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Fifita v Public Services Commission [2025] TOSC 1; CV 3 of 2024 (6 January 2025)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION


NUKU’ALOFA REGISTRY

CV 3/2024


MARY MAGDALENA TAFA FIFITA

APPLICANT


-v-


THE PUBLIC SERVICES COMMISSION

RESPONDENT


Mrs. Dana Stephenson KC for the Plaintiff

Mr. Sione Sisifa, Solicitor General for the Defendant

Trial was heard 13 November 2024

Submissions were heard 14 November 2024

Ruling 6 January 2025


ORDERS MADE BY: COOPER J

DATE OF ORDERS: 6 JANUARY 2025


THE COURT ORDERS THAT:


  1. The charges against Ms. Fifita of serious breach of discipline made on 27 October 2023 are quashed.
  2. The Defendant’s decisions, number 2 of 2024, dated 9 January 2024, to dismiss Ms. Fifita from the Ministry of Tourism and to report her to the Tonga Police is quashed.
  3. Costs are reserved pending a hearing on a date to be agreed.

REASONS

Background


  1. Ms. Mary Magdalena Tafa Fifita was dismissed from her role as Director in the Ministry of Tourism on 9 January 2024.
  2. Up until then, she had been employed in the Tonga Public Service for 24 years. That career culminated in her working for Ministry Tourism and taking on the role of their Director in September 2019.
  3. When she joined that Ministry, the Chief Executive Officer (CEO) was Mr. Moala Mafi. His term came to an end in early 2023 and he was replaced as CEO by Mr. Viliami Takau in approximately April of that year.
  4. On 5 April 2023 Mr. Siosaia Pahulu, training coordinator for Ministry of Tourism emailed Koenig Tu’uhetoka in the Public Service Commission. The subject field of the email was

Complaint re MATAPA Services.

  1. Matapa Services is a company that is registered to Ms. Fifita’s daughter, Mahina Fifita, her husband also has a business interest in it.
  2. The email of 5 April 2023 stated

This is to advise that we have recently discovered some issues with regards to the above Service provider/supplier.

I believe that a formal investigation exercise is necessary...

  1. That correspondence was acknowledged by Koenig Tu’uhetoka at 1036 hrs the same day.
  2. 11 April 2023, Mr. Siosaia Pahulu sent a letter, with accompanying documents, to the Chairman of the Public Service Commission.

RE: MATAPA SERVICES


On Tuesday 21st March 2093, I received an email from Deputy CEO Mary Magdalena Fifta, reassigning myself to the Position of "Training Coordinator" for the Ministry of Tourism:


I was then particularly interested in finding out the Budget Status of the Training Unit as I was aware that there is always a reasonable portion of the Annual Budget is allocated to Training and conferences.


To my dismay, I discovered that approximately an amount of $50,000.00 was paid to the Matapa Services which is a family business Corpany registered under the name of Mahina Fonohake Lepela Fifita, a daughter of Mary Magdalena Fifita, the Deputy CEO of the Ministry of Tourism. This amount of money was paid to this Company in a period of less than a year.


I believe this is a conflict of interest and have breached the Regulations and Policies that a Senior Public Servant should uphold. It also does not befit the actions of a role model position in the Civil Service.


I have enclosed all supporting documents for your perusal and further actions.


I believe it would be appropriate to observe elements of natural justice and for you to hear Mary Magdalena Fifita's side of the story before a final decision is made...


  1. There was then sent by Mr. Siosaia Pahulu a letter dated 4 May 2023, to Commissioner, Mr. Posesi Bloomfield, Public Service Commission.
  2. In that correspondence he sent a copy of his letter 11 April 2023 and asked that his complainant against Ms. Fifita be expedited.
  3. That correspondence was then acknowledged by Mr. Bloomfield on 11 May 2023 noting that

...the Commission normally quickly decides on a course of action.

