Pacific Games plaintiffs who are trying to sue the Kingdom of Tonga for multimillion pa'anga damages over its cancelling of the Pacific Games hosting in 2019, have been given leave to amend their claims, after the Chief Justice found their statement of claim was defective.

The defendant, the Kingdom of Tonga, had applied to strike out / or stay the plaintiffs claims.

Lord Chief Justice O. G. Paulsen on 19 November, ruled that the Kingdom of Tonga was ‘successful in part and this action is stayed’, in their application to stay or strike out an application by the Pacific Games Council and the Tonga Sports Association and National Olympic Committee TASANOC, seeking damages for breach of a written agreement that the Government of Tonga had agreed to support, facilitate and fund the hosting of the Pacific Games in Tonga in 2019.

The plaintiffs, stated to be the “Pacific Games Council” and the “Tonga Sports Association and National Olympic Committee”, are seeking damages for alleged breach of a written agreement made in 2012 that the Government of Tonga had agreed to support, facilitate and fund the hosting of the Pacific Games in Tonga in 2019.

The judge stayed the case, allowing the plaintiffs time to provide an amended statement of claim. He pointed out that the plaintiffs current statement of claim was defective, in that it:

(a) Fails to identify the plaintiffs (or misdescribes them) and fails also to provide a basis upon which they have standing to sue upon the Host Contract; and

(b) Fails to adequately plead the basis and particulars of the damages claims.

The defendant, the Kingdom of Tonga did not file a statement of defence, choosing to pursue their application to strike out the plaintiffs' application.

Chief Justice Paulsen gave the plaintiffs no later than 18 January 2019 to apply to overturn the stay and to provide a draft, amended statement of claim.

Doubts

After hearing pleadings from the parties, the judge found doubt on the plaintiffs' standings to sue on the Host Contract and also faulted the identity of the party to the Host contract on the claim.

“It is surprising to me that no attempt has been made to explain why in the Host Contract the HOST PGA was named as the Tonga Pacific Games Association (and not TASANOC) and if TASANOC was the intended contracting party to the Host Contract it was not named as such.”

“On what is before the Court the intended second plaintiff is the Tonga Sports Association and National Olympic Committee Incorporated, which is presently incorrectly described in the statement of claim and, more importantly, was not in existence and could not have been a contracting party to the Host Contract.”

“Doubt on the plaintiffs' standings to sue on the Host Contract are evident in the statement of claim and made manifest in the affidavits of Mr Minogue and Lord Sevele. It appears that the plaintiffs do not exist or are at best misdescribed and, if the latter, have no standing,” he stated.

“These are fundamental matters. These are not matters that can be resolved by the provision of further particulars.”

 The judge said that the statement of claim was not only unclear but it seriously prejudices the Kingdom within the meaning of the rules.

“The Kingdom cannot be expected to plead to the statement of claim when it cannot be sure of the identity of the plaintiffs or of the basis upon which they sue.”

Pacific Games

The plaintiffs are claiming that on 19 October 2012 parties entered into a Host Contract for Tonga to host the 2019 Pacific Games in Tonga.

The contract included obligations for the Tonga Government to support, facilitate and underwrite the financing of the 2019 Pacific Games.

However, on 16 May 2017, the PM Hon. ‘Akilisi Pohiva notified the Pacific Games Council that Tonga had unilaterally withdrawn its hosting rights for the Games and thereby repudiated and brought and end to the Host Contract.

The plaintiffs are claiming that as a result of the repudiation of the Host Contract, they have suffered loss and damage, including losses associated with obtaining Samoa to host the Games, which in the case of the Pacific Game Council (PGC) amounted to TOP$4,581,901.49 and, in the case of TASANOC, amounted to TOP$2,612,256,59.

Legal counsel for the plaintiffs was Mr W. Edwards. For the defendant were Dr R. Harrisons SC QC and Ms. S. T. Moa.