Tu'ifua v Public Service Tribunal [2016] TOSC 12; CV45.2013 (8 April 2016)

BETWEEN: MISHKA TU’IFUA, LITILI ‘OFANOA, SIMIONE SEFANAIA, FINAU TUTONE and TSUTOMU NAKAO

- Plaintiffs

AND: THE PUBLIC SERVICE TRIBUNAL

- First Defendant

AND: BUSBY KAUTOKE

- Second Defendant

BEFORE LORD CHIEF JUSTICE PAULSEN

Counsel: Mrs. D. Stephenson for the plaintiffs

Mr. D. A. Laurenson QC and

Mrs. ‘A. N Taumoepeau SC for the second defendant

Date of Hearing: 29 February 2016.

Date of Ruling: 8 April 2016.

RULING

The issue

[1] On 21 March 2013 the Public Service Tribunal (the Tribunal) allowed an appeal by the second defendant, Mr. Busby Kautoke (Mr. Kautoke), from the decision of the Public Service Commission (the Commission) terminating Mr. Kautoke’s contract of employment as Chief Secretary and Secretary to Cabinet. The Tribunal held that the decision of the Commission was invalid and it was set aside. This is an action for judicial review of the Tribunal’s decision.
[2] At issue is whether the Tribunal made an error of law when it held that the failure by the Commission to obtain Cabinet’s approval to the termination of Mr. Kautoke’s employment, in accordance with clause 24 of his employment contract, was a procedural flaw that was fatal to the Commission’s defence of its decision to terminate Mr. Kautoke’s employment.
[3] The Commission argues that in making its decision the Tribunal failed to have regard to the Public Service Act 2002 (the Act) and made an error of law in that pursuant to section 13(5) of the Act it could, after consultation with the Minister, remove Mr. Kautoke from his employment and did not require the approval of Cabinet to do so.

The facts

[4] The plaintiffs are respectively the chairman and the four members comprising the Commission which is a statutory body formed pursuant to the Act. The principal functions of the Commission include the discipline and dismissal of employees in the public service and the resolution of employment disputes (section 6(f) of the Act as amended by the Public Service (Amendment) Act 2010).
[5] The Tribunal is a statutory tribunal formed pursuant to section 21A of the Act (as amended by section 20 of the Public Service (Amendment) Act 2010) with the function of hearing appeals regarding any decision made by the Commission concerning an employee of the public service under the Act or any regulations made under the Act (section 21A(2) of the Act as amended by the Public Service (Amendment) Act 2010).
[6] Mr. Kautoke was on 14 April 2009 employed by the Commission in the posts of Chief Secretary and Secretary to Cabinet. There is no dispute that the Chief Secretary was a Head of Department under the Act and a Chief Executive Officer following the 2010 amendments to the Act (section 3 of the Act as amended by the Public Service (Amendment) Act 2010). The designations Head of Department and Chief Executive Officer mean:

any person in charge of the administration of a Ministry, who is employed under a fixed contract of employment under this Act.

[7] Mr. Kautoke had a written contract of employment with the Commission dated 8 May 2009. His appointment was for an initial period of two years with an option to extend exercisable by the Commission, subject to satisfactory performance, for a further period of three years. The contract provided that the Commission was required by 14 December 2010 to advise Mr. Kautoke in writing whether his contract would be renewed and if it was to be renewed, a new contract was to be signed by the parties by 14 March 2011.

[8] Clause 24(b) of Mr. Kautoke’s employment contract provided:

Misconduct

The Commission shall, in consultation with the responsible Minister and with the approval of Cabinet, subject to any prescribed disciplinary procedures, terminate this Contract without notice where:

(a) the Appointee has breached the Public Service Code of Conduct; or
(b) the Appointee’s conduct is such that he should be dismissed under the Public Service Act 2002, Public Finance Management Act 2002 or any Public Services Regulations.

[9] Clause 28 of Mr. Kautoke’s employment contract provided that the provisions of the Act, the Public Service Regulations and the Public Finance Management Act 2002 applied to the parties to the contract.

[10] During the initial term of Mr. Kautoke’s employment contract, amendments were made to the Act which were effective from 20 September 2010 and included the deletion and replacement of section 13. I will set out the original and replacement wordings in full later in this ruling. The amendments included the introduction of section 13(5) which provided that the Commission shall remove a Chief Executive Officer of a Ministry from office for non-performance or misconduct after consultation with the relevant Minister.