  1. Further, that all relevant parties would be notified.
  2. In fact, the Public Service Commission (PSC) has already started a procedure. A memorandum, dated 5 May 2023 (Court Book, file 2, page 256) details the meeting they had, 3 May 2023, regarding the complainant about Ms. Fifita and the use of MATAPA Services to provide the Ministry of Tourism with training sessions.
  3. That memorandum was sent to the CEO of Tourism requesting:
    1. Records of attendance and materials issued at the trainings carried out by MATAPA Services;
    2. All Purchase Orders and invoices on payments made to MATAPA Services;
    3. Process used to select MATAPA Services to provide training on behalf of the Ministry; and
    4. What were the basis for the trainings conducted by MATAPA Services.
  4. Any other information thought relevant was also asked for.
  5. There then followed a meeting of the PSC on 11 May 2023. Minutes of that meeting were kept (Court Book, file 2, page 261-263). In attendance was the CEO of PSC Mrs. Victoria Kioa and eight other colleagues, all from the PSC. The complaint against Ms. Fifita was discussed and decisions apparently reached for the next steps to be taken. One such step was that the matter was to be handed to the Charge Formulation Committee for their necessary action (Court Book, file 2, page 262; item 5.3 vi)
  6. In the meantime, the PSC memorandum of 5 May 2023 to CEO Takau had reached him and he replied to it on 17 May 2023, writing to CEO Kioa of PSC asking

...that this matter be dealt with by the Commission and in doing so with consideration and respect of the parties concerned.

  1. The Charge Formulation Committee met on 26 May 2024 (Notes of meeting; Court Book, file 2, pages 264A-264C), seemingly with the sole object of discussing the complaint against Ms. Fifita.
  2. After the Secretariat had provided the Committee with a chronology, the Committee quickly concluded that the material that had been supplied by CEO Takau of the Ministry of Tourism did not amount of a ‘CEO’s Report’; which is a necessary step pursuant to Public Service (Disciplinary Procedures) Regulations 5.1 (the Regulations).
  3. Regulation 5.1

In the case where an employee is alleged to have committed a serious breach of discipline or repeated minor breaches of discipline, the Chief Executive Officer or his authorised representative, shall inquire into the matter.

  1. The steps to be taken in compiling the CEO report are as set out at Regulation 5.2

If the Chief Executive Officer determines that there has been a serious breach of discipline, or repeated minor breaches of discipline, he shall forward a complete report to the Chief Executive Officer of the Commission, which shall include the following —


(a) the allegations against the employee;


(b) any complaint made against the employee, whether by a public servant or a member of the public;


(c) the reasons that the breach is deemed by the Chief Executive officer as a serious breach of discipline;


(d) the facts gathered from the inquiry;


(e) official records or documents relevant to the serious breach of discipline;


(f) a report from the Auditor General, if there is any;


(g) a report from the Tonga Police, if there is any;


(h) any internal correspondence with the employee relating to the serious breach, including emails;


(i) any representation from the employee;


(j) any statements from witnesses;


(k) any record of previous disciplinary cases committed by the employee; and


(l) any other document that is relevant to breach of discipline:


Provided that the Chief Executive Officer or his Ministry shall not —


(i) make any recommendations regarding the allegations; or


(ii) do anything or omit to do anything or cause another Ministry to do or omit to do anything that amounts to disciplining the employee.

  1. It was to this Regulation that CEO Kioa referred CEO Takau in her letter to him dated 6 June 2023. She was effectively steering him to the proper procedure in how to compile a CEO Report.
  2. On 29 September 2023, that CEO Report was sent by CEO Takau to CEO Kioa of the PSC. He annexed a number of documents, but in his covering letter stated that

...the facts constitute ...serious misconduct...

