Public Service Commission v Fifita [2025] TOCA 2; AC 1 of 2025 (16 May 2025)

IN THE COURT OF APPEAL IN TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

AC 1 of 2025
[CV3 of 2024]

BETWEEN
PUBLIC SERVICE COMMISSION
Appellant

AND
MARY MAGDALENA TAFA FIFITA
Respondent

Hearing
7 May 2025

Court
Randerson, Harrison and Morrison JJ

Appearances
Sione Sisifa SC Solicitor General, for the Appellant
Dana Stephenson KC for the Respondent

Judgment:
16 May 2025

JUDGMENT OF THE COURT

Introduction

[1] The Respondent, Mary Fifita, was for many years employed by the Ministry of Tourism in Tonga (the Ministry) in senior positions. In January 2024 she was dismissed by the Public Services Commission (the Commission) from her position as an acting director at the Ministry.
[2] The Commission is established pursuant to Part II of the Public Service Act 2020, and its functions include disciplining senior public service employees^[1]. Its procedural requirements are found in the Public Service (Disciplinary Procedures) Regulations (“the Regulations”).
[3] Mrs Fifita’s dismissal followed an internal disciplinary investigation conducted by the Commission and a finding that she had been guilty of corrupt or dishonest behaviour accompanied by a complaint laid with the Police in Tonga.
[4] In the Supreme Court, Justice Cooper upheld Mrs Fifita’s challenge to her dismissal brought by way of an application for judicial review. The Commission appeals on 17 grounds.

Background

(a) Complaint

[5] We draw the relevant background from the judgment under appeal and a commendably concise amended statement of claim filed by Mrs Fifita.
[6] On 11 April 2023 a training coordinator at the Ministry, Siosaia Pahulu, sent a letter of complaint about Mrs Fifita to the Commission. In summary, Mr Pahulu’s complaint alleged that:

• [a] Mrs Fifita in her then capacity as the Ministry’s deputy chief executive officer had engaged the services of a company named Matapa Services to deliver training sessions.
• [b] Matapa Services was a company registered under the name of Mahina Fifita, Mrs Fifita’s daughter.
• [c] The engagement and payment of fees to Matapa Services at Mrs Fifita’s behest constituted a conflict of interest and a breach by her of the public service regulations and policies.

[7] The apparent background to Mr Pahulu’s complaint is that Tongan public service employees are prohibited from providing purchasing privileges to families and relatives^[2] or from acting in situations where their personal interests conflict with their employment obligations^[3]. Mr Pahulu’s letter referred to the Ministry’s entry into four contracts with Matapa Services to provide what were described as “specialised or professional training services” for a total consideration of $55,300. The separate contracts were described as providing training manuscripts for such subjects as food and beverage handling skills, supervisor training skills and cooking skills. Mrs Fifita’s husband was involved in Matapa’s activities as well as her daughter.
[8] Mr Pahulu’s letter drew attention to Matapa’s brief handwritten invoices for these professional services, broken down into various items. Payments were made in five instalments, below what was the government procurement threshold of $20,000. Contracting entities are prohibited from artificially dividing the object of procurement with the intention of avoiding the thresholds applied for the purpose of determining the appropriate procurement method^[4]. Mr Pahulu noted also that provision of these training manuscripts was not a technical assistance service of the type for which the Ministry normally contracted outside assistance; and that there was no program for auditing or verifying compliance with the contractual provisions.
[9] Mr Pahulu’s letter concluded with a statement that it would be appropriate to observe the elements of natural justice and to hear Mrs Fifita’s account before the Commission made a final decision.

