Secretary for Foreign Affairs v The Public Services Commission [2024] TOSC 47; CV 7 of 2024 (12 July 2024)

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

CV 7/2024

In the application [1] to lift the Interim Injunction, and [2] hearing of the objection for leave to Produce Discovered Documents

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 AFFAIRS
- DEFENDANTS

ORDERS MADE BY: COOPER J
DATE OF ORDER: 12 JULY 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. By consent, the discovered documents the Plaintiff seeks to rely on will be made available at trial, their admissibility to be ruled upon.
3. Costs are reserved to the conclusion of the case.
   

REASONS FOR RULING

Background

1. On 12 April 2024 this Court granted an interim injunction, until further order, in the following terms
   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. The trial of the judicial review was listed as a substantive hearing on 10 June 2024.
3. Regrettably, that date had to be vacated, through no fault of either party, but because this Court no longer had capacity to then hear the case. It is now to be listed for trial 30 September 2024.
4. That listing was set on 5 June 2024, following an urgent hearing as soon as the problems with listing of the trial became apparent.
5. On that date, Dr. Harrison KC for the Defendants, indicated he wished the matter of the interim injunction be revisited, in the light of the change of circumstances, namely the delay in hearing the substantive matter.
6. Accordingly, Directions were set for service of submissions and further affidavit evidence, as the parties considered necessary.
7. The application to review the interim inunction was then heard 20 June 2024, Mrs Dana Stephenson KC appeared for the Plaintiff, Dr. Harrison KC via AVL, his junior Ms. Rose Kautoki present in Court, representing the Defendants.
8. For the sake of clarity, I repeat some of the background to the granting of the interim relief on 12 April 2024.
9. On 19 February 2024, a Statement of Claim was filed on behalf of the Plaintiff applying ex parte for leave to commence judicial review proceedings (the Application for Leave) and an interim injunction (the Injunction).
10. 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 (the Ministry) and recruiting a Chief Executive Officer to that role.
11. Further, it was alleged that the Second Defendant, the Minister had acted ultra vires in appointing an Acting Chief Executive Officer (Acting CEO) to that role.
12. The decisions and actions of the Third Defendant, in purportedly filling the role of Acting CEO, were also allegedly ultra vires.
13. In support was filed an affidavit by the Applicant and a Memorandum of Applicant’s Counsel, both dated 1 February 2024.
14. A Supplementary Affidavit by the Applicant dated and filed 12 February 2024.
15. On 16 February 2024 Acting Chief Justice Tupou KC granted leave to commence the judicial review in the terms applied for.
16. Her Honour also granted an ex parte interim injunction restraining the Defendants from taking any steps as described in paragraphs (i) and (ii) above, 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.
17. 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.
18. Affidavits and submissions were served by both parties leading up to the hearing 28 March 2024.
19. Suffice it to say, each side set out there competing arguments, those I summarised in my Ruling 12 April 2024.
20. Matters have moved on since then.
21. Before me the submissions have not only been refined but also provided further details to support the opposition and urge upon the Court to review the matters afresh.
22. Filed 11 June 2024 on behalf of the defendants, opposing the continued interim injunction, were
    • The affidavit of Ms. Telesia Kaitapu, Head of the Immigration Division of the Ministry of Foreign Affair, attached thereto annexures “A” to “E”, sworn 11 June 2024.
    • The affidavit of Paula Pouvalu Ma’u, Chief Secretary and Secretary to Cabinet, sworn 11 June 2024.
    • Submissions of Dr. Harrison KC.
23. On behalf of the Plaintiff, filed on 19 June 2024 were
    • The affidavit of Ms. Toakase Palelei, with a single annexure, “A”, that ran to 27 pages, sworn that same date.
    • The affidavit of Viliami Malolo, Secretary of Foreign Affairs (SECFO), attached thereto his annexure “A”, which is 48 pages long. Likewise it was sworn 19 June 2024.
    • Supporting argument of Counsel, Mrs Stephenson KC.
24. I hasten to note this, the application by the defendants is directed at the second order of interim relief, that the prohibition upon Paula Pouvalu Ma’u taking up the role of Acting CEO, be lifted.