  1. Those Annexures (Court Book, file 2, pages 277-335) include, at Annexure 2, the notes from a meeting between CEO Tokau and Ms. Fifita.
  2. The notes are dated 4 September 2023. But there is a reference at page 2 (Court Book File 2, page 281) to an apparently contemporaneous decision by CEO Takau made “today, 22 June 2023”. Thus I conclude the meeting took place on that date.
  3. Over the first two pages of the notes it distils the complaint. Essentially that MATAPA Services were contracted with by the Ministry Tourism. They were paid, approximately TOP $55,000.00 for a number of contracts to provide courses and training to the Ministry in 2022-2023. That company is owned by Ms. Fifita’s daughter.
  4. CEO Takau recorded his concerns regarding this arrangement; the subject of Mr. Pahulu’s complaint, in these terms

Why this service contractor was involved?

Did trainings take place?

  1. It was noted by CEO Takau that Ms. Fifta explained

...she was aware of the conflicting interests due to the consultancy ownership by her husband as a co-owner, however declared to the CEO, Mr. Sione Moala-Mafi and received his endorsement.

  1. That disclosure was also the subject of an email, sent on 21 June 2023, from Ms. Fifita to “Victorina; ‘Elisapeta Fa’ui”, addressed

Good afternoon CEO

  1. Which, given the Christian name and the matters set out, must mean it was an email to CEO of PSC Victorina Kioa and the Deputy CEO, ‘Elisapeta Fa’ui.
  2. That email states (translation is provided at Court Book, file 2, page 273)

...a complaint against me... stemmed from....my conflict of interest.... I have a valid justification for my actions which were also approved by the previous CEO...

  1. CEO Takau and CEO Kioa and her Deputy were all in possession of the fact that Ms. Fifita told the then CEO of the conflict and he had nonetheless approved two of the contracts.
  2. She also told CEO Takau that when CEO Mafi had been on leave, she was acting CEO and had approved two more contracts given his earlier approval.
  3. The recommendations that conclude the meeting notes were that

The complainants’ concerns are valid and reveal an issue with the work environment and culture within the Ministry. However, Mrs Fifita has been cooperative and forthcoming with the information and the reason why the work was carried out. She had expressed her conflict with the CEO at the time and received his approval given the fact that the former CEO signed the initial contract (out of the 4 contracts) also the final contract in Feb 2023...

(error in original)

  1. The conclusion was a recommendation that she be

...given a final warning, and/or transferred.

  1. That contemporaneous note made by CEO Takau (Court Book, File 2, page 281), dated 22 June 2023 was a reference to his decision that Ms. Fifita’s role in the Ministry would

.... cease with effect today, 22 June 2023.

  1. Further, on page 3 of the notes of the meeting, it states that her post would cease and a

...new appointment will be made. In addition, Director SSD post will be advertised.

  1. The Acting SSD Director was, until that moment, Ms. Fifita.
  2. That report and its Annexures were sent to the PSC on 29 September 2023.
  3. On 6 October 2023 it was presented to the Charge Formulation Committee by CEO Takau. That Committee included as Chairlady of PSC, Mrs. Kioa, as well as Solicitor General and the Acting Auditor General.
  4. Thereafter the PSC wrote to both the Auditor General and CEO Takau on 12 October 2023, both in identical in terms, seeking further information, including a copy of the 4th contract in question and

Clarifications on why Matapa Services was used by the Ministry of Tourism

  1. The response (Court Book, file 2, page 366) came from CEO Takau, providing the documents sought and noting that the agreement to provide those services was subsequent to discussions between Ms. Fifita and the then CEO, Mr. Mafi.
  2. A meeting of the Charge Formulation Committee was held 19 October 2023. Present were Mr. Franz Koenig Tu’uhetoka, the Solicitor General and the Auditor General and the Secretariat, Mr. Tuhanuku. They were

...ready and, in a position, to assess the evidence and determine whether all the evidence [was] sufficient to lay charges against Mrs. Fifita.

