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Fifita v Public Services Commission [2024] TOSC 31 (27 May 2024)

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


CV 3/2024


MARY MAGDALENA TAFA FIFITA
PLAINTIFF


-v-


THE PUBLIC SERVICES COMMISSION
RESPONDENT


On an application to partly strike out the Defence


ORDERS MADE BY : COOPER J
DATE OF ORDER : 27 May 2024


THE COURT ORDERS THAT :

  1. The application is dismissed.
  2. Costs are to be reserved to the conclusion of trial.

REASONS FOR RULING


Background

  1. On 19 January 2024 an ex parte application for leave for judicial review and ancillary orders was filed by Counsel on behalf of Mrs. Mary Tafa Fifita ( the Plaintiff ).
  2. The Plaintiff was a long serving employee in the Public Service within the Ministry for Tourism (the Ministry). As of 11 January 2024 she was Director of the Ministry.
  3. A complaint had been made against the Plaintiff, on 11 April 2023, lodged with the Public Services Commission (PSC). This complaint had been made by Siosaia Pahulu, a Training Coordinator with the Ministry.
  4. Essentially it was an allegation the Plaintiff had given catering contracts to a firm run by her daughter and this breached the rules for awarding such contracts.
  5. The Chief Executive Officer (CEO)of the Ministry, Mr. Takau, submitted a CEO report (the Report) on the allegation, pursuant to Regulation 5 (1), Public Services (Disciplinary Procedures) Regulations (the Regulations) to PSC 29 September 2023.
  6. The core features of the report were :
  7. On 27 October 2023 the PSC wrote to the Plaintiff charging her with 27 counts of serious breaches of discipline.
  8. The Plaintiff wrote to PSC 10 November 2023 disputing all allegations.
  9. PSC wrote to her again 29 November 2023 informing her of the disciplinary recommendations made by the CEO of PSC, that in the event of the charges being proved she was liable to be dismissed from Public Service and the matter referred to Tonga Police to investigate.
  10. She wrote in response to this; 6 December 2023.
  11. On 10 January 2024 the PSC wrote to her stating their decision; number 2 of 2024 that
  12. Naturally, the ex parte application for leave was filed in tandem with a Statement of Claim. I shall turn to that in a moment.
  13. Firstly I note that the application for leave was granted in respect of all 4 Causes of Action pleaded in the Statement of Claim.
  14. Those causes were
    1. Regulation 5 (2) (i) of the Regulations provides the Report to PSC contains representations from the employee. That had not taken place. As such it was a denial of her right to be heard.
    2. The report identified that the previous CEO was aware of relevant matters to the investigation. Reference was made to his signing off the contract and being aware of the issue of conflict. There was a duty under Regulation 5 (2) (j) for his evidence to form part of the Report. It had not. That made the report biased.
    3. In his report Mr. Takau had recommended that the Plaintiff be demoted and/or given a final warning. Yet the Regulations specify that the report must not contain recommendations pursuant to the allegation; Regulation 5 (2) (l) (i). As such the CEO of PSC took into account material that was irrelevant.
    4. The Plaintiff was not given the right to be heard by PSC on the allegations they laid against her. This amounted to procedural impropriety and thus the decision was unlawful.
  15. A statement of Defence was filed 5 March 2024.
  16. Paragraphs 28 to 30 referring to the like numbered paragraphs in the Statement of Claim were pleaded in this way:

28. The Defendant admits paragraph 28.

29. The Defendant admits paragraph 29, only to the extent that it was sanction recommendation by made by Mr. Takau, but denies that such recommendation was taken into account and improperly relied upon by the Defendant when it considered, and made decision on the appropriate sanction for the Plaintiff.

30. The Defendant admits paragraph 30, only to the extent that it was an irrelevant recommendation of sanction made by Mr Takau in his CEO Report, but denies that such recommended sanction was taken into account and improperly relied upon by the Defendant when it considered, and made decision on the appropriate sanction for the Plaintiff. Indeed, the defendant considered and decided otherwise, that the appropriate sanction for the Plaintiff was dismissal from the public service.

