Civil defamation case to be heard by Magistrate [1]
Thursday, February 11, 2016 - 19:21. Updated on Thursday, February 11, 2016 - 19:24.
The Chief Justice dismissed an application by Mateni and Lautala Tapueluelu for a transfer to the Supreme Court of a civil proceeding for defamation brought against them by the CEO of Tonga Communications Corporation (TCC).
On 2 February, Lord Chief Justice O. G. Paulsen in his ruling dismissing the application said the Magistrate’s Court should arrange the matter to be brought before its court and to allocate a hearing date as soon as is reasonably possible.
The respondent TCC CEO Mr Rizvi Jurangpathy opposed the application for transfer. He issued proceedings against four defendants at the Magistrate’s Court seeking damages for defamation arising out of an article published in the Kele'a Newspaper on 29 June 2015.
The statement of claim before the Magistrate’s Court alleges that the article was defamatory of Jurangpathy.
The Chief Justice said the start of this matter was the dismissal of a man named Lomano Tonga Fifita from his position with TCC. Fifita made a complaint about this to his elected representative Mateni Tapueluelu, who then raised the matter in the Legislative Assembly, and then an article appeared in the Kele’a newspaper.
The applicants deny that the article was defamatory and plead the defences of truth and qualified privilege.
Lord Chief Justice Paulsen said at this stage of the proceeding there was no need to resolve disputed questions of fact.
National Interest
'Ofa Pouono, acting for the applications argued their application on two principal grounds, including one that it raised issues of national interest.
In his affidavit in support of Tapueluelu's application he stated that it was normal for a private citizen to seek assistance from his elected representative and for matters of public concern to be raised in Parliament; that TCC is a public enterprise of the Government of Tonga; and that this case raises issues of public interest as to how public funds are managed "and to what degree do leaders receive bonus from public money".
Pouono also said this case would involve public figures giving evidence including Cabinet Ministers and the Prime Minister. This was because the Minister for Public Enterprises and the PM wrote to Mr Jurgangpathy suggesting that he go on paid leave or resign until an investigation had been conducted
Pouono also submitted that this case had no bearing at all to Lomano Tonga Fifita.
"His second argument was that the case can be more cost effectively heard in the Supreme Court as the relevant documents are all in English and would need to be translated into Tongan, the language of the Magistrate’s Court.
"Mr Pouono also submitted that the hearing at the Magistrate's Court was likely to take a week and a half to hear, but I was provided with nothing that would support his estimate," the judge said.
Respondent
William Edwards who acted for the respondent provided the judge with a chronology of events at the Magistrate’s Court.
The Chief Justice said what it showed was that the case was ready for trial in the Magistrate’s Court and would have been heard on October 22-23 last year but it was filed on the day before the hearing of this application to have the case transferred the Supreme Court.
Edwards did not dispute that this court has the power to transfer the proceedings but said that this case has none of the special factors, which led to the Court of Appeal to order a transfer in that case.
No merit
In discussion, the judge stated, "In my view, there is no merit in this application. Contrary to what is argued by the applicants this case is primarily concerned with the dismissal...The allegations against Mr Jurangpathy were raised in an attempt to substantiate Mr Tonga’s complaint that his dismissal was unlawful...."
"In addition, as far as the argument that Ministers and the PM will be called to give evidence it is difficult to see what evidence they could possibly give on the issues that arise in this and in any event," said the Chief Justice. “I cannot see how it can be suggested that such persons should not be required to appear at the Magistrate’s Court. The Magistrate‘s Court is entitled to the same respect as any other court. “
"It also raises no issues, which I consider would be unsuitable for resolution by the Magistrate’s Court. That court regularly deals with claims in defamations difficult as this one," said the Chief Justice.
He also said it was most relevant that the applicants waited until the last day before the trial to make this application.
"Such applications should be made at the earliest possible state and not at the last moment when the only inference can be that they are pursued for tactical advantage,” he said.
The respondent is entitled to costs on application to be fixed by the Registrar if not agreed.
The four defendants in the defamation claim to be heard in the Magistrate's Court are Mateni and Laucala Tapuelualu, ‘Ofa Vatikani and the Kele’a newspaper. Mateni was at the time the People’s Representative for Tongatapu No.4 Electoral Constituency and Lautala was the publisher with ‘Ofa Vatikani the editor.