  1. At that meeting they concluded that Ms. Fifita was to be charged with 27 offences; being alleged breaches of the Public Service Code of Ethics and Conduct 2010.
  2. The first four charges were that she had allegedly artificially divided a contract of $45,8000.000 into 4 so as to bring it under the watershed figure of $20,000.000 so as to affect the procurement method to be properly adopted.
  3. Out of the remaining twenty-three charges, twenty-one can be grouped together as relating to the allegations that she wrongly influenced public funds to be spent by contracting the Ministry to be provided services by a company she had familial ties with.
  4. The remaining two charges (charge 11 and 27) alleged that she failed to assign an appropriate senior officer to check the services had been delivered.
  5. All those charges were delivered to Ms. Fifita on 27 October, by Secretariat Tuhanuku. Ms. Fifita replied on 7 November, explaining she had only just returned from a works trip from New Zealand to find that email and the charges therein.
  6. On 10 November 2023 Ms. Fifita sent her written response to the charges.
  7. Those responses were then considered alongside all the material in the case, by CEO of PSC Mrs Kioa as recorded in her, undated, Memorandum to the Public Service Commission; ref PF. 1 1387 v.2. It concluded that Ms. Fifita

.... had not defeated any of the twenty-seven (27) charges laid against her.

  1. The PSC met on 29 November 2023 and CEO Kioa told them of her conclusion, that Ms. Fifita ought to be dismissed and the matter reported to the police. It was agreed the PSC would communicate that to Ms. Fifita. That was done in correspondence of 29 November 2023.
  2. The appeals process was engaged by Ms. Fifita and that was rejected and the final decision, upholding the original finding, was made 9 January 2024 and reduced to writing and that correspondence sent to Ms. Fifita and the matter reported to Police Commissioner McLellan, both on 10 January 2024.

Application for leave for judicial review

  1. On 19 January 2024 the proceedings for judicial review were commenced. Largely unchanged from the original, the amended Statement of Claim pressed four grounds.
    1. Ms. Fifita had never been given a copy of the complaint. As such she had not been able to answer the allegations before the charges were laid. This amounted to a denial of her right to be heard. Regulation 5 (2) (i) of the Regulations provides the Report to PSC must contain representations from the employee.
    2. CEO Mafi was never spoken to, though he was identified by Ms. Fifita as a relevant witness. No statement was taken from him before the charges were laid. The report identified that he knew 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 was alleged the investigation was incomplete and the report was biased.
    3. In his report Mr. Takau had recommended that the Plaintiff be demoted and/or given a final warning. It was argued the Regulations specify that the report must not contain recommendations; Regulation 5 (2) (l) (i). Thus CEO Kioa took into account material that was irrelevant when ruling on the charges.
    4. The PSC did not allow Ms. Fifita to be heard before they laid the charges against her and as such the decision maker was biased and the decision to charge, fundamentally unfair and an abuse of power.
  2. The ultimate Statement of Defence argued a preliminary point, that it was the Chairperson of the Charge Formulation Committee who wrote to Ms. Fifita charging her with the 27 offences, as such the wrong Plaintiff has been sued.
  3. The Statement of Defence essentially argued
    1. Annex 2 of the CEO Report demonstrates that Ms. Fifita was interviewed and so was given the right to be heard.
    2. Interviewing CEO Mafi was not a mandatory requirement as Regulation 5 (2) (j) only requires “any statements from witnesses” and they need not be included if not gathered. Further, there was sufficient material placed before CEO Takau, by Ms. Fifita for him to come to the view there was no need to take a statement from the former CEO.
    3. The apparent recommendation in the Report was no more than a “proposed” recommendation. In any event it was not taken into account by the PSC.
    4. Finally, the Charge Formulation Committee not the PSC charged Ms. Fifita. She was only charged after being given the right to be heard; her meeting with CEO Takau is proof of that. In any event, the determination that her conduct was a serious breach of discipline, was merely an allegation and not a finding of guilt.
  4. The trial was held 13 November 2024 and submissions the next day.
  5. Ms. Fifita and Mr. Moala Mafi gave evidence for the Plaintiff.
  6. Mr. Simione Sefanaia, Chairman of PSC, CEO Kio of PSC, Franz Tu’uhetoka and CEO Mr. Viliami Takau all gave evidence for the Defendant. I note that Mrs. Kioa though required by the Plaintiff, was not asked any questions in cross-examination.

