The Kingdom of Tonga has an arguable defence to claims made by Plaintiffs, Lord Sevele-'o-Vailahi and 10 former members of the Pacific Games Organizing Committee, the Lord Chief Justice O. G. Paulsen ruled on November 8.

The Plaintiffs are seeking payments of a sum of money from the Kingdom of Tonga in consideration for the early termination of their contracts of employment, when the hosting of the Pacific Games by Tonga was cancelled.

The action has yet to be heard by the court.

In this latest ruling, the defendant, the Kingdom of Tonga, had applied to set aside an earlier “judgment by default” of August 2, which the Plaintiffs had obtained as to liability against the defendant. At the time, it was claimed by the Plaintiffs that the Kingdom had not filed a defence.

However, last week in the Nuku'alofa Supreme Court, the Chief Justice agreed with the legal counsel for the defendants, that there were good reasons for their failure to file a defence in time, and that the plaintiffs would not suffer irreparable injury if the judgment was set aside.

He also called for counsel to meet and set a hearing timetable at 9:00am on 23 November 2018 for the case.

The Legal counsel for the plaintiffs was Mr W. C. Edwards Snr SC. The legal counsel for the Second Defendant, the Kingdom of Tonga were Dr R. Harrison QCMSC and Ms S. Moa.

The Case

The Kingdom of Tonga and the Pacific Games Organizing Committee are the two Defendants in a case that was tabled to the Supreme Court on 9 January 2018 by the Plaintiffs, Lord Sevele-'o-Vailahi, the Chief Executive and the Chairperson of the Pacific Games Organizing Committee, and 10 Committee members, Sakopo Lolohea, ‘Etonisia Tonga, Paula Tu’utafaiva, Naitilima Tupou, Polutele Tu’ihalamaka, Soakai Motu’apuaka, Mele Lupe ‘Ilaiu, Ian Tu’ihalangingie and Mangisi Halafihi.

On 19 October 2012 Tonga signed a contract to host the 2019 Pacific Games, and the Pacific Games Organizing Committee was established under the Pacific Games Organisation Act 2013. The function of the committee included the preparation, management and conduct of the 2019 Pacific Games in Tonga.

However on 17 May 2017, the Tongan Government withdrew from hosting the 2019 Pacific Games, and the Legislative Assembly repealed the Pacific Games Organisation Act 2017 on 29 June 2017.

On 27 July 2017 the Committee decided to wind up its operation and terminated the plaintiffs’ employment contract. It is argued that “in each case the Committee accepted a contractual liability to the plaintiffs to make payment of a sum of money in consideration for the early termination of their contracts of employment.”

The Plaintiffs commenced their court proceeding on 9 January 2018, seeking to recover from the Pacific Games Organizing Committee PGOC, and the Kingdom of Tonga their settlement payments.

The proceeding was served on the Kingdom on 12 January 2018, but no statement of defence was filed by the Kingdom and on the plaintiffs’ application judgment in default of defence as to liability was entered against the Kingdom on 2 August 20198.

No settlement

The Kingdom applied on 22 August 2018 to set aside the default judgments. It argued that there was a good reason for its failure to file a defence as the parties’ preference was to reach a negotiated settlement, and Mr Sisifa, for the PGOC had received an undertaking that if no settlement was reached the Kingdom would be given time to file its defence.

Lord Chief Justice Paulsen said in his latest ruling that he understood that the Kingdom was not a party to the plaintiffs' employment contracts nor was it a party to the terms of settlement. “I know of no principle that would make the Kingdom liable on the Committee's contracts simply because the Committee was a statutory authority (as the plaintiffs have pleaded,) particularly in the circumstances where the committee was a separate legal entity that was financially autonomous and independent of any government department.”

The Plaintiffs also argued a second cause to action is that the Kingdom breached an alleged statutory duty to meet the settlement payments.

“A number of arguable defences are available to the Kingdom in respect of this cause of action,” stated Chief Justice Paulsen, noting that it was arguable that the duty was not owed to the plaintiffs and the settlement payments were  not in respect of the organisation or conduct of the Games.

The Chief Justice also noted that Mr Edwards had conceded that the Kingdom does have an arguable defence to the claims.

He ruled that the judgment in default of defence that was obtained by the Plaintiffs be set aside, and a hearing timetable for the action to be set.