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Anti-Corruption Commissioner v National Reserve Bank of Tonga [2025] TOSC 56; CV 60 of 2024 (30 June 2025)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

CV 60 of 2024

BETWEEN:
ANTI-CORRUPTION COMMISSIONER, a public authority established and appointed under the Anti-Corruption Commissioner Act
- Plaintiff/Respondent

AND:
[1] NATIONAL RESERVE BANK OF TONGA, a body cooperate established to act as the Central Bank of the Kingdom of Tonga under the National Reserve Bank of Tonga Act.
[2] DIRECTORS OF THE BOARD OF THE NATIONAL RESERVE BANK OF TONGA, namely Feleti Sevele, Tatafu Moeaki, Siosi Mafi, Kilisitina Tuaimei’api, Masasso Paunga, John Paul Chapman and Vika Fusimalohi appointed under Section 10 of the National Reserve Bank Act
- Defendants/Applicants

RULING
Application to strike out parts of the Statement of Claim.

BEFORE: HON. LORD CHIEF JUSTICE MALCOLM BISHOP KC

Appearances: Ms M Mangisi for the Plaintiff/Respondent
Mr T Aho for the Defendants/Applicants
Date: 30 June 2025

1. BACKGROUND

1. This is an application by the National Reserve Bank of Tonga to strike out paragraphs of a Statement of Claim in Judicial Review proceedings brought by the Anti-Corruption Commissioner.
2. The Applicant relies on order 8 Rule 8(1) (b) and ( c) and (d) of the Supreme Court Rules which provides as follows:
   • (1) The Court may at any time order that any pleading or part thereof be struck out if...
   • (2) (b) it is scandalous, frivolous or vexatious; or

(c) it is unclear, or may otherwise prejudice or delay the fair trial of the action; or

(d,) it is otherwise an abuse of the process of the court,

And may order the action to be stayed or dismissed, or judgement to be entered accordingly.

3. It is to be noted that the Applicants do not rely Order 8 Rule 8 (1)(a) “that the statement of claim discloses no reasonable course of action.” Plainly it does.
4. Additionally, on 24 June 2025 the Applicant’s filed submissions in support of their application. It is now submitted that the statement of claim as drafted is an abuse of the Court's process and is likely to obstruct the just disposal of the proceedings as filed.
5. I will deal with the gravamen of this latter submissions later in this ruling but in broad terms it seems to me that the arguments deployed are premature to a striking out application.
6. It may be helpful to bear in mind the purpose of the Anti-Corruption Commissioner Act. The rubric to section 3 is as follows: “public interest to be paramount”.
7. The section itself continues, “the Commissioner shall direct its attention to serious and systemic corrupt conduct and may take into account the responsibility and role of other public authorities and public officials in the prevention of corrupt conduct.”
8. I hold that “serious and systemic” does not mean serious and repeated or serious and regular but simply that the corruption found or suspected must be both serious and referable to the way in which the organization in question conducts its activities.
9. It is neither necessary nor helpful to overburden this ruling with minute exegesis of the statute. I gratefully adopt the summary set out by the Commissioner in his submissions dated the 26 June 2025 at paragraphs 59 to 67 and they are to be taken as incorporated in this ruling.
   
   2. STRIKING OUT
10. Striking out is a remedy of last resort and should only be deployed in cases which are bound to fail. This is particularly important when considering the subject matter under consideration because it is plainly in the paramount public interest to have allegations of corrupt practice scrutinized and the alleged wrongdoers either vindicated or held to account.
11. Access to the Courts is a foundational basis of the common law and as Lord Hope put , “A striking out application should only succeed if it is plain and obvious that the substantive action is bound to fail.”^[1]
12. Here, bearing in mind that the pleaded case must be taken as correct I am satisfied that this case is not bound to fail. The allegation is not one of fraud or dishonesty but misfeasance in a public office where knowledge of unlawfulness or reckless indifference thereof alone is required.
13. The documentary evidence relied on by the plaintiff establishes that the claim is not speculative but grounded in the undergirding of the Commissioner’s responsibilities, supported as it is by a coherent narrative of events. It is submitted by the Commissioner that because of his statutory mandate the threshold for a strikeout is higher than in a normal case.
14. I make no pronouncements on that submission at this stage but hold that on the normal standard of whether the case alleged is bound to fail, I conclude that it manifestly does not surmount that hurdle.
    