[11] In a letter dated 13 December 2010 the chairperson of the Commission advised Mr. Kautoke that his contract was to be extended for a further three years from 14 April 2011 to 14 April 2014. The extension of Mr. Kautoke’s contract was confirmed by a decision of the Commission dated 21 February 2011 but a new contract was never provided by the Commission. It was submitted for the Commission, and I accept, that Mr. Kautoke’s employment on the terms and conditions contained in the agreement of 8 May 2008 was simply extended to 14 April 2014. Mr. Kautoke was then employed under a fixed contract of employment for a term of three years from 14 April 2011.

[12] On 5 April 2012 the Commission suspended Mr. Kautoke pending an investigation into allegations against him under the Public Finance Administration (Public Funds) Regulations 1984 (the Regulations) relating to a failure to provide vouchers. He was sent a letter that same day by the Commission advising him that by its Decision No. 126 of 5 April 2012 his suspension was to be without pay and that serious disciplinary charges were to be laid against him.

[13] In a letter dated 3 May 2012 the Commission advised Mr. Kautoke that he was charged under clause 24(b) of his employment contract with two charges of failing to provide vouchers during the period 15 May 2009 to 9 July 2010 contrary to regulation 10(1) of the Regulations. It will be noted that the charges relate to events that occurred prior to the introduction of the 2010 amendments to the Act but the charges were not laid until well after those amendments were effected.

[14] Mr. Kautoke remained in his employment until 8 August 2012 when he received a letter from the Commission advising him that by Commission Decision No. 362 of 8 August 2012 his employment was terminated with effect from 6 April 2012. The approval of Cabinet to the termination of Mr. Kautoke’s employment was not obtained.

[15] An internal memorandum dated 17 August 2012 from the Acting Chief Executive Officer of the Commission to the Prime Minister gave a report to Cabinet Ministers of the action taken by the Commission in terminating Mr. Kautoke’s contract of employment. The report ended with the recommendation that the “termination of the Chief Executive Officer’s contract ... with effect from 06 April 2012 be noted.” The Cabinet deferred its consideration of that report in a decision dated 17 August 2012 and then withdrew the report in a decision dated 24 August 2012.

[16] Mr Kautoke appealed the decision to dismiss him (that is, Commission Decision No. 362) to the Tribunal pursuant to section 21A of the Act. The Tribunal issued its decision on 21 March 2013 in which it allowed Mr. Kautoke’s appeal and held that the decision to terminate Mr. Kautoke’s employment was invalid and set it aside.

[17] For present purposes three important matters appear from the Tribunal’s decision.

[18] First, that Mr. Kautoke challenged the Commission’s decision by refuting the substantive merits of the charges. The grounds of challenge did not include that the Commission had not consulted with the Minister or that Cabinet’s approval had not been obtained before terminating Mr. Kautoke’s employment.

[19] Secondly, before the appeal hearing began on 21 March 2013, the Solicitor General, who appeared as counsel for the Commission, drew the Tribunal’s attention to clause 24 of Mr Kautoke’s contract of employment and submitted that because the decision to terminate the contract was made without Cabinet approval there was a procedural flaw in the process that proved fatal to the Commission’s defence of Mr. Kautoke’s appeal. The Tribunal (and Mr. Kautoke’s counsel) accepted the Solicitor General’s submission and accordingly the appeal was allowed without any consideration of the substantive grounds advanced by Mr. Kautoke in support of his appeal.

[20] Thirdly, that in reaching its decision the Tribunal was not referred to, and did not give any consideration to, the provisions of the Act (except its own decision making power under section 21F) and in particular did not consider sections 12 (to which I shall shortly refer) or 13(5).

[21] Something of the flavour of the Tribunal’s decision, which was critical of the Commission, can be gleaned from paragraph 13 which reads:

It became abundantly clear from paragraph 24 of the Appellant’s contract of service that Cabinet approval is required before the contract can be terminated. This was not done. In the first instant referred to in para 10 above, the Prime Minister was asked to table the report in Cabinet to note. The recommendation in the report to Cabinet is that it be noted. Cabinet first deferred its consideration of the report and then it was withdrawn from consideration without giving any reason. Clearly the report to Cabinet with the decision to terminate the contract of the Appellant needed the approval of Cabinet to comply with paragraph 24 of the contract but this was not recommended. It was recommended only to be noted and it was eventually withdrawn.

[22] Mr. Kautoke has filed a counterclaim in this action in which it is alleged that his dismissal was wrongful and unfair and he seeks damages representing lost income and benefits as well as punative damages and costs. Mr. Kautoke’s counterclaim is duplicated in a separate action that he has filed under CV 66/13. This ruling is not concerned with the counterclaim, it having been agreed that any issues arising from it should be dealt with once the court’s decision on the judicial review application is known.