(b) Regulatory Framework

[10] Reg 5 governs the start of the disciplinary process. By Reg 5.1:

“In the case where an employee is alleged to have committed a serious breach of discipline...the Chief Executive Officer or his authorised representative, shall inquire into the matter”

[11] Reg 5.2 provides:

“If the Chief Executive Officer determines that there has been a serious breach of discipline...he shall forward a complete report to the Chief Executive Officer of the Commission, which shall include the following:

(a) the allegations against the employee
(b) any complaint made against the employee, whether by a public servant or a member of the public
(c) the reasons that the breach is deemed by the Chief Executive Officer as a serious breach of discipline
(d) the facts gathered from the inquiry
(e) official records or documents relevant to the serious breach of discipline
(f) a report from the Auditor General if any
(g) a report from the Tonga Police if any
(h) any internal correspondence with the employee relating to the serious breach including emails
(i) any representation from the employee
(j) any statements from witnesses.

Provided that the Chief Executive or his Ministry shall not... make any recommendations regarding the allegations...”

[12] By Reg 7 A the Commission is required to convene a Charge Formulation Committee within 10 days of receipt of a report of a “...serious breach of discipline”; and within 15 days of receipt the Committee “...shall charge the employee”. The Committee is constituted by the chief executive officer of the Commission, the Auditor General, and the Solicitor-General (or their representatives). It is empowered to lay the appropriate charges against an employee^[5].
[13] Ms Stephenson KC for Mrs Fifita emphasised that:

[a] Reg 7A (2) mandates two specific functions for the Committee. One is to consider the Reg 5 report. The other is to seek further clarification on the report from the Chief Executive Officer or any other person.

[b] Reg 7 A (3) empowers the Committee to lay the appropriate charges against the employee, to recommend suspension, and direct the Ministry’s Chief Executive Officer to provide further information within 10 days to clarify the report.

(c) Investigation

[14] On 4 May 2023, nearly a month after submitting his complaint, Mr Pahulu sent a follow-up letter to the Commission, requesting it to expedite its investigation of the complaint and suggesting that an audit investigation be carried out into its subject matter. In the meantime, he had emailed one of the Commissioners personally about his complaint.
[15] The Commission had in fact met the day earlier, on 3 May 2023, to discuss Mr Pahulu’s complaint. In a memorandum sent on 5 May the Commission directed the Ministry’s newly appointed Chief Executive Officer, Viliami Takau, to obtain and provide all relevant information pertaining to the matters raised in the complaint. It sought records of attendances and materials issued at Matapa’s training sessions; purchase orders and invoices for payment; processes used to select Matapa to provide training services; and the basis for the training it provided.
[16] On 11 May 2023 senior executives of the Commission met to discuss Mr Pahulu’s complaint. Among those present was the Commission’s Chairman and its Chief Executive Officer who is also chairman of the Commission’s Charge Formulation Committee^[6]. The Commission’s minutes of that meeting record that it deemed that Mr Pahulu’s complaint established that Mrs Fifita had committed a serious breach of discipline. The Commission executives resolved to hand the issue to the Committee for the necessary action; that is, to lay charges against Mrs Fifita.
[17] On 26 May 2023 the Charge Formulation Committee met to discuss Mr Pahulu’s complaint. At that stage it was realised that Mr Takau had not provided a Reg 5.2 report. So the Commission instructed him to conduct an investigation into the complaint.
[18] Subsequently, Mr Takau commenced an investigation. On 19 June he advised Mrs Fifita that a complaint had been made against her. He interviewed Ms Fifita briefly to discuss the complaint on or about 22 June. But did not then or at any other time during his investigation give her a copy of the complaint. Mr Takau advised Ms Fifita at that meeting that her role as an acting director would cease. She was effectively demoted.
[19] On 29 September 2023 Mr Takau submitted a written report to the Commission. In summary:

• [a] Mr Takau found that Mr Pahulu’s complaints were valid; confirmed his belief that “the facts constituted serious misconduct”; and acknowledged that the former chief executive officer of the Ministry, Sione Moala Mafi, had signed two of the contracts as the former chief executive officer and “was aware of it and had approved of it”.
• [b] Mr Takau referred to his meeting with Mrs Fifita on 22 June to discuss the complaint. She had confirmed her disclosure to Mr Moala Mafi of her familial association with Matapa, and that he had signed the first and fourth contracts with that knowledge. She had signed the second and third contracts while he was on leave and she was the acting chief executive officer.
• [c] Mr Takau’s conclusion of serious misconduct was expressly based upon a document which was annexed, described as “Audit Exit Notes Issues”. The author is not identified but presumably he or she was a member of the Ministry ‘s audit staff or of the Auditor-General’s office. The document outlined alleged breaches by Mrs Fifita of her statutory duties and recommended that she be “...severely disciplined for corruption and committing fraudulent activity that involved spending of public funds”. In adopting this recommendation, Mr Takau’s report noted his belief that “...the facts constitute a serious misconduct as stipulated in the auditor’s note regarding public financial mismanagement and procurement regulations”. There is no evidence that Mrs Fifita was interviewed for the purpose of preparing the auditor’s note. Nor was a copy of it given to her.
• [d] In breach of the prohibition imposed by the Reg 5.2 proviso, Mr Takau concluded with a recommendation that Mrs Fifita be given a final warning and/or be demoted.
  

Disciplinary Charges

[20] On 6 October 2023 the Commission formally provided a copy of Mr Takau’s report to the Charge Formulation Committee. At a meeting on 19 October the Committee resolved to charge Mrs Fifita with 27 breaches of the Public Service Code of Ethics and Conduct 2010. The first four charges alleged that she had artificially subdivided the one contract for $45,800 (a different figure from the $55,300 noted in Mr Pahulu’s complaint) into four separate contracts to bring them under the procurement threshold of $20,000. Another 21 charges were related to allegations of wrongly influencing the expenditure of public funds by contracting with a company to which she has a familial association. The final two charges alleged a failure to assign an appropriate senior officer to ensure that the promised services had been delivered.
[21] On 27 October 2023 the Committee formally charged with Mrs Fifita with the 27 serious breaches of discipline. Mrs Fifita responded within a fortnight, disputing all charges. The Committee noted that Mrs Fifita “had not defeated any of the 27 charges laid against her”.
[22] On 29 November 2023 the Commission informed Mrs Fifita of the disciplinary recommendations being made by its chief executive officer relating to the charges made against her and of its intention to take a number of steps including dismissal and referral of the complaint to the Tongan Police for further investigation.
[23] On 6 December 2023, Mrs Fifita wrote to the Commission to respond to the disciplinary recommendations contained in its previous letter.
[24] On 10 January 2024, after Mrs Fifita had unsuccessfully invoked the statutory appeals process, the Commission advised her that pursuant to a decision made on 9 January, she was dismissed from the public service effectively from 11 January 2024 and that the chief executive officer was to report the matter to the Tongan Police for further investigation.