    100. ANTI-CORRUPTION COMMISSION ACT
15. I have considered the Anti Corruption Commissioner Act and in particular sections 12, 13 and 21 which empower the Commissioner to investigate suspected corruption. This involves the compulsory production of documents by the initiation of legal proceedings when in the public interest.
16. I agree with the Commissioner that these measures are not merely permissive, they impose a duty on the Commissioner to act where he believes or suspects that serious and systemic corrupt conduct has occurred.
17. The repeated complaint of the Defendants that the powers are coercive and so in some way untoward is nihil ad rem, nothing to the purpose. The Commissioner has been given powers of investigation and enforcement including the authority to bring proceedings and to call for documents, as an inherent and irreducible exercise of his statutory duties (“the commissioner shall direct his attention”).
18. In particular by section 16, the Commissioner is authorised to obtain documents and obtain relevant information and I am satisfied that the documents obtained by him in the present investigation were both lawfully and appropriately obtained.
19. In any event I question whether the allegations of abuse of process are appropriate to be decided in a strikeout application rather than the trial where evidence can be presented and tested, discovery embarked on, and all the elements of a fair trial put in place.
20. This is not to say that the Court has does not have an inherent jurisdiction to prevent its procedure from being abused but the threshold for success is high. Any objections to what is intended to be put in evidence should be made at the trial, not in a motion to avoid it.^[2]
21. It may of course be the case that the pleadings are incomplete in the sense that they do not condescend to sufficient particularity as contended for by the Defendants, but the remedy there is to seek further and better particulars of the allegations and not to stifle the action ab initio.
22. The Defendants rely on affidavit evidence to challenge the sufficiency of the Plaintiff's case. This is inappropriate at this stage. It is well settled law that issues of admissibility, credibility, the burden of evidence and so on are to be a matter of a trial not for a strikeout application. Factual challenges should be made then not now.^[3]
23. The Defendants complain about the use of documents compulsorily acquired under the Act. Section 19 (1) expressly authorises the commissioner to use such documents in the exercise of his functions including the initiation and prosecution of legal proceedings. Provided the statutory framework is followed , as I am satisfied is the case here, documents obtained under compulsion does not render their use unlawful.^[4]
24. Before passing to the individual allegations made in the application I set out my understanding of the purpose of pleadings
    
    4. PLEADINGS
25. It is helpful at this stage to set out in short compass the function of pleadings. It is to bring the parties to an issue or issues on which alone the Court could adjudicate between them as well as ensuring each party has fair notice of what the case, he/she has to meet is to enable the party in question to prepare and present their case on the basis of what is disclosed in the pleadings and no others. It is a fundamental right necessary for a fair trial.
26. The pleadings must define with clarity and precision the issues or questions which are in dispute, must give the other side fair and proper notice of the case has to meet , it serves to inform the court what are the precise matters t he court must decide. I bear in mind the dicta of Phillimore J;

“ the pleadings are not to be considered as constituting a game of skill between the advocates. They ought to be so framed as not only to assist the party in the statement of his case but the court in its investigation of the truth between the litigants.”^[5]

27. I note that the Tongan Rule is based on the Order 1 18 rule 19 of the English Supreme Court Practice before it was superseded by the ‘Wolf reforms’. I have accordingly been able to rely on the authorities cited in the commentary to that Order. I conclude that the Court has an undoubted power to prevent its process being abused, particularly if the allegations are scandalous, frivolous or apt or prejudice or delay a fair trial.
    