Discussion

  1. To better analyse the arguments, I am dividing this section into three parts. Each reflects the type of charge that was finally laid. Those charges came after the inquiry by CEO Takau and his Report being sent to the PSC. Ultimately they became the basis for the findings that led to Ms. Fifita’s dismissal and reporting her to Tonga Police.

Charges 5 to 10, 12 to 26

  1. These are the alleged conflict of interest charges.
  2. In the joint memorandum, at Agreed Fact number 10, it states

CEO Takau made no attempt to interview the former CEO of the Ministry of Tourism in relation to the matters which were the subject of the CEO Report.

  1. It is pleaded upon the face of the Defence case, there was simply no need for him to make those inquiries.[1]
  2. As noted above, Ms. Fifita repeatedly drew to the attention of CEO Takau and the PSC, that former CEO Mafi was in possession of facts she considered material and why.
  3. Regulation 5 (1) mandates that CEO Takau had to inquire into the allegation once he found they amounted to serious breaches of discipline.
  4. What is an inquiry?

Oxford Short English Dictionary.

Collins New English Dictionary.

  1. And, what was this investigation supposed to address?
  2. Mr. Pahulu’s allegation that Ms. Fifita had acted in the face of a “conflict of interest”[2], is how he put it in his letter of complaint, 11 April 2023.
  3. He went further. That conflict of interests

...breached the Regulations and the Policies that a senior Public Servant should uphold.

  1. What are those Regulations?
  2. In cross-examination, Ms. Fifita agreed she was familiar with the

“...Public Service ethics of conduct...”

and that

“...under the Public Service Code of Conduct [it is] prohibited for an employee to engage in conduct where there is an apparent conflict of interest.”

  1. The Code of Conduct for the Public Service, CAP. 2.11.04, 2020 Revised Edition, sets out at section 4 the “obligations” of an employee in Public Service[3] :

(1) The second principle of the Code is concerned with the general obligations of employees to give satisfactory service, to respect the rights of the public and Departmental colleagues, and to refrain from conduct that might lead to conflicts of interest or integrity.


(2) All employees of the Public Service shall —


(a) deliver services fairly, effectively, impartially and courteously to the public and to visitors to Tonga;

(b) ensure equality of opportunity in employment;

(c) treat everyone with respect and courtesy and without coercion or harassment of any kind;

(d) disclose and take all reasonable steps to avoid any conflict of interest (real or apparent) in connection with their employment;

(e) not ask for or accept a gift from any person concerned with any matter connected with the employee's official duties; and

(f) wear work attire appropriate for their work environment.

(Emphasis added)

  1. That Code is in force for Public Service employees pursuant to section 19 of the Public Service Act.
  2. It therefore follows, the investigation the CEO was required to undertake was into whether
    1. There was a conflict of interest (real or apparent) in the Ministry contracting with MATAPA Services?
    2. If there was, had Ms Fifita disclosed it?
    3. And, had she taken reasonable steps to avoid it?
  3. I can find no evidence to suggest that at any stage, whether the CEO inquiry, his Report or the PSC’s proceedings, the test, as set out in the relevant part of the Code, was applied to any step of any decision making process.
  4. It is an agreed fact that Mr. Moala Mafi was never approached or spoken to. In fact, a decision was taken that it was unnecessary. Yet, he could confirm Ms. Fifita had disclosed the conflict of interests.
  5. It follows, that the inquiry, did not
  6. Had it done so and followed the two step test set out in the Code (steps II and III, above), CEO Takau would have eventually had to asked himself if
  7. Assessing whether reasonable steps had been taken, in this case, must have necessarily involved hearing from the person who had approved the first contract, thus the whole course of conduct; former CEO Maola Mafi.
  8. CEO Takau asked Ms. Fifita

Why this service contractor was involved ?[4]