  1. On 13 March 2023 a Memorandum on behalf of the Plaintiff was filed indicating their intention to apply to strike out the pleaded defence to the Third Cause, on the basis that

“The plain admitted fact that the recommendation was included in the CEO report is, in itself, a clear breach of the Regulation 5 (2) (1) (i) proviso. The consequence is that all the subsequent disciplinary actions taken by the Defendant based on a flawed CEO report were infected with procedural irregularity.”[1]

  1. On behalf of the Defendant, Solicitor General Mr. Sione Sisifa, filed a Memorandum 14 March 2024 highlighting the ratio of Van Soest v Residual Health Management Unit [2001] 1 NZLR 179, 182

“It is common ground that the claim is not to be struck out unless it is so clearly untenable that it could not possibly succeed even after amendment in a manner proposed by the plaintiff, and on the assumption that all the facts alleged in the statement of claim can be proved true...”

  1. Thereafter the Memorandum stated there would be an amended Statement of Defence filed. That was filed 22 March 2024.
  2. The relevant sections stated :

28.The Defendant admits paragraph 28, only to the extent that, that is what regulation 5(1)(i) states, but denies, that the proposed recommendation submitted in this case invalidates Mr. Takau's CEO Report.

29. The Defendant admits paragraph 29, only to the extent that it was sanction a proposed recommendation by made by Mr. Takau that was subject to an advice from the PSC, but denies that such recommendation invalidates Mr.Takau's CEO Report upon the following grounds:

a. The proposed recommendation made by Mr Takau in his CEO Report was subject to an advice sought from the PSC;

b. The proposed recommendation subject to PSC advice that was submitted by Mr. Takau in his CEO Report was not addressed by PSC because the proposed recommendation is not a requirement in a CEO Report pursuant to Regulation 5(1)(i);

c. The proposed recommendation subject to PSC advice that was submitted by Mr. Takau in his CEO Report was not addressed by PSC as advanced in sub-paragraph b above, and not taken into account as either relevant/irrelevant consideration, and improperly relied upon by the Defendant when it considered, and made decision on the appropriate sanction for the Plaintiff.

30. The Defendant denies paragraph 30, states in response that the recommendation made by Mr. Takau did not invalidate his CEO Report due to the grounds advanced in response in paragraph 29 above, and further adds that the recommendation only to the extent that it was a irrelevant recommendation of sanction made by Mr Takau in his CEO Report,but denies that such recommended sanction was not taken into account and improperly relied upon by the Defendant when it considered, and made decision on the appropriate sanction for the Plaintiff. Indeed, the defendant considered and decided otherwise, that the appropriate sanction for the Plaintiff was dismissal from the public service.

The Application to strike out

  1. On 24 April 2024 Plaintiff’s Counsel filed submissions on the application for the partial strike out of the amended Statement of Defence.
  2. The Defendant’s submissions in opposition were filed 26 April 2024.
  3. On 9 May 2024 the parties appeared before me to hear the application. They presented their oral submissions based on all the material filed, by the very nature of the application, its focus was in respect of the Third Cause of Action pleaded in the Statement of Claim.

Applicant’s submissions

  1. On Behalf of the Plaintiff it was argued that the starting point is Regulation 3 (1) the Regulations.
  2. That is a determination by the CEO of whether the breach was minor or serious.
  3. The defence then set out a submission that the view of the CEO on the Regulation 3 (1) issue was the determinative logic for the scope of the material a CEO could include in a report under Regulation 5, which is to say when the alleged misconduct is said to be serious in nature.
  4. The Regulation 5 (2) (a) to (l) criteria for the material the CEO report must follow, was both mandatory, and also imbued with a particular logic. The CEO role in an alleged serious misconduct allegation had to be neutral.
  5. An allegation of a serious breach was to be without the scope of CEO’s recommendations as the CEO’s role in the report was just the presentation of the material set out at Regulation 5 (2) (a) to (l).
  6. Likewise, Regulation 5 (2) (l) (i) was mandatory.
  7. The CEO was prohibited from making

“....any recommendations regarding the allegations...”[2]

  1. Mr. Takau’s report had done exactly that, and the defence were forced to concede it.
  2. Those recommendations were punitive in nature and thus implied that the CEO had formed a view Mrs. Fifita was guilty of the alleged serious misconduct.
  3. Judicial review is an enquiry into the process, not the final decision.