    5. THE ORDERS APPLIED FOR (CB page 3 )
28. Does this application establish that the part of the statement of claim is scandalous, frivolous or cautious or tend to embarrass or delay a fair trial?
29. Allegations of dishonesty and outrageous conduct are not scandalous if relevant to the issue. It was held that, “the main fact that these paragraphs state a scandalous fact does not make them scandalous.” ^[6]
30. It further further held in Christie that; “the sole question is whether the matter alleged to be scandalous would be admissible in evidence to show the truth of any allegation in the pleadings which is material with the reference to the relief prayed.”^[7]
31. As to the question of whether the statement of claim is frivolous or vexatious it has been held on high authority that the pleading must be so clearly frivolous that to put it forward would be an abuse of the process of the Court.^[8]
32. As to whether the action tends to prejudice embarrassed or delay a fair trial of the proceedings, this is subject to a liberal interpretation, but it does not and cannot mean that a claim is to be strike out as embarrassing merely because the other party states that it is untrue.^[9]
33. Finally, I consider the issue of abuse of the process of the court. This simply means that litigation must be bona fides the court will not permit it process to be used as a means of vexation and oppression: Castro v Murray [1854] EngR 673; (1875) 10 Ex 213.
34. It is to be noted that the power to invoke the inherent jurisdiction of the courts to prevent its process being abused is not relied on in the applicartion itself but advanced in the 24 June 2025 submissions. On the facts here nothing turns on that omission and I deal with all the allegations made in the round having regard to all the circumstances, disclosed or asserted.
    6. THE APPLICATION
35. I can do quite shortly by reference to the paragraphs of the Applicant’s notice filed on 20 May 2025, I will keep to the numbering in the application, Court Book page 2-6.
36. As to paragraph 1 of the Application, this is a general allegation, but no grounds are relied on and takes the matter no further.
37. As to paragraph 2 of the application, this alleges that the Anti-corruption Commissioner purports to be both the plaintiff and counsel prosecuting the claim in judicial review in circumstances where his role as made and provided in the Act, renders the Statement of Claim as pleaded in respect of the offending paragraphs scandalous, frivolous and/or vexatious.
38. As to paragraph 3 of the allegation this is misconceived. The Commissioners statutory duty is to investigate and act upon potential breaches of public trust and statutory obligations. The Commissioner is especially empowered in section 12, 13 and 21 of the Act to initiate proceedings. He often acts as counsel and investigator, and this is entirely within his statutory powers and indeed duties Prejudice and abuse are alleged but not further particularised and take the submission no further.
    