Claims

[25] Mrs Fifita pleaded four causes of action based on these facts.
[26] First, she pleaded that she had been denied her right to be heard before the charges were laid, as required by Reg 5(2). Among other things, the Regulation required that the report include any representation from Mrs Fifita. However, Mr Takau’s report had failed in this respect and, further, he did not at any time during his preparation of the report provide Mrs Fifita with a copy of the complaint or give her an opportunity to make representations in response to the serious allegations made against her for inclusion in his statutory report. The report was thus incomplete and failed to comply with the Regulations. This failure not to seek or include representations from Mrs Fifita prior to the Commission’s decision to charge her with serious breaches of discipline denied her right to be heard and in turn infected the entire disciplinary proceeding by the Commission. It was thereby procedurally improper and unlawful.
[27] Second, Mrs Fifita alleged that the investigation was incomplete and Mr Takau’s report was biased. This was because Reg 5(2)(j) requires the report to include any statements from witnesses. The report recorded Mr Moala Mafi’s involvement in the matters which formed the subject of the complaint. As such it was reasonable to assume that he was a person who might have information relevant for inclusion in the report. However, the report did not refer to obtaining information from him or of attempts to contact him. This omission to provide information from a relevant witness rendered the report incomplete and one sided, and unfairly biased. It was an unreliable foundation on which to lay serious disciplinary charges.
[28] Third, Mrs Fifita alleged that Mr Takau’s report provided prohibited or irrelevant information, in breach of Reg (5)(2)(l)(i). The report included a recommendation to the effect that Mrs Fifita be given a final warning and/or be demoted. This statement breached the Regulations and contained irrelevant information which the Commission took into account when deciding to dismiss Mrs Fifita.
[29] Fourth, Mrs Fifita alleged bias, fundamental unfairness and an abuse of power. Mrs Fifita alleged that the Commission’s decision to charge her with serious breaches of discipline without first giving her an opportunity to be heard in response to the allegations was a breach of natural justice. It was so fundamentally unfair as to amount to an abuse of process. As a result, the entire disciplinary process was infected with procedural impropriety and the consequent decisions were unlawful.
[30] In this respect, Mrs Fifita alleged that the Commission failed to act impartially and was clearly biased in its decision on 27 October 2023 giving notice of the charges being laid against her. That was because the Commission had already improperly concluded on 11 May 2023 that Mrs Fifita had committed a serious breach of discipline; and the chairman of the Commission’s Charge Formulation Committee responsible for charging Mrs Fifita was present at that meeting.

Supreme Court

[31] Mrs Fifita sought consequential declarations and orders, together with costs on a solicitor/client basis. Justice Cooper upheld this application and declared that the Commission’s decisions were manifestly unfair and wrong in law. He made consequential orders quashing the charges brought by the Commission against Mrs Fifita and the Commission’s decision to dismiss her from the Public Service and report the matter to the Tongan Police for further investigation. Costs were reserved.
[32] Counsel refined the issues arising from Mrs Fifita’s amended statement of claim for determination by the Supreme Court as follows:

• [a] Whether the Charge Formulation Committee is a separate independent statutory body from the Commission, which is capable of suing and being sued and whether the charges of serious breaches of discipline made by the Commission on 27 October 2023 were laid by the Charge Formulation Committee or the Commission.
• [b] Did Mr Takau’s failure to provide Mrs Fifita with a copy of the complaint deny her a full opportunity to make representations in response to the allegations of serious breaches of discipline and thus breach the requirements of natural justice; constitute a failure to comply with Reg 5(2)(i), thereby invalidating the report; and infect the disciplinary procedure which followed after the submission of Mr Takau’s report with procedural impropriety?
• [c] Was Mr Takau’s decision not to interview or attempt to interview the former chief executive officer, Mr Moala-Mafi, relating to the subject matter of the complaint an unreasonable circumstance where the Commission had admitted that Mr Moala-Mafi may have had possession of relevant information; a failure to comply with Reg 5(2)(j) thereby invalidating the report; resulting in an incomplete and unfairly biased report; and infect the disciplinary procedure which followed with procedural impropriety?
• [d] Was the inclusion of the recommendation in Mr Takau’s report that Mrs Fifita be given a final warning and/or demoted a breach of the prohibition contained in Reg 5(2)(i), having the effect of infecting the disciplinary procedure with procedural impropriety?
• [e] As of 11 May 2023, were the Commission and the chairman of the Charge Formulation Committee unfairly biased against Mrs Fifita?

[33] Both parties filed affidavits and briefs of evidence in the Supreme Court and a comprehensive record of the primary documents was produced by consent. The thrust of the Commission’s evidence at the hearing was directed towards disputed factual issues, such as whether the Commission was guilty of predetermination when it met on 11 May 2023. Much of its counsel’s cross examination of Mrs Fifita was designed to establish her alleged wrongdoing and guilt of the charges.
[34] Mrs Stephenson KC’s frequent objections to this line of cross examination were well justified. Mrs Fifita’s application was for judicial review of the lawfulness of the disciplinary process followed by the Commission. It was not a challenge to the merits of the Commission’s decision to dismiss her. That was a matter for determination within the internal disciplinary jurisdiction. Cross examination is only allowed in exceptional circumstances in judicial review proceedings. This case did not fall into that category.

