow. In any event, those claims are denied.
40. The Privy Council Memorandum takes matters no further. The stated “confusion” unspecified and the document of little, if any, worth, when considering the issues.
41. The affidavits of the Defendants’ rebut these claims. This was spoken to in some detail in submissions.

The Balance of Convenience and the Justice of the Case

42. The ruling in Palelei mandates the appointment of a CEO.
43. The Public interest principle must apply; wherein

The overarching considerations that to ensure societal and legal stability, it is generally in the public’s interest that decisions of public authorities are respected until dealt with before the court.^[3]

44. That the argument concludes with the submission of disentitlement to further relief, because of the alleged lack of candour in the Plaintiff’s ex parte application, so neatly rounds off their submissions.

Plaintiff’s response

45. Firstly, there was no breach of the duty on full disclosure. The Defendants’ lawyer, Mr. Sisifa, appeared in Palelei so all the ramifications of that ruling were know.
46. In any event it was the absence of a report that complied with Regulation 5, Public Service (Disciplinary Procedures) Regulations, that Palelei turned on, not that there was no CEO to the Ministry.
47. Significantly, the ruling in Palelei relied heavily on Consent Orders. These Consent Orders are not mentioned in the Defendants’ submissions nor any affidavit.
48. The importance of this is that the court in Palelei did not test any evidence in reaching its conclusion. This is a material omission in the Defendants’ submissions. In so omitting this significant detail, the Defendants, which is to say the Government, have not conducted themselves as model litigants.
49. The Court’s role, at this stage, is not to resolve conflicts in the evidence on affidavit.
50. Inter alia the Corporate plan and Budget 2022-2023 to 2024/2025 amply demonstrate the Plaintiff may be thought to have had the function of a CEO.
51. The 2017 legal advice of Acting Attorney General Mr. ‘Aminasi Kefu was that Clause 39 of the Constitution mandated his Royal Majesty to make the appointment of representatives to other nations; so Lord Privy Seal, Viliami Malolo, to the role of SECFO.
52. The Plaintiff even had that advice confirmed by the current Attorney General. He was doubly entitled to rely on it and act accordingly.
53. In Palelei, Mr. Sisifa told the court that the Secretary for Foreign affairs

“is the person in putative charge of the administration of the Ministry.”

54. The discord in the Ministry is real and damaging.

Discussion

Urgency

55. At the heart to the Plaintiff’s claim is that diplomatic functions between other nations and the Kingdom of Tonga are not operating as they should.
56. This is underlined by the 2017 advice of Mr. Kefu that paved the way for SECFO to have a legitimate expectation he would hold a position that equates to CEO of the Ministry of Foreign Affairs.
57. The Privy Council Memorandum 125/2023 speaks of

“timely legal remedies, including Court proceedings, be considered forthwith to clarify the correct position”

(emphasis added)

Thus it is posited, a clear need for swift action by the Plaintiff.

Breach of full and frank disclosure

58. There are competing arguments set out in support and opposition.
59. The hearing, 25 March 2024, was inter parte. The position in relation to the Palelei decision was clear when the hearing commenced and the parties expanded upon their competing arguments.
60. The Court is making an assessment on the basis of the test both sides acknowledge apply, as set out fully in the Defendants’ arguments and most succinctly in their paragraph 3 submissions, filed 8 March 2024.
61. As summarised by Paulsen LCJ in Atenisi v TNQAB CV 13/2018 at paragraph 18 they are
    
