Home Blog Page 437

Supreme Court rules newspaper be returned to register in latest stage of defamation action

By
Kaniva Staff
-

In the latest twist in a series of legal battles dating back to 2014, the Supreme Court has ordered that the Tonga Weekly Newspaper Ltd be restored to the Register of Companies.

On March 29, 2019, Mele ‘Amanaki began proceedings against the Tongan Government, the Tonga Weekly Newspaper Ltd, Faka’osi Maama, the editor of the newspaper operated by the company and  William Clive Edwards, then a director of the company for damages for defamation arising out of articles published by the newspaper on 20 March 2014, 1 1 April 2014 and 9 May 2014.

On December 10, 2019, Lord Chief Justice Whitten  granted the Government’s application to strike out the claim against it and reserved leave to the plaintiff to re-plead any claim against the Government by 10 January 2020. No new pleading was filed.

During the course of the strike out application, it was revealed that the company was registered on 1 June 1, 2012; was entirely Government owned and had been removed from the Tongan register of companies and  deregistered.

The judge said that under the Companies Act, a company continued to exist until it was removed from the Tongan register.

Accordingly, it was necessary to stay the proceeding pending the hearing and determination of any application by Mrs ‘Amanaki to restore the company to the register in order to  determine whether she could proceed against the company in the defamation action.

The Government argued that Mrs ‘Amanaki did not have any undischarged claims against the company at the time it was removed from the register and had not initiated any legal proceedings against the company during its existence.

It also argued that the decision to deregister the company was made in the public interest, but that restoration would not be in the public interest because any related costs would have to be borne by the public and;  further, that the company no longer has any assets, officers or employees and would not be able to fulfil its obligations under the Act.

On  April 14 this year 2020, Mrs ‘Amanaki filed a memorandum in which stated that at the time the company was removed from the registry she had an undischarged claim against it.

In April 2014 she told her employer (the Executive Board of the Public Service Association) of her intention to sue the company for defamation.

That same month she wrote to the editor of the newspaper of her concerns about the alleged defamatory publications and to the then Prime Minister (whom she describes as “the head of the shareholder of the newspaper”) about her concerns regarding the alleged defamatory publications.

The court considered at length a number of issues regarding the wording and exact mechanism of removing a company from the register and the status of various defamation actions that had been initiated by Mrs ‘Amanaki.

Upon consideration of these matters and a number of legal precedents, Lord Chief Justice Whitten granted the application to restore the Tonga Weekly Newspaper Ltd to the Tongan register of companies.

He ordered that the company and its directors must immediately file all outstanding annual returns under the Act and pay all relevant fees and penalties.

No point in appeal says Lord Chief Justice in rejecting appeal over 2013 assault case

By
Kaniva Staff
-

The Supreme Court has turned down a request for an extension of the appeal period arising from a case in 2013.

On 1 February 2019 Siope Falevai pleaded guilty to one count of common assault.

The offence occurred in 2013 when the Respondent was a 17 years-old schoolboy. Magistrate Tuita sentenced Falevai by way of reprimand.

On June 18 2020, Falevai filed an application for an extension to the 28 day appeal period provided by the Magistrates Court Act. The grounds for the application were stated as being that there were strong grounds of appeal and being in the interests of justice.

Immediately after the sentence, the former Director of Public Prosecutions instructed the Crown Prosecutor assigned to the matter, Lute Fakatou, to return to Court “because there is no such sentence as a reprimand under law”;

Between February 4, 2019 and  June 24, 2019, a number of unsuccessful attempts were made (including with the Attorney General) to discuss the matter with the Magistrate.

On April 6 2020, she informed the Registrar of the Magistrates Court that the Respondent had not been properly sentenced and proposed that the matter be recalled in Vava’u where the respondent was living to be properly sentenced by the Magistrate there.

The Magistrates Court responded that the decision of February 1 stood and that the only avenue available was to appeal.

Falevai argued that the sentence was an ‘administrative error’ because a reprimand was not provided in the Criminal Offences Act. Further, he argued that the 28 day appeal period expired on 16 June and therefore the relevant delay therefore was only two days.

The Supreme Court ruled that while it was true that a reprimand was not one of the sentencing tools expressly provided by Part IV of the Criminal Offences Act, the material on the application did not reveal any consideration as to whether the Act was to be interpreted as an exhaustive code of the only sentencing options which could be inflicted.

“I am not aware of any other instances in Tonga where a reprimand has been given by a Magistrate as a means of dealing with a common assault charge,” Lod Chief Justice Whitten said

“There has been substantial delay in bringing this application which has been poorly explained and fuelled by a misconception as to the true nature of the Magistrate’s decision and what ought to have been done about it.