  1. Yet, it was not the right question; in that, it did not go far enough and engage with terms of the prescribed behaviour, under the Code.
  2. From the evidence at trial of both Ms. Fifita and Mr. Mafi, it was clear there had been a reasoned decision making process, following her disclosure of a conflict. At trial, that (unchallenged) evidence included the following reasons:
    1. Tonga’s boarders were closed at this time, yet the training could be given by people already in Tonga.
    2. The training was developed by someone who had experience working with Tonga National Qualifications and Accreditation Board,
    3. The course could be made ready in a timely fashion and provided in person.
    4. In person would mean closer interaction between provider and candidates.
  3. Had the inquiry asked itself whether reasonable steps had been taken to avoid the conflict of interests, it would have had to acquaint itself with that evidence and consider it in the light of the statutory test, prescribed by the Code.
  4. Plainly Mr. Mafi would have been able to shed light on those discussions and that process.
  5. Therefore, his account was just as important as Ms. Fifita’s.
    1. It would corroborate what she said.
    2. Explain there had been a reasoned process.
    3. Provide details of those reasons.
    4. Confirm his approval, as the then CEO of the Ministry, and
    5. Why he approved it.
  6. In other words, his evidence went to heart of the question; whether reasonable steps had been taken to avoid the conflict.
  7. Regrettably, the CEO of Ministry of Tourism did not

“...ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly...”[5]

Charges 1 to 4

  1. The first four charges all are allegations Ms. Fifita manipulated the contract, sub-diving it into four, allegedly to avoid the required protocol procedure.
  2. She was not asked about this at all by CEO Tokau as part of his inquiry, as revealed in his Report.
  3. In her written reply to the charges[6], she noted that that was done on the authority of the then CEO, Mr. Mafi.
  4. But he was not asked for his account at any time. A witness who had potential evidence of having authorised the conduct, the subject of the investigation, was not spoken to.

Charges 11 and 27

  1. These two charges were allegations that Ms. Fifita had failed to assign an appropriate independent senior officer to check the services were correctly and completely given.
  2. There is nothing in the notes at Annex 2 of the CEO Report to show she was asked about this at all during his inquiry.
  3. But CEO Takau had included in his Report a section of Audit Inspection: Ministry of Tourism Period Covered: January 2019 – June 2023, at his Annex 4 (Court Book, file 2 page 321).
  4. A careful reading of that audit report reveals that it also was an inquiry into “Conflict of interests”. Yet it reveals no sign that Ms. Fifita was asked for her account by the Auditor General’s team, so allowed to defend herself.
  5. The recommendation in that audit report that Ms. Fifita

...be severely disciplined for corruption...

was heavily relied upon by Mrs. Kioa in reaching her decision to find two those charges proved (Court Book, file 2, page 442-443; column four).

  1. Yet, that recommendation was apparently made, without Ms. Fifita being allowed to provide any account or explanation.
  2. That audit report makes no mention that the then CEO, Moala Mafi, had signed two of the contracts. It appears to mis-state the position, suggesting that they had all been signed off by Ms. Fifita and her daughter.

Matapa Services is a registered business in the name of Ms. Mahina Fonohake Lepeka Fifita, the daughter of [Ms. Fifita] whom is the Deputy CEO of the Industry Empowerment Division.....four (4) contracts were made and signed by both parties...[7]

  1. Further the audit report’s recommendation was made, to a significant degree, on the basis there had been a “conflict of interest”.
  2. Therefore, the former CEO, Mr. Moala Mafi’s explanation was also required before that recommendation could be properly considered.
  3. In all, the reliance on Annex 4 was highly flawed because it relied on

The Defendant’s preliminary argument

  1. I note
  2. Therefore I conclude the Charging Formulation Committee is a part of the PSC, as such, I am quite sure the right Defendant was identified in this action.
  3. I next turn to the effect of the error.
  4. The rationale for the decision not to talk to former CEO Mafi was relied upon by Mrs. Kioa in her reasons for finding the charges against Ms. Fifita proved. Page 44 of the Disciplinary Case note of Mrs. Kioa notes that a

thorough analysis in the table under heading 5[8]

had taken place in reaching her findings.

