Lord Dalgety blames government for purchase of Ashika [1]
Wednesday, January 20, 2010 - 13:15. Updated on Friday, May 9, 2014 - 21:57.
The intense questioning of Lord Dalgety QC provided moments of courtroom drama on Day 31 of the Royal Commission of Inquiry into the sinking of the Ashika on January 19, continuing today, with the witness admitting that there was crucial information the SCP should have had and proper due diligence was not carried out in the purchase of the vessel by government.
Lord Dalgety of Sikotilani Tonga, the Company Secretary for the Shipping Corporation of Polynesia Ltd. was giving evidence for the first time in the hearing at the Fa'onelua Convention Centre, in Nuku'alofa.
There were feisty exchanges as the witness was doggedly questioned by Counsel Assisting the Commission, Manuel Varitimos.
From the outset, counsel established that Lord Dalgety, who declares himself to be a Privy Councillor had, in fact, no right under the Constitution to sit on Privy Council and had never attended a full meeting, but rather he is a member of a judicial committee of the King's four law lords who advise Privy Council.
"Well, Lord Dalgety, you say you're a Privy Councillor," counsel argued, but the witness replied, "I'm not saying I am. I am, and if you try to say I'm not, you're offending His Majesty. He appointed me. He appointed others. I will give you the bit of paper to prove it!"
Counsel suggested to the witness that he is in a position to exert considerable power and influence in this country given the positions he holds, and asked him, "With the positions that you hold - you have considerable and important duties to carry out, in the public interests, and that included your position as company secretary of Shipping Corporation?" And the witness replied "Yes."
Formerly known as Ramsey Robertson Dalgety, the witness, a former Tonga Supreme Court Judge, and a Queen's Counsel of Scotland who has lived in Tonga since 1991, said his principal occupation was currently Chairman of Tonga's Electricity Commission. He hedged many of the questions with memory loss on what he called "trivial details", at one point telling Varitimos "don't you raise your voice at me, I can't remember!". Frequently, when pushed for "yes" or "no" answers, the witness offered hypothetical replies.
Cause of disaster
Yesterday afternoon, Lord Dalgety was asked whether he had turned his mind to the cause of the disaster, he said "yes". He was then asked for his view or assessment as to the cause or causes of the disaster and the death of the people on Ashika.
Lord Dalgety answered, "That proper due diligence in the purchase of the ship was not carried out by the prospective owners," and added, "I realised that this should never have happened if proper steps had been taken during the purchase . . . that is using proper qualified sale and purchase brokers and getting proper survey documents."
"If that had happened in this case the Ashika would have not left Fiji and Tonga would be have been saved a terrible disaster," he said.
When he saw the extent of the so-called surveys and heard about the reports that the Ministry of Transport carried out, he said that had he known that before, "it would have put me on guard; and how anyone could buy that ship is incomprehensible when I saw the evidence."
Due diligence
The inquiry has heard evidence that the former Minister of Transport had asserted to the Crown Law that due diligence had, in fact, been conducted on the Ashika, but that is now known to be false.
On being asked whether he expressed this opinion to others, he recollected that he told his counsel and mentioned it to the SCP Board when it appeared that proper procurement procedure was not carried out by the owners.
On being asked his view on what could prevent such a similar disaster. He said that to purchase a vessel professional staff and surveyors were needed.
He was asked whether he knew how many people were unaccounted for in the Ashika sinking, and he answered "74".
Appointment of Jonesse
Lord Dalgety was a member of an SCP Appointment Committee that played a part in hiring John Jonesse of New Zealand as Managing Director. He remained firm in his conviction that Jonesse was the best candidate for the job, regardless of the fact that he had no shipping experience, because they were looking for a manager and not a seaman. He added that Jonesse did well until the Ashika disaster.
When asked whether he agreed he was ecstatic that they found someone suitable for the job, he answered, " I don't think it's my nature to be ecstatic."
He was asked whether he accepted that it was a very bad decision to engage Jonesse as CEO, he said "No", saying that at the time it was the appropriate thing to do. "The only area where he has let the company down, let himself down, and has something to answer for, is in relation to the Ashika."
"That's a terrible tragedy, which he - he can answer for himself on that," Lord Dalgety said.
It was confirmed that Jonesse never provided any references to him and that he never checked on them. He was not aware that Jonesse went by a different surname in New Zealand where he was known as Mr Jones.
Lord Dalgety also confirmed that Jonesse put down Paul Karalus as someone to contact for verification as he asserted they had a business association in the past. This was before Karalus became Minister of Transport.
Shambolic
When Varitimos suggested to him that that the filing system at SCP was "shambolic and chaotic for many years and totally unsatisfactory" as records were lost, the witness admitted that it was an inherited situation and even important records kept by himself were lost for a year.
When it was put to him that as a witness summoned to produce all relevant documents in relation to the Ashika, he had not produced email correspondences in relation to the Ashika, Lord Dalgety said he would direct someone at SCP to do so at the end of his evidence.
Emails
His office was receiving emails from John Jonesse, which had his application and CV attached, as well as other emails from Jonesse as CEO regarding Shipping Corporation matters, which the witness thought was a lot of rubbish.
It was put to him if the CEO sent him matters about SCP it was not all rubbish and some matter of substance. He added there were some matters of substance.
Lord Dalgety said his staff handled the emails because he didn't know how to use computers. "I'm not an email sort of person," he said.
When counsel asked him how he accessed email on his frequent travels overseas, Lord Dalgety answered, "How can I do that when I don't know how the damn thing works!"
SCP minutes
When counsel repeatedly asked if it was Lord Dalgety's idea to produce only excerpts of Minutes of Directors' Meetings for the inquiry, the witness was irritated, replying, "Repeat yourself if you must!", and explained that was how he read the terms of reference.
It was put to him by the counsel that his failure to provide full copies of the Minutes of SCP Board of Directors' Meetings had the possible tendency to hide the truth.
He answered no and, raising his voice, said, "there was never any intention to mislead or deceive anyone! . . . If you'd asked for more you would have got it."
The witness said the full record of the minutes kept by him as company secretary, however, "doesn't include the verbal interplay in meetings."
Government purchase
Lord Dalgety said that the managing director Jonesse was sent to Fiji to purchase a vessel at the request of government and not SCP. "Government was purchasing the vessel not us."
"We were not purchasing the ship," the witness said several times. "The role of the shipping company in respect of that ferry was only to be as the operator of the vessel."
Suspension of Jonesse
When questioned why Jonesse was suspended, the witness said "the directors made that decision without reference to me."
He affirmed that evidence was coming to light which cast doubt on Jonesse's
competence in respect of the Ashika adding, "and his failure to provide appropriate information to the board. Information, which if we had known about might well have averted a tragedy."
Lord Dalgety said that when Jonesse returned from Fiji, Jonesse had told him that Government had three surveys and there was no need for a Norwegian Sale Form.
"The way he put it was, the lawyer in the Ministry of Transport does not think that's necessary because the sellers have come up with a document which they have seen and they are quite happy to use. And they were proceeding on that basis."
Lord Dalgety later found out the person was not a lawyer but a clerk in the ministry.
"After the tragedy, when all the papers were being put together, I was shown a copy of the sale and purchase agreement. And I'm afraid my language was less than polite. I said, 'What the hell is this?' And then when I had another look at it very quickly, I threw it down at Jonesse and said, 'This is a load of crap!'."
Lord Dalgety's evidence was to continue on January 20.