The Chairperson and a director who refused to resign from the board of the Tonga Broadcasting Commission (TBC) are seeking a judicial review of the early terminations of their three-year appointments to the board of the public enterprise.

The Plaintiffs, Dowager Lady 'Eseta Fusitu’a and Dowager Lady Tuna Fielakepa, have started a civil action in the Supreme Court of Tonga against the Defendant, the Minister of Public Enterprises Hon. Poasi Tei (for and on behalf of the Kingdom of Tonga).

However, Justice M. D. Scott on 3 December, after hearing an application from the Defendant, cancelled an interim injunction that had restrained the Minister from terminating their appointments.

This means that the Plaintiffs will not continue as directors while their civil action is pending in the courts.

In considering the Defendant’s application to cancel the interim injunction, the judge also noted on December 3 that, “I am satisfied that the Plaintiffs have an arguable case. If successful, the result will probably be that the Court will declare that their dismissals were void, entitling them to claim unpaid salary for the unexpired period of their contracts.”

The judge had to consider whether more harm would be done by refusing or granting the injuction.

He considered that “following the voluntary resignation of the other directors, TBC is left without a functioning Board.

“Government is unable to proceed with its reform of Tonga’s public enterprises. If the injunction were to be continued then this situation would be likely to last for at least another five months. To continue the injunction would, in other words, be severely detrimental to good administration.”

He also considered that when an interim injunction is granted “the matter should be adjourned for no longer  than a day or so.”

Public enterprises

The Plaintiffs court action follows a Cabinet decision earlier this year that called on all directors of the government’s 15 public enterprises to voluntarily relinquish their appointments. In June under a “National Strategic Review” the government had decided to reorganise the TBC and other public enterprises.

The court was told that between May and July 2015 the Ministry of Public Enterprises held meetings with chairpersons and directors of all public enterprises to explain the plan. The directors were invited to voluntarily relinquish their appointments and to accept financial compensation.

All the other directors resigned except for the two ladies.

Previously, Lady Fusitu’a had been reappointed as a director and the chairperson of the TBC Board in May 2014 for a period of three years, while Lady Fielakepa had been reappointed as director of the TBC Board in December 2013 for a period of three years.

Refused to resign

In August 2015 the Plaintiffs and the Ministry appeared before the Commissioner for Public Relations and as a result the package was improved. The Plaintiffs did not accept the improved compensation and refused to resign.

In September 2015 the Cabinet decided that the contracts of those directors of TBC who refused to accept the package would be terminated, and the Plaintiffs were advised.

They again rejected the invitation to resign.

In a letter of 16 October, the minister then informed them that he had with the consent of Cabinet decided to terminate their appointments on 19 October.

Interim injunction

On 20 October the Plaintiffs sucessfully applied for a restraining order under an interim injuction granted by Acting Chief Justice Cato, which restrained the Minister from terminating the appointments until a further order of the Court could be made by Justice Scott in November.

On 6 November the court granted the Plaintiffs leave to move for judicial review of the decision to terminate their appointments as directors of the TBC.

The Defendant gave notice of opposition to the continuing interim injuction and applied to have it set aside. ‘Aminiasi Kefu, the Acting Attorney General presented in his written submission, that “the balance of convenience strongly favoured the Defendant.”

On 3 December Justice M. D. Scott decided to cancel the interim injunction that had restrained the Minister from terminating the ladies appointments. “I am not satisfied that the Plaintiffs have discharged the onus resting upom them to show that the injunctions granted on 20 October should be continued. On the contrary I am satisfied that on the balance of convenience they should cease to have effect forthwith,” he stated.

W. Edwards is counsel for the Lady Eseta and Lady Tuna.

‘Aminiasi Kefu SC, the Acting Attorney General represents the Minister for and on behalf of the Kingdom of Tonga.