[34] Justice Cooper decided for Mrs Fifita on the third issue, the second cause of action, and did not consider the other claims. The Commission’s first of its 17 grounds of appeal is that the Judge erred because he decided the application by finding that the Commission’s charges against Mrs Fifita were unsubstantiated. This ground is a mischaracterisation of the Judge’s conclusion which largely mirrored an affirmative finding on elements of the first and second causes of action. His Honour was satisfied that the investigation process was unfair. In this respect he concluded his analysis by reference to the categories of charges but he did not determine their merits.

Analysis

(a) Predetermination

[35] In our judgment the most appropriate approach to determining this appeal is to consider Mrs Fifita’s application afresh by reference to the major events. The starting point is the allegation of bias, which counsel have succinctly identified as the fifth issue, and whether the evidence establishes the Commission’s apparent predetermination on 11 May 2023 of the complaint of misconduct made against Mrs Fifita.

[36] The facts found in the Commission’s own documents largely speak for themselves. The Commission’s minutes of the 11 May meeting record that:

[a] one of the commissioners had shared with the others present at the meeting an email from Mr Pahulu;

[b] the reported missing public funds deemed Mrs Fifita’s case more serious than a complaint against another senior civil servant;

[c] Mrs Fifita is not the only staff member of the Ministry carrying out “this misconduct”;

[d] Mrs Fifita had “committed a serious breach of discipline “due to her involvement in making payments to a company registered in her daughter’s name;

[e] this was deemed to be a “serious breach of discipline “to be given to the Charge Formulation Committee;

[f] the Solicitor- General should be asked to advise whether it was within the Commission’s powers to suspend Mrs Fifita.

[37] The meeting followed the Commission’s memorandum to Mr Takau on 5 May seeking specific documents relating to Mr Pahulu’s allegations. Its apparent purpose was to obtain evidence against Mrs Fifita. While the Commission’s initial actions on 5 May could possibly be construed as consistent with its power to initiate any disciplinary action of its own motion^[7], it would have been bound to apply the rules of natural justice, conduct a full investigation and give Ms Fifita a right to be heard. And its subsequent direction to Mr Takau to undertake a Reg 5 (2) inquiry shows that it was not intending to act on its volition.

[38] As Mrs Stephenson submits, as at 11 May:

[a] Mr Takau had not commenced let alone completed any inquiry into Mr Pahulu’s complaint in accordance with Reg 5(1).
[b] Mr Takau had not made any determination that Mrs Fifita had committed a serious breach of discipline consequent upon an inquiry undertaken as required by Reg 5(2).
[c] Mr Takau had not prepared or submitted a report to the chief executive of the Commission as required by Reg 5(2) consequent upon a determination that Mrs Fifita had committed a serious breach of discipline.
[d] Mr Pahulu’s complaint had not been disclosed to Mrs Fifita, nor had she been given an opportunity to respond.

[39] In the Supreme Court the Commission attempted to distance itself from the formal minutes of the 11 May 2023 meeting. Notwithstanding that the Commission’s Chief Executive Officer signed the minutes as correct, the Commission’s Chairman who was also present at the meeting asserted that the minutes inaccurately recorded a conclusion that Mrs Fifita had committed a serious breach of discipline. He claimed that they should have referred to the Commission’s discussion of the allegations made against Mrs Fifita. The implausibility of the Chairman’s explanation was exposed in cross examination.

