Court dismisses application by PSA [1]
Thursday, March 12, 2015 - 18:20
A Supreme Court judge has dismissed an application by the Public Service Association Inc. and Mele ‘Amanaki to transfer civil actions claiming damages against them for defamation, from the Magistrate’s Court to the Supreme Court.
The judge dismissed the application after not accepting provisions relied on by the counsel for the applicants.
Mr Justice Scott in his decision on Friday, March 6 said the application by PSA and its Secretary ‘Amanaki followed two actions brought against them in May 2014, at the Magistrate’s Court.
He said the actions were filed by Lord Tu’ivakano and William Clive Edwards claiming damages (limited to $10,000) for defamation arising out of the publication of various statements.
They said the defendants had untruthfully claimed that the payment of grant aid funds was unlawful, and that they were dishonestly responsible.
This grant aid related to the Chinese Government's provision of US$25,450,000 received by the Government of Tonga in 2011, in which 'Akilisi Pohiva, now the Prime Minister, had taken unsuccessful private criminal prosecutions against Lord Tu'ivakano, William Clive Edwards, Friendly Islands Satellite Communications (Tongasat) and Princess Pilolevu Tuita.
The judge said the applicants had submitted that the actions for defamation in the Magistrate’s Court would inevitably involve consideration of whether the payments made out were indeed unlawful and if so whether Lord Tu’ivakano and Edwards were to be held to account. The as yet unresolved issue would involve a difficult question of law and fact, which could not suitably be disposed of in the Magistrate’s Court.
The applicants through their counsel Dr Harrison QC then sought orders for transferring the actions to the Supreme Court, or alternatively have them stayed until a final judgement was reached in a civil action brought by PSA and Pohiva against the Kingdom of Tonga, the Attorney General and Tongasat, which began on 8 July 2014.
Dr Harrison had submitted written submissions for this application, which was opposed by Mr Stanton SC and William Clive Edwards, who acted for the defendants.
Defective
Mr Justice Scott said, having read the respondents claims in the Magistrate’s Court as fairly as he could, he had no doubt that the unlawfulness or otherwise the payments to Tongasat, if not already determined elsewhere, would inevitably fall for consideration.
"I agree with Dr Harrison that the Magistrate is not at all suitable for an enquiry into the alleged unlawfulness. The problem, however, facing these alternative applications either for transfer or stay is that they are procedurally defective."
He said RSC O.6 required an action to be commenced by writ but these proceedings were, however, commenced by 'application notice' as there was no writ on the file.
“An application is commenced under RSC O.13, which makes it quite clear that save in cases of exceptional urgency and upon undertaking being given by counsel, an application cannot be made until proceedings have already started. To apply for a stay or transfer, this application should be made to the Magistrate’s Court,” he said.
"It is true that the Magistrate’s Court is subject to prerogative orders issued by the Supreme Court but no such orders have been applied for in this case. These are not judicial proceedings."
The judge dismissed the application after not accepting provisions relied on by the counsel for the applicants.