    1. Is there a serious question to be tried?
    2. Does the Balance of convenience favour the granting of the injunction?
    3. Does the overall justice of the case favour the granting of the injunction?
62. Effectively this is a de novo hearing.
63. It is inherent in the Plaintiff’s application the need for swift, so urgent action, or why else the Privy Council’s memorandum 125/2023 in the terms stated?
64. Moreover, the dispute at this level of Government, between Foreign Secretary and Ministry of Foreign Affairs, by its nature is pressing; its potential to be damaging both domestically and internationally axiomatic.
65. The claims and counter claims of lack of full and frank disclosure and whether the Defendants have acted as model litigants, seem to me to fall by the wayside when, by the time of the hearing 25 March 2024, both sides know exactly the cases law and material that apply and needs be concentrated upon.
66. The Applicants set out at paragraphs 4 to 21 of their submissions in reply, filed 18 March 2024 Therein they make their submissions why not referring to the Pelelei Ruling was not a breach of full and frank disclosure, in seeking the grant of the ex parte application.
67. The Palelei Ruling was indeed made on the basis of Consent Orders.
68. The submissions of Mr. Sisifa, in that case at 69.1 to 69.5, set out at paragraph 14, Applicant’s submissions, were indeed submissions and not evidence.
69. Any submission on behalf of the Defendants that the Palelei decision undermines their application goes to the heart of their Defence and the Counterclaim.
70. It appears to me to be closely aligned to a trial issue, so ought not to be resolve at this stage.
71. In any event, coming to the application for the first time and assessing it afresh; the competing arguments as to its relevance in these proceedings are now all before me.
72. Nothing could be said to have been withheld.
73. Accordingly, I make no finding on the submission on behalf of the Defendants that there was a breach of the need for full and frank disclosure at the ex parte stage and concentrate instead on the test to be applied.
74. The reality is that the Plaintiffs, at this stage, need to persuade me of the need for an injunction to continue, just as if there were none in place at the moment.
75. Accordingly, I am quite sure I can turn aside from that discrete argument and focus on the tests and the substance of the application at hand.
    

Serious question to be tried

76. I conclude there is a real prospect of success. The 2017 advice, its affirmation by the current Attorney General and the Budget documents all point to strong prima facie case; SECFO’s role could encompass that of CEO, why else was there no CEO hitherto.
77. The question of the validity of the Secretary for Foreign Affair’s contract has never been raised before by the Defendants.
78. The statement of Mr. Sisifa to the Court in Palelei that the Secretary for Foreign affairs

“is the person in putative charge of the administration of the Ministry.”

must also have some significance.

Balance of convenience

79. I have considered a number of factors in assessing this limb of the test.
80. The matter was felt to be so serious, at a domestic level, the Privy Council issued a memorandum, that spoke to the need for the Foreign Secretary to consider “timely” legal action “forthwith”.
81. That in appointing an Acting CEO, the status quo has recently been disrupted.
82. The on-line postings of civilised comments by diplomats in response to conferences and meetings, may only underscore their effectiveness in their roles, rather than reveal any true satisfaction in the diplomatic engagement by their Countries with the Kingdom and approval of the decision to create the new role of CEO/appoint an Acting CEO.
83. The new appointment of an Acting CEO may well have the potential to undermined the years-long established arrangements for diplomatic engagement.
84. Both sides put forward compelling arguments. In also assessing how third parties may be effected, I have in mind that this dispute has potential to effect the solidity of diplomatic arrangements and so, possibly, diplomatic ties.
85. In considering overarching considerations of societal and legal stability, I note the Plaintiff’s Action essentially is to revert to the arrangements that have been in place for some years. By its nature, that means following what has become an established practice in the Kingdom insofar as the role of SECFO.
86. At this stage, allowing that to continue seems to me to maintain constancy by reverting to the established order.
87. In assessing these factors, I conclude there is a real possibility of harm to the Secretary of Foreign Affairs in his role and standing, so as to damage him professionally if the injunction is not granted.
88. So, any question of the weight to be attached to the adequacy of an award of damages is a factor that may be overshadowed by the rights of third parties and the need for societal stability.

Overall Justice

89. I conclude both that the Applicant has demonstrated a real prospect of success and the possibility of harm to the Foreign Secretary in his appointment and role.
90. I have considered how that potential harm may resonate across international relationships the Kingdom of Tonga stives towards.
91. Drawing these strands together and exercising my discretion based on the particular facts of this case as set out, I form the view that the Court should grant the application interim relief.
    

So order:

1. Until further Order of the Court:
   1. The First Defendant, its servants or agents, are restrained from proceeding to advertise and recruit a Chief Executive Officer of The Ministry of Foreign Affairs; and
   2. The Third Defendant’s appointment as Acting Chief Executive Officer of the Ministry of Foreign Affairs is suspended.
2. Costs are reserved to the conclusion of the case.
   

SUPREME COURT	12 APRIL 2024
NUKU’ALOFA	COOPER J

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^[1] Submissions for the Defendants’ filed 8 March 2024, paragraph 12
^[2] [2015] TOSC 54 at [17].
^[3] Sevele-‘O-Vailahi v Prime Minister of Tonga [2016] TOSC 33