[40] The Commission’s attempts to reconstruct the documentary record were inappropriate. In any event they do not withstand scrutiny in light of the Commission’s decision on 11 May 2023 to refer the complaint to the Charge Formulation Committee for action, and the Committee’s meeting on 26 May 2023 to discuss the complaint. The Charge Formulation Committee could only be constituted following receipt of Mr Takau’s investigation report, which was delivered on 29 September 2023. For these purposes, its functions were to lay charges or take other steps if the report found serious misconduct by Mrs Fifita. The only purpose of referring the complaint to the Committee was to invoke its function to lay disciplinary charges against Ms Fifita even though no Reg 5 (2) investigatory report, the statutory prerequisite to laying any such charges, had been completed. Again, the Commission’s Chairman’s attempts to explain away this critical anomaly when challenged in cross examination were most unconvincing.

[41] In Lavulavu v R^[8], cited by Mr Sisifa, this Court recently affirmed the objective test to be applied in assessing a claim of apparent or apprehended bias: the question is whether the circumstances are such that “...a fair minded observer might reasonably apprehend that the ...decision maker might not bring an impartial mind to the question that the decision maker has to decide” . In our judgment the circumstances satisfy this test. The Commission’s minutes establish that on 11 May 2023 it had apparently determined that Mrs Fifita was guilty of serious misconduct. The Commission had made up its mind improperly and unlawfully without first receiving and considering Mr Takau’s report of his investigation into Mr Pahulu’s complaint against her, and unfairly without ensuring that Mrs Fifita was given an opportunity to be heard.

[42] The Commission’s actions amounted to a predetermination of its subsequent decisions made on 27 October 2023 to give Mrs Fifita notice of the charges against her and on 10 January 2024 to dismiss her. These actions manifest an appearance of bias which infected the Commission’s whole decision making process. We are accordingly satisfied that those decisions should be set aside.

(b) Inadequate and Unfair Investigation

[43] This conclusion is sufficient to dispose of the Commission’s appeal. However, we add that we are satisfied that Mr Takau’s investigation culminating in his report delivered on 29 September 2023 failed to satisfy the requirements of Reg 5(2), and was thus inadequate and unfair, for these brief reasons:

[a] Mr Takau was obliged to inquire into Mr Pahulu’s complaint of a serious breach of discipline and submit a complete report; that is, to investigate all the relevant circumstances and undertake an independent, balanced, fact gathering exercise to determine whether the complaint was substantiated.^[9] In particular his report was required to include any representations from Mrs Fifita. His report contained a brief summary in tabular form of statements made in an interview with her, but he had not given her a copy of the complaint or obtained her comments on it. She was given no opportunity to make representations on it, as Reg 5 plainly contemplated. Ms Fifita, who enjoyed an unblemished disciplinary career in the civil service, should have been afforded every reasonable chance to explain her position in the hope of avoiding the laying of serious disciplinary charges.;

[b] Mr Moala Mafi obviously was an important witness. He was plainly somebody who had information relevant to the complaint. He was able to confirm that Mrs Fifita had disclosed her conflict of interest before the Ministry entered into the contracts with Matapa. While Mr Takau had spoken with Mr Moala Mafi and was not obliged to take a statement from him, his omission to take statement meant that his reasoning process was flawed because he had not addressed a critically exculpatory element in Mrs Fifita’s favour;

[c] Mr Takau’s reasoning relied uncritically on the auditor’s conclusions found in the Annex to his report. He did not himself analyse the auditor’s grounds, interview the report writer or give a copy of the document to Mrs Fifita for comment. Reg 5 required Mr Takau’s own determination of the allegation of serious misconduct and the reasons for it, not the adoption of a third party’s conclusion without a careful and independent inquiry.

[d] Mr Takau’s report concluded with a recommendation for disciplining Mrs Fifita, in breach of the prohibition in Reg 5.2. Again, the Commission’s witnesses attempted to distance themselves from this issue, by referring to the fact that they did not adopt the recommendation. However, that is not the point. Mr Takau affirmatively recommended a formal disciplinary sanction. On its own this factor might not be decisive, but when coupled with the other factors we have identified it shows the procedural flaws in the investigatory process.