Defendants’ application

25. That argument has two components
26. It is argued under the headline of “significant developments” and divides neatly into two parts.
    • The actions of the Plaintiff are causing significant disruption to the workings of the Ministry
    • Further, the Plaintiff’s case has materially shifted.
27. The first limb of this submissions relies on the affidavit evidence, the second is substantially based on Counsel’s insight and observations on the Plaintiff’s case.
28. Miss Kaitapu deposed that the works of the Immigration Division have suffered, the public have been deprived a proper service. For example passports have not been issued in a timely fashion.
29. Further, the Plaintiff has restricted the use of the passport and visa printing machinery to just 10.00 am and 2.00 pm daily and then under “strict supervision” of technicians.
30. There has been installed CCTV to monitor these activities and that is alleged to be oppressive and “bullying” that threatens the “...staff’s mental wellbeing.” Attempts to meet and discuss with the Plaintiff have not been met with a response.^[1]
31. Further her salary being withheld was unexplained and unreasonable.
32. Moreover, adverts for new positions in the Ministry were advertised without her being made aware, she was invited to sit in on the interviews, but only to observe.
33. Ms. Kaitapu was excluded from consultation on the Ministry Corporate Plan. She had submissions she already had shared with Acting CEO Paula Ma’u. the Corporate Services Division (CSD) have not responded to her staff and budgeting proposals. All this adds up to a disrupted and confused work environment and is counterproductive to the running of this arm of the Ministry.
34. Ms. Kaitapu also makes wider allegations in that she alleges the Plaintiff has failed to respond to applications for overseas travel. She deposes that she has “felt” a lack of trust on the part of the Plaintiff towards her.
35. Moving on, Mr. Paula Ma’u deposed the core functions of the Ministry were suffering.
36. The Plaintiff has “...failed to provide foreign police guidance to the Government of the Kingdom of Tonga.” Essentially the upshot is said to be “...public servants from other Ministries...” are left to assist the Prime Minister.
37. No proper briefings on Foreign Affairs engagements have been provided by the Plaintiff to the Prime Minister.
38. The Plaintiff has failed to attend meetings when these were required. This has caused a lack of crucial input from the Ministry to the Government.
39. The up-coming 53^rd Pacific Forum Leaders’ Meeting has not been properly attended to by the Plaintiff for amongst other reasons that he has missed meetings.
40. The work of Embassies and Missions is not properly attended to. He has frustrated correspondence with over-seas counterparts who, relevantly, are Pacific Communities who assist Tonga and do so in “many technical projects.”
41. In a nutshell, the Plaintiff is frustrating the work of Government at large.

Plaintiff’s response

42. Counsel for the Plaintiff presented a back-to-basics approach in response to the objections to lifting the interim relief.
43. The argument starts by referring the Court to the test it must engage with
    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 ?^[2]
44. The Plaintiff’s claim is said to

“...engage, at a minimum ...

The fact and nature of His Majesty’s prerogative power...pursuant to clause 39 of the Constitution...

Whether, by operation of section 27 of the [Public Services] Act ...the obligation...to appoint a Chief Executive Officer is subject to the Plaintiff’s appointment made pursuant to clause 39 of the Constitution....