“I see little to no practical utility in the appeal.”

 

Ashika loss still haunts son who heard his mother calling his name as the ship sank

By
Kalino Latu
-

The son of a woman who died when the MV Princess Ashika sank nine years ago said the tragedy still haunted him.

Siaosi Lavaka, 44, and his mother Lavinia Lavaka, 66, were expected to arrive at Ha’afeva in August 2009 to visit his bed-ridden father ‘Aleki Lavaka. Only Siaosi made it to the island.

Siaosi said he heard his mother calling his name when the doomed ferry sank, but darkness prevented him from reaching her.

That was the last moment he heard from Lavinia.

The vessel sank on 5 August 2009 and a government report released two weeks after the tragedy showed 54 men were rescued and 74 people were lost.

Only two bodies were recovered, with 72 missing. Of the 68 passengers and four crew who died, five were foreign nationals. Two of the missing passengers remain unidentified

A tearful Siaosi claimed in an interview with Kaniva News on Tuesday the vessel’s electrical power was off and no one could reach those in the inner top deck where his mother was waiting for him.

He said wind and waves repeatedly slammed into the ferry shortly after they left Nuku’alofa and Lavinia asked him to go down and check their cargoes in the cabin.

When he returned the vessel overturned and he could not find his way up the top deck.

Lavaka said he heard people shouting and yelling while her mother kept calling his name.

He said three youths were at the door of the cabin and when he understood he could not reach his mother he decided to save the children.

He later thought if he had been able to reach his mother, they were both dead.

“I thought at the time if I love my mother I better save the lives of these youths,” an emotional Siaosi said.

He said he rescued the three youths by asking them to hold on and stick onto the wall of the ferry while it was half overturned.

When the Princess Ashika completely overturned they climbed to the top and found themselves safe.

Those who were made it out of the Ashika were picked up by the MV Pulupaki which arrived shortly after the ferry sank.

When they arrived at Ha’afeva the residents were waiting crying at the beach as the news of the tragedy had already reached them, Siaosi said.

“What struck me most was the wish of my father to see his wife alive, but unfortunately she could not make it to see him,” Siaosi said.

Siaosi claimed some passengers attempted to flee and seek protection at the stern but some of them were killed by the vessel’s propeller as it was still turning.

Siaosi said the government compensated each person who was rescued alive from the tragedy with TP$8000.

“In my view that money was too small compared to my mother’s life and the disaster which happened,” he said in Tongan.

The captain of the Princess Ashika told news media shortly after the tragedy that the Government knew about the condition of the boat because they surveyed it before purchasing it.

He said financial pressure was the main reason the ship had not been stopped by officials, or the shipping company’s managers.

“They have no time to delay the boat to repair the boat,” he said.

The then opposition Leader ‘Akilisi Pohiva claimed at the time the government made the move to operate the unseaworthy ship because of political motives. Leaders of the then government did not want the domestic services to be dominated by the Uata Shipping Services.

The Services belonged to former MP ‘Uliti Uata who was a strong supporter of Hon Pōhiva and the democratic movement.

For more information

Ashika tragedy: Tonga does not have money to pursue legal action, says PM

First flight from Auckland leaving tomorrow; passengers must prove they are Covid-19 free

By
Kaniva Staff
-

The first repatriation flight from New Zealand to Tonga is expected to leave Auckland tomorrow morning.

About 140 Tongans will be on the flight.

Passengers will have to prove they have been tested and found to be free of the virus.

Health CEO Dr Siale ‘Akau’ola said passengers would include doctors, nurses, police, soldiers, public servants including one Government CEO, who all remain on the government pay roll.

They were  being given priority because they were  needed in Tonga to support the repatriation work.

Half of those going home will be Recognised Seasonal Employee workers who have been stranded in New Zealand for  months by the Covid-19 lockdown and border closures.

Priority for RSE workers has been given to workers whose parents or spouses have died.

As reported in Kaniva News, the Tongan government has said its priority is to keep the kingdom safe from the Covid-19 virus, which means it will bring home Tongans from countries where there is no community transmission.

The government said last month that eventually everybody who wanted to come home would be flown back, but asked families to be patient.

It has been 93 days since New Zealand last saw a case of COVID-19 with no known source.

However, parts of Australia, where Tongan seasonal workers are also stranded, are in crisis, with the southern state of Victoria facing an emergency.

