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Saulala v Taumoepeau [2009] TOLawRp 5; [2009] Tonga LR 51 (17 February 2009)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CV 6/2009

Saulala anor

v

Taumoepeau anors

Andrew J
17 February 2009

Practice and procedure – ex parte interim orders made – application to set aside – inappropriate to determine matters on ex parte basis – orders set aside

The plaintiffs claimed that no-one had been appointed as a member of the Board of Directors of the Tonga Rugby Football Union since the expiration of the four year terms of office of the previously appointed directors at the end of 2007. Therefore, the Board of Directors was not properly appointed under the Constitution of the Tonga Rugby Football Union incorporated. An ex parte application was made by the plaintiffs and interim orders granted on 29 January 2009 provided that the orders might be varied or revoked by the Court upon application within 48 hours on notice of the plaintiffs or the defendants. The defendants applied to set aside the interim Court Orders.

Held:

1. The matters to be resolved include the resolution of facts in dispute and the interpretation of the Constitution of the Rugby Union. The Court found that those matters could only be properly resolved upon trial and it was inappropriate and unfair to determine those matters on an ex parte basis.

2. The ex parte orders made on 29 January 2009 were set aside.

Judgment

The defendants apply to set aside interim Court Orders which were granted on the 29th January 2009 at the behest of the Plaintiffs. The original application was made ex parte and the Interim Orders granted provided that the orders might be varied or revoked by the Court upon application within 48 hours on notice of the Plaintiffs or the defendants.

Those ex-parte orders were:

"IT IS ORDERED THAT:

1. That the First through Sixth named Defendants cease and desist from holding themselves out as being duly appointed Directors of the Board of the Tonga Rugby Football Union and that they forthwith cease and desist from acting in that capacity unless and until they are duly appointed as Directors pursuant to the Rules of the Constitution of the Tonga Rugby Football Union.

2. That any and all actions taken by the First through Sixth named Defendants in their purported capacity as duly appointed Directors of the Tonga Ruby Football Union are deemed void and of no effect unless and until such actions are ratified by a Board of Directors of the Tonga Rugby Football Union duly appointed under the Rules of the Constitution of that Union.

3. That Siosaia Fonua is confirmed as the Chief Executive Officer of the Tonga Rugby Football Union in accordance with the Rules of the Constitution of the Union, having been employed by a duly constituted Board of Directors of the Union on or about 23 September 2006.

4. Notwithstanding anything contained in Rule 7 of the Constitution of the Tonga Rugby Football Union, that the Tonga Rugby Football Union by its Chief Executive Officer summon meetings, to be held within 10 days from the date of this order, of the Council of Delegates and the Tongatapu and Tautahi Rugby Unions - as members of the Tonga Rugby Football Union, for the purposes of appointing the representatives of those bodies to the Board of Directors-of the Union to hold office for the balance of the four year term which would have commenced in January, 2008 and will expire at the end of December 2011 or until their office is otherwise vacated in accordance with the Rules of the Constitution of the Tonga Rugby Football Union.

5. Notwithstanding anything contained in Rule 15 of the Constitution of the Tonga Rugby Football Union, that no Annual or Special General Meeting of the Tonga Rugby Football Union be held prior to the appointment of a Board of Directors properly constituted in accordance with the Rules of the Constitution of the Tonga Rugby Football Union.

6. These orders may be varied or revoked by this Court upon application within 48 hours on notice of the Plaintiffs or the Defendants.

7. The Plaintiffs are to serve a copy of this order together with the Writ of Summons, Statement of Claim and Directions Notice on each Defendant forthwith."

The crux of the matter was the claim that neither the defendants NOR any other persons had been appointed as members of the Board of Directors of the Tonga Rugby Football Union since the expiration of the four year terms of office of the previously appointed directors at the end of 2007. In other words that the Board of Directors was not properly appointed under the Constitution of the Tonga Rugby Football Union incorporated.

Given the evidence now before the Court I find that it is inappropriate to hold that the constitutional validity of the appointments of the defendants to the Board could or should be determined on an ex parte basis. There are issues of fact in dispute as to what was said at various Board meetings and what was decided. There is even an issue as to what is the valid Constitution. There is an issue as to whether the 1st Plaintiff had resigned or not from his position as Chairman of the Board of Directors as the Chairman of the Council of Delegates. There are issues as to whether Board meetings were properly convened and issues as to whether proper quorums were present.

All of these and other matters are directly relevant to the question of the appointment of the defendants to the Board.

They involve, as stated, the resolution of facts in dispute and the interpretation of the Constitution of the Rugby Union. Those and other matters could only be properly resolved upon trial and it would be inappropriate and unfair to determine those matters on an ex parte basis. The Plaintiffs themselves have said that Constitutional rules may not have been complied with and have said that the appointment of two of the directors "is under some not inconsiderable doubt". There is a further issue as to whether the Court appointed Administrator should be involved in these proceedings as he has the control and administration of the Tonga Rugby Football Union.

For all of these reasons the ex parte orders of the 29th January 2009 are set aside.

The Plaintiffs had previously filed a Statement of Claim seeking various declaratory orders. This matter will have to proceed on that basis.

Order

The ex-parte order of the 29th January 2009 are set aside.

Costs of the application for ex-parte orders and for the application to set aside those interim orders are to be costs in the cause.