45. The nature and legal effect of the contract of employment dated 20 August 2020.”
46. It is submitted that, in addressing the Balance of Convenience limb, the Court needs to consider that the Plaintiff has been SECFO since 2019, appointed by His Majesty the King. It is submitted Paula Ma’u neither has the experience nor mandate to interact or engage with diplomatic missions.
47. It is argued Paula Ma’u would not have the time to devote to the role of Acting CEO, given he is also Chief Secretary and Secretary for Cabinet.
48. Further his role, as a member of the Government Procurement Committee, means the apparent problems of the manner of conducting the Falemaka refurbishment project would not make for transparent, therefore appropriate governance.
49. The Plaintiff’s cooperation with Government is evident from the Ministry of Foreign Affairs Corporate Plan 2024/2025 – 2026/2027 (The Corporate Plan).
50. The stabilising of the Falemaka project, the reduction in excessive costs and unjustifiable aspirations was under his leadership.
51. In making those submissions, Counsel for the Plaintiff was referring to the further affidavit evidence.
52. Miss Toakase Palelei’s affidavit noted the claims of Ms. Kaitapu about unpaid overtime did not take account of the correct instructions in planning for and approving over-time.
53. That Paula Ma’u appeared to be trying to give retroactive approval and that was not possible under the relevant Instructions, paragraph 33.
54. Therefore to claim that the CSD was acting contrary to Cabinet’s decision was a misapprehension as to the scope of what the Instructions properly allow.
55. The withholding of part of Ms. Kaitapu’s salary was because of unauthorised absenteeism.
56. The Falemaka contract was for the refurbishment of the a building referred to as the “Old PMO Office”. Annexed to Miss Palelei’s affidavit is the May 2024 Project Status Report (the Report) on that refurbishment project.
57. The affidavits of both Miss Palelei and Viliami Malolo set out how the project was signed off by Viliami Malolo. How the Minister allegedly took over the running of the project, during which time there were significant changes to the project and its scope.
58. The Report sets out how there was a “contract variation” and “Cost Overrun” which has increased the projects costs from the original T$ 1,001,820.85 to T$ 2,560,220.93.
59. It is suggested that some significant increases in costs were for facilities that were unwarranted and a waste of public funds. It is further suggested that over T$430,000.000 from one single donor was inappropriate for reasons of the need to maintain a proper balance with all those who engage with the Ministry .
60. The Plaintiff has set out how the project came back under control when the Acting CEO was suspended and he regained control of project.
61. He deposed to the fact he had saved approximately T$800.00.00 in negotiating with the Contractor to avoid unnecessary costs.
62. In respect of the suggestion that the Passport printing within the Ministry has been improperly taken over by him in the manner it is run and administered, he rejects that.
63. The Plaintiff deposed the Passport printing machine broke down and he became aware of that 26 April 2024. By 29 April he was meeting relevant Officers to provide a replacement. The IT technicians, that day, identified the staff were not using the machine correctly, the maintaining of the right temperature and correct batch printing for its sensitive functions had not been complied to. Thus it had broken.
64. Complaints about the future use and management of the printing of Passports are off the point. The Plaintiff has rectified a significant and costly problem and sought to avoid its recurrence.
65. The Corporate Plan of itself reflects the Plaintiff’s positive engagement with Government.

Application to produce Discovered documents

66. This had been a contested issue, but during the hearing 20 June 2024, Dr. Harrison KC took the view that rather than argue about that material going before the Court, he would drop that objection and deal with the validity of that material on submissions at trial.
67. Accordingly an agreed position was reached, as reflected in the Orders.

Discussion

68. I remind myself that, at this stage, none of the evidence has been tested by cross-examination.
69. Dr. Harrison KC identified some arguments the Plaintiff deployed as “putting the cart before the horse”. That Paula Ma’u may well make time, or adopt different roles to accommodate his being Acting CEO, or would no-doubt wish to make sure his appointment did not clash with any other roles he would have, are valid arguments. What he decides in the future is conjecture, to speculate as to that would just be guess work.
70. I agree with those submissions. I am unpersuaded that I ought take account of those arguments from the Plaintiff and I put them firmly out of my mind.

Serious Question to be Tried

71. In his oral submissions, Dr. Harrison KC did not meet head-on with and argue against the points made in the submissions on behalf of the Plaintiff^[3] at paragraph 3.
72. Summarised above as

“...engag[ing], at a minimum ...

The fact and nature of His Majesty’s prerogative power...pursuant to clause 39 of the Constitution...

Whether, by operation of section 27 of the [Public Services] Act ...the obligation...to appoint a Chief Executive Officer is subject to the Plaintiff’s appointment made pursuant to clause 39 of the Constitution....

The nature and legal effect of the contract of employment dated 20 August 2020.”

73. I qualify that by saying I take it he rejects as not “seriously arguable” because of his attack on what he describes the “twin-claims” of the Plaintiff’s claim^[4].
74. When analysing what the scope of the issues are, I conclude each revolves around complicated arguments of fact and law.
75. That the issue of the contract, in the Defendants’ submissions, is argued over 4 pages and involves consideration of the Palelei case, the Constitution, the extent of contractual obligations and is intertwined with His Majesty’s powers, I conclude demonstrate how the arguments are both nuanced, need careful analysis, argument and presentation. Further, that they have the potential to have effects through the Kingdom, right to the heart of His Majesty’s role.
76. Which way they will be decided, is not the question before me at this stage. That whether there is a serious question to be tried is what I must address.