There were direct flights from Melbourne and Sydney to Nuku’alofa in the past.

New Zealand Prime Minister Jacinda Adern said today Australia would need to have 28 continual days with no community transmission before any trans-Tasman bubble could be established which would allow regular travel.

It is understood that about 2000 have registered on the government’s repatriation website to be flown home.

Meanwhile, Tonga’s Health Minister is recovering in Vaiola hospital, but is expected to return to work tomorrow.

The main points

  • The first repatriation flight from New Zealand to Tonga is expected to leave Auckland tomorrow morning.
  • About 140 Tongans will be on the flight.

Judge suspends sentence in drug cultivation case, says prisoner accepted error of his ways

By
Kaniva Staff
-

A man has had his prison sentence for cultivating marijuana suspended for two years.

Filomila Kaufusi pleaded guilty on May 4 this year of cultivating 17 cannabis plants, weighing 94.45 grams.

In the Supreme Court, Judge Niu, presiding, sentenced Kaufusi to two and-a-half years in prison, but suspended the sentence for two years on condition that he did not commit any offence punishable by imprisonment within those two years.

The judge said the prisoner’s probation officer had recommended a full suspension of sentence.

The officer said Kaufusi was working for a construction company making cyclone relief houses.

The judge said letters written by Kaufusi’s bishop and his village’s town officer spoke highly and warmly changes he had made to your life.

“I accept that evidence,” Judge Niu said.

“They are evidence that you will make use of the opportunity, if it be given to you, to continue to make a worthwhile life for you and for your wife and for your children.

“If I was to sentence you to prison without suspension, you would   lose your job, you would be separated from your wife and children.

“You would be thrown back to the deep end where you were, to be together with the other convicts whom you are now trying to distance yourself from. I do not consider that justice demands that.

“You have truly shown your remorse by pleading guilty and accepting the error of your ways and you have rehabilitated yourself already. I do not need to be convinced that you will make use of the opportunity of suspension because you have already shown it.”

Judge Niu ordered that the drugs confiscated from the prisoner be destroyed.

It’s vital to vote so your voice is heard in Parliament and on drugs and euthanasia bills that could change New Zealand society

By
Philip Cass
-

Kaniva News commentary August 1

New Zealand goes to the polls next month and it is vital that you vote.

New Zealand is a democracy and it is only by voting that you can ensure that Parliament reflects the individuals and parties that you voted for.

It is also vital that the voice of smaller communities like Tongans be heard and that Pasifika as a whole have a voice in Parliament.

This year voters can also have their say on two referenda that could have far reaching effects on New Zealand society.

Voters in New Zealand will be able to cast their ballot from Saturday September 5 to 7pm on election day, Saturday September 19. New Zealanders overseas can vote from Wednesday 2 September.

Referenda

At this year’s general election, voters can vote on two referenda. The first referendum is about the End of Life Choice Act 2019. The Act is intended to give people with a terminal illness the option of requesting assisted dying.

According to the Electoral Commission to be eligible for assisted dying, a person must meet all of the following criteria. They must: be aged 18 years or over,     be a citizen or permanent resident of New Zealand,    suffer from a terminal illness that is likely to end their life within six months, be in an advanced state of irreversible decline in physical capability,     experience unbearable suffering that cannot be relieved in a manner that the person considers tolerable, be able to make an informed decision about assisted dying.

Assisted death means that the person will take, or a doctor or nurse will administer, administer medication that will kill them.

Parliament passed the End of Life Choice Act, but it has not come into force. The Act will only come into force if more than 50% of voters in the referendum vote ‘Yes’.

The Act has been widely opposed by  politicians, churches and by public figures such as former Prime Minister Sir Bill English who told a Parliamentary enquiry  that in comparison with overseas legislation the Act was weak in protecting patients from abuse.

Speaking in Parliament last November, Tongan-born Labour MP Anahila Kanongata’a-Suisuiki said: “I believe and support the concept of death with dignity and comfort, with the context of effective pain relief and loving care for those who are desperately ill and facing death.”

“I believe the core of the bill—the purpose—is to sanction in the law of the land the premature ending of a human life.”

Kanongata’a-Suisuiki, who attends the Papakura Tongan  Methodist church, said not all Pacific people or Tongans opposed the Act, but said that the choice to end life prematurely was only the  beginning of a process that involved the dignity of other people.

In opposing the Act, she  noted that 1500 doctors had registered their opposition to the bill.

The second referendum is about the legalisation of the recreational use of cannabis. The Legalisation Bill would allow people to possess and consume cannabis in limited circumstances.