    7. THE GROUNDS (Court Book page 3-6)
39. As to paragraph 1 of the grounds. This alledges that the statement of claim must be concise and plead only material facts. I am satisfied that this it was this what it does.
40. As to paragraph 2 of the grounds, the statement of Claim is inter alia grossly embarrassing after the governor was required to engage in the provision of documents that were compulsorily and coercively procured under the Act. The statement of claim in my judgement essentially makes clear what the case is and the basis in law on which it is brought and its reasons. The fact that assertions are made as a result of documents produced under a compulsion is no ground for striking out such information.
41. As to paragraph 3 and 4 of the grounds it is alleged that the offending paragraphs [14, 15,16, 20, 25 together with 26 and 27] should be struck out since the claims made as to dishonesty, bad faith or fraud and breach of fiduciary duty are improperly pleaded because they do not represent the totality of the evidence as disclosed in the affidavit of Tevita ‘Aho.
42. As I indicated earlier the fact that an allegation of dishonesty or bad faith or fraud is made does not of itself entitle the action to be struck out. It simply means that this is a matter to be determined at trial. It is not the law that whenever dishonesty is alleged that, ipso facto renders the pleading an abus of process or otherwise liable to be struck out. In fact the tort alleged is misfeasance in public office.
43. As to paragraph 5 of the grounds this amounts to a complaint that the allegations of fraud, dishonesty or misfeasance in public office and breach of trust are not properly particularised, the remedy, if that is the case, is to seek further and better particulars for the matter to be dealt with, first by request and if not forthcoming by a discrete application, it is not a reason for striking out the claim.
44. As to paragraph 6 of the grounds see supra;
45. As to grounds 7 it is alleged that it is an abuse to compulsory procure material from the Defendant and seek to have it utilised in proceedings against them as pleaded is contrary to section(1) and 34 of the Act and in particular 34 (2) where evidence obtained from a witness in either a compulsory examination or preliminary investigation is inadmissible in any civil or criminal or disciplinary proceedings. This misunderstands the power of the Commissioner which is to prioritise the public interest and address serious and systemic corrupt conduct.
46. By section 19, it claims a privilege of secrecy are overridden. A document must be produced even if it would otherwise be protected from use in litigation. The Commissioner accepts that evidence from compulsory examination is inadmissible in civil/criminal proceedings. This does not preclude its use in investigations or judicial review, especially when it is not the sole basis.
47. As to the question of the confidentiality of investigations, section 86 of the Act allows disclosure when certified as necessary in the public interest. I also have regard to section 28(1) whereby the Commissioner is not bound by strict rules of evidence or procedure, supporting a flexible and non-tactical approach to review.
48. The purpose of judicial review is to determine whether the action taken by the parties was lawful or within the bounds of reasonableness. There is nothing before me to suggest that the Commissioner has overreached his statutory powers or failed in his statutory or legal duties.
49. As to ground 8 it is asserted that the injunction granted on the 10 February 2025 was an abusive process because the events in question were spent and no similar conduct was contemplated. This does not prevent the lawfulness of what happened being determined by the Court in judicial review proceedings. Injunctive relief is often sought to guard against future breach as a result of what happened previously.
50. There are reasonable grounds for the Commissioner to suspect that the same would happen in the future had this matter not been brought to light. The applicant the bank says that this is not in contemplation, if so, no prejudice arises in prohibiting what is not intended to occur, it is a cautionary measure which results in no prejudice. Injunctive relief sounds in equity the purpose of which is to achieve “complete justice” where the common law is lacking. A brief recounting of equity’s function can be found in Somayor J’s dissent in Trump v CASA Inc 202 (US 19 2025).^[10]
51. As to ground 9, reliance is placed on the Court of Appeal decision JSC VTB Bank v Shurkhin [2021] 1 WLR 434 and especially [51] and [52] . The applicants further state the decision is cited and relied upon in full for its protean a pronouncemnts of statements of principle for dismissal of proceedings as an abuse of process.
52. The paragraph particularly relied upon states follows;

“51. It is clear from the above authorities that, contrary to Berenger's contention, proceedings can be struck down as an abuse of process where there has been no unlawful conduct, no breach of relevant procedural rules, no collateral attack on a previous decision and no dishonesty or other reprehensible conduct. Indeed, the power exists precisely to prevent the Court's process being abused through the lawful and literal application of the rules, and most likely would not be needed or engaged where a party was acting unlawfully or in breach of procedural rules, where established rules of law or procedural sanctions would usually suffice to protect the court process. In my view Thevarajah is an example of such protection via the rules, alternatively the recognition of an issue estoppel, rather than a finding that the application in that case was an abuse of process. Recognised aspects of abuse of process include Henderson v Henderson abuse, bringing the administration of justice into disrepute and proceedings which are manifestly unfair to the other party (aspects which may well overlap), but the crucial question is whether, taking a broad merits-based approach, a party is misusing or abusing the process of the court.

52. In my judgment, the Judge was right to say that it may in principle, be an abuse of process for a party to seek to reopen an interlocutory order on the basis of treating as a material change of circumstances a development that is wholly within that party's control. If a party effected such a change immediately after losing the first hearing and issued a second application the very next day, that would self-evidently be an abuse, as Mr Lord QC, for Berenger, accepted in the course of argument. Equally, if a party waited several years before effecting such a change, then made a second application just as the other party, after incurring significant expense, was about to reap the benefit of the first order, that would also seem to be a clear abuse.”

53. It is my conlusion that the ratio decidendi gleaned from this authority is the determinative question whether “taking a broad merit based approach, a party is missusing or abusing the process of the court”.
54. Further assistance is to be dertived from the dicta of Buxton LJ where the sensitive nature of the enquiry was further emphasised in Laing v Taylor Walton [2007] EWCA Civ 1146, [at 12 and 49], after setting out the passage above from Lord Diplock's speech in Hunter, stated:

“The court therefore has to consider, by intense focus on the facts of the particular case, whether in broad terms the proceedings that it is sought to strike out can be characterised as falling under one or other or both, of the broad rubrics of unfairness or the bringing of the administration of justice into disrepute.”