It is not [my] role to decide difficult questions of law that call for detailed argument and mature considerations.^[5]

77. I form the view these questions will need that level of scrutiny to be answered.
78. Addressing those questions requires interpreting one of the fundamental roles at the heart of Tonga’s Constitutional Monarchy; in a Kingdom perhaps like no other Country.
79. I am quite sure there are serious questions to be tried.
80. Damages may not be an adequate remedy given the issues involve governance both within the Kingdom and diplomatic relations and engagement between the Kingdom and other nations.

Does the balance of convenience favour the continuation of the injunction ?

81. The Defendants have effectively argued that, since the injunction was granted, there have been “major developments” in the Ministry. Those have cause disruption to a core body of Tongan Government so as to destabilise it.
82. For example :
    • The non-payment of over-time
    • Ms Kaitapu not being allowed to ask questions in the interviews for new staff
    • The passport machine breaking down
83. Further, as Paula Ma’u deposed; summarising some of his critique
    • The failure to provide guidance to Government by the Plaintiff
    • That foreign Diplomatic Missions having to work directly with Heads of Ministries, a way his of expressing that there is not joined-up Government under SECFO.
    • Or, that the Plaintiff has frustrated the correspondence from overseas counterparts. That in so doing it destabilases key Pacific Communities. Those groups are important to and have been long nurtured in Tonga’s on-going development and standing amongst its peers.
84. Firstly, I note that Paula Ma’u’s affidavit is not accompanied by any annexes that support his claims.
85. Secondly, the concerns raised in Ms. Kaitapu’s affidavit are, prima facie, comprehensively dealt with in the responses of both the affidavits for the Plaintiff.
86. I pause to note, Ms. Kaitapu’s allegation she was “only invited to sit in and observe the interview process” of candidates for roles in the Immigration Division, which she is Head of; she made reference to in her annex D; an email to her on the subject of “MFA Recruitment – Wednesday 15 May 2024”.
87. What the email in fact stated was

“...you may attend the interview to observe and if you have any questions, that it (sic) may be collaborated amongst the panel members and yourself before each interview commences, that is if you will attend.”

88. That appears to me to be different from the complexion Ms. Kaitapu chose put on the arrangement, in her sworn affidavit.
89. Moving on, the claims concerning the Falemaka project, on the face of it, are troubling. There was the Report commissioned on the status of the project.
90. Prima Facie, the Plaintiff has brought the project under control, saved substantial amounts of money and in so doing, negotiated a difficult situation to a successful outcome; all the while with the interests of the Kingdom at heart. There was no argument put before me to suggest his claims were misguided or wrong.
91. What the Plaintiff deposed concerning the passport machine issues, equally appear reasonable and that he acted swiftly and professionally, in fact in keeping with proper management of the situation; that was not argued against either.
92. I grant that in both cases Dr. Harrison KC, quite rightly and fairly made the point that the material had been filed 19 June 2024, the day before the hearing. Though, that was within the timetable I set with both parties and neither side demurred.
93. In returning to a key consideration in granting the injunction in April 2024; that Diplomatic engagement with the Kingdom of Tonga would be allowed to follow a pattern, already established over a number of years. That has not been challenged in the application to maintain/discharge the injunction.
94. Instead the “new developments” were pleaded in opposition. The argument being they have shifted the balance of convenience.
95. On the material before me, I am persuaded the balance of convenience lies in maintaining the injunction, for the reasons set out above.

Does the overall justice of the case favour the continuation of the injunction ?

96. This question has societal dimensions. I am quite sure to maintain channels of diplomatic engagement and hierarchy in a Ministry, which have been in place for some years and are so recognised at home and abroad, at this stage, are essential.

Conclusion

97. I grant and so maintain the injunction, in the terms of the 12 April 2024 Order of this Court.
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. By consent, the discovered documents the Plaintiff seeks to rely on will be made available at trial, their admissibility to be ruled upon.
3. Costs are reserved to the conclusion of the case.
   

SUPREME COURT	COOPER J
NUKU’ALOFA	12 JULY 2024

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^[1] Paragraphs 2 to 10 affidavit Ms. Kaitapu.
^[2] As summarised by Paulsen LCJ in Atenisi v TNQAB CV 13/2018 at paragraph 18
^[3] Dated and filed 19 June 2024.
^[4] Written submissions for the Defendants dated 11 June 2024, filed 12 June 2024, paragraph 14.
^[5] American Cynamid Co v Ethicon Ltd [1975] UKHL 1