Supporters of decriminalisation argue that it would benefit society by eliminating the illegal supply of the drug, controlling how much was for sale and restricting young people’s access to the drug.

The Commission said that under the legislation, a person aged 20 or over would be able to    buy up to 14 grams of dried cannabis (or its equivalent) per day only from licensed outlets,     enter licensed premises where cannabis is sold or consumed,  consume cannabis on private property or at a licensed premise, grow up to two plants, with a maximum of four plants per household, share up to 14 grams of dried cannabis (or its equivalent) with another person aged 20 or over.

If more than 50% of people vote ‘Yes’ in the referendum, recreational cannabis would not become legal straight away. After the election, the incoming Government could introduce a Bill to Parliament that would legalise and control cannabis. This process would include the opportunity for the public to share their thoughts and ideas on how the law might work.

The New Zealand Medical association has opposed the proposed legalisation of cannabis.

NZMA Chair Dr Kate Baddock said cannabis was a harmful drug that caused a range of health and social harms at the individual and community level.  The NZMA did not condone the use of cannabis for recreational purpose and opposed legalisation to legalise it.

“In addition to the physical harm caused by cannabis its use creates social and psychological harm, particularly for younger people,” Dr Braddock saisd.

“We would like to see is the government undertaking targeted initiatives to reduce the social inequalities that increase the risk of harm from drug use and meaningful investment into education and treatment programmes.”

You can download information in Tongan about the election here: https://vote.nz/

Body of deceased Tongan nurse to return home on repatriation flight from New Zealand

By
Kalino Latu
-

The body of a nurse at Vaiola Hospital is expected to be returned home to the kingdom next week.

Pafilio ‘Amato was in Auckland for treatment while battling cancer but he died this week Wednesday 29.

His family announced the news in a Facebook post yesterday.

“Pafilio was tormented by cancer illness for few months and today He is desire to depart and be with the Lord, which is better by far. Hundreds of families and friends are heartbreaking by your gone but we do sure you are in a better place of no more pain!” the post read.

He was 30 years old.

Tonga’s Ministry of Health CEO Dr Siale ‘Akau’ola said this morning the deceased’s name was registered online and was on the list of the repatriation flight passengers before he died.

He said the government had been in contact with the deceased’s family and New Zealand authorities to make sure the process for its returning meets Tonga’s legal requirements.

He said once in Tonga a Ministry of Health team will monitor and take care of Amato’s funeral.

As Kaniva News reported yesterday, a second repatriation flight will bring 150 passengers from New Zealand on Tuesday, August 4.

They will be quarantined for two-weeks at  the Tanoa Hotel in Nuku’alofa and Taliai Military Camp in Fua’amotu.

Kaniva mediawatch July 31, 2020

By
Kaniva Staff
-

Yachts

An American yacht, the Sailing Zatara, which arrived unannounced at the  Minerva Reef earlier this month, is now in Fiji.

The Zatara, carrying a family of six, had been denied entry in March, but still sailed for Tonga.

Meanwhile, the Tahitian-based yacht Nadine as due to leave Vava’u harbour today after entering the port due to an emergency.

The yacht’s owners said they had encountered problems during a storm while sailing from Tahiti to Fiji.

They were told they could stay until today and earlier reports indicated they could be escorted out of Tongan waters by a navy patrol boat.

Fiji has opened its maritime borders to yachts which qualify for a visa.

Tongans in US census

The National Tongan American Society urged Tongans in the US to take part in this week’s United States census and  make sure their data was recorded.

It said an accurate count could help fund transport, education, child care and housing.

Tevita Kaili, a Tongan academic lecturing in cultural anthropology at Brigham Young University in Hawai’i, said the census was important  because it meant an accurate count of how many Tongans were in the US.

According to the 2010 census there are about 57,000 people of Tongan descent living in the United States and its territories.

They are the fourth largest group of Island descent in the US and live mainly in California, Hawai’i, Utah, Texas, Alaska and Nevada, as well as American Samoa.

Economy shrinks 

Tonga’s economy is expected to shrink by 3% in the current financial year and another 4% in the next financial year, according to the latest report from the Asian Development Bank.

The July edition of the ADB’s Pacific Economic Monitor said the Covid-19 pandemic had disrupted the  beginning of a recovery in tourism numbers following Cyclone Gita.

It said Covid-19 was the biggest economic challenge to Tonga in living memory and there was little the government could do to directly address the effects of the global economic slowdown.

Overall Pacific island economies were expected to contract by 4.3%, mostly due to travel restrictions severely restricting tourism flows.