The submissions for the defence

  1. ‘Amanaki v Government of Tonga & ors CV 9/ 2019 was the touchstone for approaching the application. The defence relied on this particular part of that ruling

13. In Sevele-'O-Vailahi v Kingdom of Tonga [2019] TOSC 18 at [18] ff, Paulsen LCJ

recited the following well-established principles on strike out applications from his

earlier decisions in Friendly Islands Satellite Communications (Tongasat) Ltd and

others v Pohiva and others and Pacific Games Council v Kingdom of Tonga, Paulsen

LCJ):


(a) A strike-out application proceeds on the assumption that the facts pleaded in the

statement of claim are true. This is so even though they are not or may not be

admitted. However, the assumption will not extend to pleaded allegations which

are entirely speculative and without foundation or contrary to otherwise

uncontroversial facts which are already before the Court.


(b) Before the court may strike out proceedings the causes of action must be so

clearly untenable that they cannot possibly succeed even after amendment in a

manner proposed by the plaintiff. The statement of claim must be beyond repair.

It must be plain that even if it is reformulated the claim cannot succeed.


(c) The jurisdiction is one to be exercised sparingly, and only in a clear case where

the court is satisfied it has the requisite material to safely make a decision. The

case should only be precluded from proceeding where it is so certainly or clearly

bad and the court must be particularly careful in areas where the law is confused

or developing.


(d) The fact that applications to strike out raise difficult questions of law and require

extensive argument does not exclude jurisdiction.


14. To those may be added the following:


(a) It is an important principle that every (person) is entitled to his or her day in

court: Kaufusi v Kingdom of Tonga [1999] TOCA 8.


(b) No party should have his claim denied without a hearing in the ordinary way,

except where the claim is so hopeless that it cannot possibly succeed. ... If the

(plaintiff) has a cause of action which may possibly succeed he is entitled to

pursue it: Jagroop v Soakai and the Kingdom of Tonga [2001] Tonga LR 234 at

236. See also Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1970) 122 CLR

628 at 631.


(c) The power to strike out a claim is one that should be used sparingly and only in

the clearest case but, when such a case arises, the defendant is entitled to an order:

Fonua v Taufateau [2003] TOCA 5 at [15].


(d) If the Court is left in doubt whether a claim might lie, or if disputed questions of

fact arose, the case must go to trial. If the claim depends on a question of law

capable of decision on the material before the Court, the Court can determine the

question even though extensive argument might be necessary to resolve it:

Cauchi v Air Fiji [2005] Tonga LR 154.


(e) The crucial decision a court must make is whether on the facts pleaded the

plaintiff's alleged claim is sustainable in principle. That decision can be resolved

only by close scrutiny of the pleadings: Faingata'a v Westpac Bank of Tonga

[2010] Tonga LR 63.


(f) A ‘reasonable cause of action’ means one with some chance of success if regard is

had only to the allegations in the pleadings relied upon by the claimant: Stafford v

Automotive Distributors Ltd [2018] FCCA 2768.

(The footnotes have not been omitted)

  1. With all that in mind, it was submitted to be highly relevant that the Defendant denied the recommendation in the CEO report had in any way influenced the PSC decision.
  2. Effectively it was a ‘proposed recommendation’ and not a recommendation as such.

Discussion

  1. The allegation that forms the Third Cause of Action is as set out in the Statement of Claim.
  2. The defence in the Amended Statement of Defence challenges the causation alleged therein.
  3. That is to say, whereas it is admitted the recommendation in the Report was a breach of Regulation 5 (2) (l) (i), what is further alleged is it influenced the PSC decision

“...the CEO Report contained irrelevant information which the PSC took into account and improperly relied upon in taking the disciplinary action against [the Plaintiff] which culminated in her dismissal....”

  1. To understand the strike out application, I must relate the principles to the pleaded Cause of Action to analyse whether the defence is

“...so clearly untenable [it] cannot possibly succeed....”

  1. To put it differently, has the admission to the inclusion of the recommendation in the CEO Report been an admission to the whole of the pleaded Third Cause of Action?
  2. I conclude the admission does not go that far. It refutes the causal link pleaded in the Third Cause; the recommendation, the defence aver, was not taken into account in the PSC’s final decision.
  3. The effect of that denial is to make the issue as to whether the recommendation influenced the PSC decision a matter in dispute as between the parties.

“...if disputed questions of fact arose, the case must go to trial.”[3]


Conclusion

  1. I dismiss the application.
  2. Costs are to be reserved to the conclusion of trial.
SUPREME COURT
27 MAY 2024
NUKU’A LOFA
COOPER J

[1] Memorandum, 13 March 2024, paragraph 6.
[2] Regulation 5 (2) (l) (i)
[3] ‘Amanaki v Kingdom of Tonga & ors, ibid [14 (d)].

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