PM and PSC to pay security to court before action [1]
Monday, March 30, 2015 - 21:15
Tonga’s Public Service Association Inc. and the Prime Minister Hon ‘Akilisi Pohiva will have to pay $20,000 pa'anga each by way of security to the Supreme Court before their civil action regarding the alleged unlawful payment of Chinese aid money to Friendly Islands Satellite Communication Ltd. (FISC) can proceed to trial.
Mr Justice Hon Scott delivered this decision on March 19 in the action brought by the plaintiffs (PSA and Pohiva) against three defendants the Kingdom of Tonga, the Attorney General and Friendly Islands Satellite Communication Ltd. (FISC).
The judge dismissed the Acting Attorney General as a defendant from this suit (as conceded by the plaintiff's counsel, R. E. Harrison QC SC).
This is another action arising out of the disbursement by the then Government of Tonga to FISC and others of the greater part of USD$25,450,000 received in grant aid from the Government of People’s Republic of China. Other proceedings from the same events have included private criminal prosecutions which led to criminal appeals and civil actions.
“It is plain that the central issue, still unresolved is one of significant public importance,” the judge stated in his decision over three applications before the court.
The proceedings began on 7 July 2014 just over three years after the matters complained of. The Plaintiffs are seeking declarations that the disbursement of the aid funds was unlawful, that the third defendant FISC was unjustly enriched and that it is unlawfully retaining or has coverted the funds. The Plaintiffs also seek repayment or damages in lieu.
Applications
The applications included one by the defendants to strike out the writ on grounds that the plaintiffs lack standing to bring action; that the proceedings ought to have been started by application for leave to move for judicial review; and that the plaintiffs claim discloses no reasonable action.
A second application was filed by the defendants for security for costs to be provided by the plaintiffs.
The third application was filed by the plaintiffs for leave to move for judicial review, in effect to continue the present proceedings in the revisional rather than the civil jurisdiction.
Trial
Mr Justice Hon Scott in his decision said this civil action is properly constituted; there was no need to apply for judicial review.
He dismissed the application to strike out this claim and for the case to be set down for trial, but ordered each of the plaintiffs to pay $20,000 by way of security to the court before it can go any further.
The trial will probably take at least a week and leading counsel will be involved on both sides, he said.
"All parties are in agreement that the central issue, the lawfulness of the disbursement in question is a matter of national concern will involve careful consideration of important and sometimes difficult questions of law and fact."
In the present case, the decision questioned, namely the decision to disburse the grant aid funds to the third defendant and others is now final and complete, as the money has been disbursed, he said.
"That the decision to disburse these funds has been a matter of national controversy since it was taken, is clear from the exchanges of letters and the questions and motions in Parliament which followed within weeks of the decision being taken."
The judge said although the private criminal prosecutions were misconceived, which is why they failed, the defendants cannot reasonably suggest that they had been taken by surprise by the start of the present proceedings.
He also said as a matter of record the second plaintfiif had incurred substantial unpaid costs from previous associated proceedings and that he has previously made public appeals for donations to allow him to proceed further.
"In all the circumstances, I am satisfied that each of the plaintiffs should pay to the Registrar of the High Court TOP$20,000 by way of security. Pending payment, the proceedings are stayed."
The first and second defendants were represented by S.J Stanton and Sione Sisifa. William Edwards acted for the Friendly Islands Satellite Communication Ltd.