55. Buxton LJ also emphasised that, although determining whether proceedings were an abuse of process was not an exercise of discretion, it was an exercise of judgment. In respect of which the Court of Appeal would always give considerable weight to the opinion of the judge. That approach was affirmed by the Court of Appeal in Michael Wilson & Partners v Sinclair [2017] 1WLR 2646 at [48].
56. I reject on the material now before me that any of those circumstances have been established. The commissioner has statutory duties to see to investigate corrupt conduct or whether believed to exist or suspected and if so to conside whether to bring proceedings.
57. There is no evidence here of an improper motive, malice or abuse of power. I can the nothing in the material which makes an application for judicial review (which I repeat is an inquiry into the lawfulness of the conduct under a challenge) an abuse of the courtry’s powers.
    
    8. FINAL RESULT
58. So looking at the matter broadly and taking a merits based approach, I can see nothing to suggest that any of the grounds for striking out the statement of claim has been made out.
59. I would also observe that should the statement of claim be struck out, the application for leave appears still to stand. Any discrete challenge to the admissibility of the evidence can be addressed at the trial, it cannot be a ground for striking out at this stage.
60. Accordingly, this application is dismissed and the Defendants must pay the Plaintiff’s costs to be taxed if not agreed.

^[1] Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1. [at p154 -157]
^[2] AXA General Insuance Ltd.v Lord Advocate [2011] UKSC 46.
^[3] R(on the application of Greenpeace Ltd.v Secretary of Trade and Industry) [2007] Env LR 29.
^[4] Attorney General v Dotcom NZSC 199.
^[5] Why Not (1968) L.R. 2 a.&E.265 at 266.
^[6] Brett LJ in Milligan v Loring (1881) 6QBD 190 at 196
^[7] Christie v Christie(1873) LR 8 499 p503
^[8] per Jeune P in Young v Holloway [1895] p87
^[9] per Bramwell LJ in Torquand v Fearon (1879)40 LLT 543 at 544.

^[10]The American legal system grew out of English law, which had two primary judicial institutions: the common-law courts and equity courts. Equity courts arose because of the inflexibility of the common-law system; their purpose was to look beyond formal writs and provide remedies where the common law gave inadequate relief. In Blackstone’s words, equity was meant “to give remedy in cases where none before was administered.” 3 Commentaries on the Laws of England, at 50. Adaptability has always been a hallmark of equity, especially with regard to the scope of its remedies. While common-law courts were “compelled to limit their inquiry to the very parties in the litigation before them,” equity courts could “adjust the rights of all, however numerous,” and “adapt their decrees to all the varieties of circumstances, which may arise, and adjust them to all the peculiar rights of all the parties in interest.” J. Story, Commentaries on Equity Jurisprudence §28, pp. 27–28 (2d ed. 1839). After all, equity’s “constant aim” was “to do complete justice.” J. Story, Commentaries on Equity Pleadings §72, p. 74 (2d ed. 1840). Accordingly, equity courts could “decid[e] upon and settl[e] the rights of all persons interested in the subjectmatter of the suit, so that the performance of the decree of the Court may be perfectly safe to those, who are compelled to obey it, and also, that future litigation may be prevented.” Ibid. For equity courts, injunctions were “manifestly indispensable for the purposes of social justice in a great variety of cases.” Story, Commentaries on Equity Jurisprudence §959a, at 227. Unlike this Court, then, those courts “constantly decline[d] ts Court, then, those courts “constantly decline[d] to lay down any rule which shall shall limit their power and discretion as to the particular cases, in which such injunctions shall be granted, or withheld.” Ibid. Justice Story underscored the “wisdom in this course”: Equity courts needed flexibility to craft injunctions for particular cases, as it was “impossible to foresee all the exigencies of society which may require their aid and assist their power to protect rights and redress wrongs.” Ibid. Justice Story underscored the “wisdom in this course”: Equity courts needed flexibility to craft injunctions for particular cases, as it was “impossible to foresee all the exigencies of society which may require their aid and assistance to [rotect rights and redress wrongs.