[e] As Ms Stephenson submitted, the Charging Committee should have exercised what she called its backstop powers to filter the manifest deficiencies in Mr Takau’s report, either to seek further information including from Ms Fifita or for clarification of the foundation for the report, instead of laying charges without analysis or applying an independent mind to its reasoning.

[44] In summary we agree with Ms Stephenson that the investigation conducted by Mr Takau was incomplete and unfair, and it failed to satisfy the statutory requirements. We also agree with her that the Commission’s disciplinary process was irregular in many respects from its inception. On this ground also the Commission’s decisions must be set aside.

Result

[45] The appeal is dismissed.

Costs

[46] Mrs Fifita applies for an award of indemnity costs, both in the Supreme Court (where costs were not fixed) and on appeal.

[47] Mrs Fifita relies on two letters sent by Mrs Stephenson to the Solicitor General’s office. The first letter was sent on 12 March 2024, shortly after the Commission filed its statement of defence; the second was sent on 5 August 2024, following discovery of further documents including the 11 May 203 minutes and Mrs Fifita’s notice of her intention to apply for leave to amend her statement of claim... Both letters provided summary but reasoned grounds for inviting the Commission to withdraw its defence and consent to judgment together with an award of scale costs to date. Both were marked without prejudice save as to costs, and gave notice of Mrs Fifita’s intention to seek indemnity costs from the Commission in the event that her substantive application for judicial review was ultimately successful. The Commission rejected the offers.

[48] The Court has a broad discretion to award indemnity costs in these circumstances^[10]. We are satisfied that Mrs Fifita’s offers were reasonable in the circumstances, and that the Commission acted unreasonably in rejecting them. The circumstances demanded the Commission’s rigorous, independent analysis of the grounds of Mrs Fifita’s statement of claim immediately after it was filed on 31 January 2024, and certainly after its amendment to include the predetermination claim on 21 August 2024. A review of that nature would have revealed the many flaws in the Commission’s disciplinary process. Instead the Commission made no attempt to engage with the merits of Mrs Fifita’s claim, as shown by the Solicitor General’s summary rejection of Mrs Stephenson’s second offer.in his letter dated 8 August 2024

[49] The Commission is a statutory body with the power to discipline senior civil servants. The Regulations prescribe a detailed regime designed to ensure that any disciplinary process, once instigated, is conducted thoroughly and fairly before a state employee is charged. The consequences of dismissal are severe. The employee’s exposure to forfeiture of all his or her benefits, privileges and entitlements in addition to suffering irreparable reputational damage serve to reinforce the Commission’s fundamental obligation to follow its own procedures.

[50] The Commission, as we have found, failed in many respects. Its unreasonable conduct is reflected in its summary rejection of Mrs Fifita’s settlement offers. In these circumstances we are satisfied that Mrs Fifita should be entitled to an award on an indemnity basis for all her costs and disbursements incurred in this proceeding both in the Supreme Court and on appeal. There is no basis for apportioning costs in the Supreme Court according to the dates of the two offers.

[51] Accordingly, the Commission is ordered to pay Mrs Fifita’s reasonable solicitor/ client costs in the Supreme Court and on this appeal together with all reasonable disbursements as fixed by the Registrar. Any dispute about the costs as claimed is to be determined by the Registrar.

Randerson J

Harrison J

Morrison J

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^[1] Section 6 (f) of the Public Service Act 2020
^[2] Section 20 (3) Public Procurement Regulations 2020
^[3] Section 4 (1) Code of Conduct for the Public Service 2010
^[4] Section 20 (5) Public Procurement Regulations 2020
^[5] Reg 7 A (3) (a)
^[6] Reg 7 A (1) (a) of the Regulations
^[7] Reg 3 (2)
^[8] Lavulavu v R AC 17 & 19 of 2021 at [68]
^[9] See the comprehensive discussion of Reg 5 by Whitten LCJ in Palelei v Public Service Commission [2023] TOSC 39 at [62]- [69]
^[10] Supreme Court Rules 2007, Order 24, Rule 3.