Youth ‘traumatised’ 

Young Pasifika people are often traumatised by the their parents  clinging to their old culture and rejecting western ideas, according to the leader of a new youth help programme in Sydney.

“The parents hold on to all the old culture at all costs, pushing out the western ideas. And that’s actually, to some extent, traumatizing the young individuals because they’re more alone than ever before,” Uniting Church minister Rev. Mel Pouvalu said.

She said this was contributing to the numbers of  young people from Tonga, Samoa, the Cook Islands and other Pacific nations getting into trouble and not knowing where to get help when they did.

Rev. Pouvalu is supervising a new programme, The Restore Project, aimed at helping young people who are at risk.

Rev. Pouvalu said the problem would only get worse without Pacific people providing support.

Young people of Pacific descent, including Tongans and Samoans are statistically over-represented in crime and other problems and often end up in jail or on the streets.

Climate crisis 

The climate crisis facing Pacific island nations such as Tonga has not stopped because of Covid-19, an environmental leader has warned.

Genevieve Jiva from the Pacific Climate Action Network said the climate crisis remained the single greatest threat to the Pacific.

Tonga has experienced  more severe cyclones, continuing coastal erosion, sea level rises and the contamination of fresh water sources by sea water as a result of global warming.

This year’s Pacific Forum meeting has been  postponed and countries and environmentalists fear that with governments focused on the coronavirus pandemic momentum could be lost.

Climate advocates have called on Pacific leaders to continue action on climate change and keep the pressure on Australia to reduce its carbon emissions.

Ms Jiva said civil society groups would continue to lobby and carry out their climate advocacy work in the background.

 

Warriors players stuck in Australia as NRL officials call on NZ government to let them in

By
Kaniva Staff
-

Warriors players Eliesa Katoa and Selestino Ravutaumada remain stranded in Australia.

They have been refused permission to travel back to New Zealand because they are not  New Zealand citizens.

Both have lived in New Zealand on work visas and Ravutaumada played for the Junior Kiwis rugby league team.

Neither will not be allowed back under the revised Covid-19 rules when the rest of the Warriors come home.

NRL head of government relations Jaymes Boland-Rudder has been negotiating with Prime Minister Jacinda Adern’s office for several weeks to get the bans lifted.

NRL officials were able to get exemptions in May for Warriors players, and later some family members, to travel to Australia for the 2020 competition.

Ravutaumada is Fijian, but cannot go to Fiji because he will not be able to receive the necessary treatment for a shoulder operation.

The club will decide to re-sign him depending on how he recovers from surgery.

Warriors CEO Cameron George has already assured the pair they would be put up at his family home if they were not allowed to return to New Zealand.

George said the two players had the appropriate visas to be in New Zealand and could demonstrate they were residents because they had been to school and lived there.

“What are we going to do? Drop them off and leave them on the shores of Australia?

“I call on the New Zealand government to review and reconsider this.”

The main points

  • Warriors players Eliesa Katoa and Selestino Ravutaumada remain stranded in Australia.
  • They have been refused permission to travel back to New Zealand because they are not New Zealand citizens.

Search underway for missing sea cucumber fishing boat in Ha’apai

By
Kalino Latu
-

Search and rescue teams have scoured the Ha’apai seas for a missing sea cucumber diver since Tuesday night.

The missing fisherman was one of a group of 14 divers from Pātangata who travelled by three boats from Tongatapu for a sea cucumber fishing in Lulunga, Ha’apai.

Deputy Commissioner ‘Atunaisa Taumoepeau told TBC’s Television news the missing diver left the group in one of the boats heading to another island and he has not been heard from since.

That boat’s engine broke down after they left Tongatapu but it was fixed before they arrived in Ha’apai, he said.

Taumoepeau described the situation as “dangerous” because of the current severe weather warning for Tonga.

The news comes after about a fortnight ago when Police said they were concerned after a 60-year-old man died while diving for sea cucumbers at Koloa, Vava’u.

The deceased was the third within a week after two sea cucumber divers died in Tongatapu on July 6.

How these divers died was still unknown.

But critics have argued on social media that authorities haven’t done enough after it was clear death while diving for sea cucumbers has been reported from time to time since sea cucumber fishing began in 1980s.

In 2012 a diver died after using a method known as hookah diving while diving for sea cucumbers in Ha’apai.

That deceased was the third fisherman to die in a week.

Hookah diving uses an engine on a boat pumping compressed air to a diver below the surface.

Police said at the time the method was dangerous and illegal.

1...436437438...957Page 437 of 957