  1. Heading 5 is at pages 11-12 of that report (Court Book, file 2, pages 427-428). It quotes CEO Takau’s Report

“‘In reference to the question on why Matapa Services was used by the Ministry of Tourism, there is no documentation (email or other) or records on hand other than Mrs. Fifita’s admission that it was a meeting between her and the former CEO (no witnesses) of the urgency of trainings. There was mention of her Husband’s business to which the former CEO approved due to the urgency of the trainings. In a nutshell, it seems that the parties to the engagement of Matapa Services were just the former CEO and Mrs. Fifita, the rest of the staff followed through with the instructions that they were given and were not privy to that information.’”

(error in original)

  1. Therefore, the error in the investigative process, not setting the proper scope of the inquiry and not inquiring of a relevant witness, affected the whole process and the ultimate decision to dismiss Ms. Fifita.
  2. I conclude the charging process relied on a flawed investigation.
  3. All the charges relate to evidence that Moala Mafi could provide, either in respect of why the contracts were split into four, or in respect of the charges where the question of conflict of interest allegation was central.
  4. Had CEO Takau applied the correct test of whether reasonable steps had been taken to avoid the conflict and sought the relevant material as part of his inquiry and Report, he would have
  5. In not taking account of Mr. Mafi’s potential evidence it deprived the CEO’s inquiry of material that impacted on every charge that was laid.
  6. It materially affected the reliability of the process that led to the finding those charges proved and, in turn, that Ms Fifita should be dismissed.
  7. Accordingly, I do not go on to consider the rest of the action brought under the other three heads of claim, as there is no need.
  8. I mention the following as a footnote, though it forms no part of the Claim and has played no part in my decision. In each and every finding the PSC made in respect of each charge, they stated that Ms. Fifita had

not defeat[ed] the charge.

  1. This is in fact reversing the burden. Unless there is a particular provision I am unaware of, it must always be for the asserting party, in this case the PSC, to prove their charges, not for the person accused to disprove them.
  2. In their reasons, the PSC do not state to what standard of proof they found the charges proved.
  3. Correctly establishing the burden and the balance are fundamental to a decision making process of this kind. To do otherwise may well amount to deficiencies that could render the whole a judgement unlawful, separately and or cumulatively.
  4. But, as I have stated, this appears to have gone unnoticed. It formed no part of the case before me, I heard no arguments on the points and it remains wholly outside the scope of my ruling.

Conclusion

  1. On the evidence before me I am sure the Plaintiff have proved their case against the Defendant on the second claim.
  2. Accordingly, I do not go on to consider the case in respect of the first or final two claims and make no findings upon them.
  3. In finding in favour of the Plaintiff I make the following orders:
    1. The decision to charge Ms. Fifita with 27 Charges of serious Breach of Discipline is quashed.
    2. The decision to dismiss Ms. Fifita from the Ministry of Tourism and report her to Tonga Police is quashed.
    3. Costs are to be subject of further hearing, on a date to be agreed upon.

SUPREME COURT

6 JANUARY 2025

COOPER J

NUKU’ALOFA

[1] Amended Statement of Defence, dated 4 September 2024, paragraph 30 (Court Book, file 1, page 19).
[2] Court book, file 2, page 197, paragraph 4.
[3] It is in precisely identical terms to The Code of Ethics and Conduct 2010, which does not appear on the Attorney General’s website; rather the Code of Conduct appears to be the Code in force.
[4] CEO Report, Annex 2, page 2 row 3 (Court Bundle, file 2, page 281).
[5] Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 104, 1065B.
[6] Court Book, file 2, pages 418-424.
[7] Court Book, file 2, page 321; paragraph 2, lines 1-5.
[8] Disciplinary Case findings, Page 44, (Court bundle, file 2, page 460, line 14).

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