The terms of the Act and the contract

[23] Section 12 of the Act (which was not subject to any amendment in 2010) states:

Employee matters to be under the Act

All appointments, promotions, disciplinary matters and terminations in respect of the Public Service shall be made in accordance with this Act and any written policies of Government as directed by Cabinet.

[24] Section 13 of the Act as enacted in 2002 read:

Appointment of Heads of Department

(1) The Commission, with the consent of Cabinet, shall make all appointments to the position of Head of Department.
(2) Subject to section 26, Heads of Department shall be employed under a fixed contract of employment for a term of up to 5 years and may be eligible for reappointment.

[25] Following the 2010 amendments to the Act section 13 now reads:

Chief Executive Officers

(1) There shall be a Chief Executive Officer(s) for each Ministry.

(2) The Commission shall, after consultation with the relevant Minister, appoint in writing, a person to be the Chief Executive Officer of a Ministry.

(3) An appointment made under subsection (2) shall, as soon as practicable after it is made, be notified in the Gazette.

(4) The Chief Executive Officer shall be employed under a fixed contract of employment for a term of up to 4 years. At the end of the contract, the position shall be re-advertised and filled through the normal process. The present CEO may re-apply and may be re-appointed if successful in the recruitment process.

(5) The Commission shall, after consultation with the relevant Minister, remove a Chief Executive Officer of a Ministry from Office due to non performance or misconduct.

[26] Also of relevance is section 17 of the Act which reads:

Notice of resignation

The Commission may dismiss an employee at any time for cause.

[27] It is apparent that the headings of sections 16 (which deals with the resignation of public service employees) and 17 of the Act have been incorrectly substituted for one another. The heading of section 17 ought to read ‘Dismissal for cause’.

[28] Finally in this review of the Act is section 27 which has not been subject to any amendment and reads:

Act to prevail

Subject to the Constitution, the provisions of this Act shall prevail when any of its provisions conflict with the provision of any other law.

[29] I have previously set out clause 24 of Mr. Kautoke’s employment agreement and I also noted clause 28 of the agreement which reads:

Application of Public Service Act, Public Finance Management Act and Regulations

The provisions of the Public Service Act 2002 any Public Service Regulations and the Public Finance Management Act 2002 shall apply to the parties to this Contract.

The ordinary and natural meaning of section 13(5)

[30] The first issue is whether according to its natural and ordinary meaning and in its statutory context section 13(5) applies to the circumstances of Mr. Kautoke’s dismissal.

[31] Section 4, as amended, states the objects of the Act. These include, at section 4(c), inter alia, defining the powers of the Commission. At section 6(f) the functions of the Commission include the power to discipline and dismiss employees of which section 13(5) is an example in respect of the specific class of public service employees who are Chief Executive Officers.

[32] There is no dispute that Mr. Kautoke was employed as the Chief Executive Officer in charge of the administration of a Ministry; namely the Prime Minister’s Office (see the definitions of public service, Chief Executive Officer and Ministry in section 3 and Schedule 1 of the Public Service (Amendment) Act 2010).

[33] There is nothing in the words used in section 13(5) or in any other section of the Act that expressly or by implication suggests that the Commission’s power to dismiss a Chief Executive Officer under section 13(5) is abridged so that it can be exercised only in respect of conduct occurring after the 2010 amendments came into force.

[34] Section 12 of the Act clearly mandates that all appointments, promotions, disciplinary matters and, importantly, terminations in respect of the public service shall be made in accordance with the Act and any written policies of Government as directed by Cabinet. When read together with section 27 of the Act it must clearly have been the intention of the Legislature that in relation to such matters the provisions of the Act (and any written policies of Government) would prevail over the terms of an employment contract or the provisions of conflicting law.

[35] I consider that semantically section 13(5) is, as the Commission submits, an example of a uniform statutory policy surrounding the employment of Chief Executive Officers by which Parliament intended and enabled the Commission to remove a Chief Executive Officer of a Ministry for non-performance or misconduct after consultation with the relevant Minister.

[36] Applying this to the decision of the Tribunal it would appear, subject to the arguments raised for Mr. Kautoke to which I shall presently turn, that the appeal before the Tribunal proceeded on the basis of an erroneous concession by the Solicitor General that the failure to obtain the consent of Cabinet was fatal to the Commission’s case. The concession was erroneous because the Tribunal was required by section 12 (and clause 28 of Mr. Kautoke’s employment contract) to give consideration to the provisions of the Act, particularly section 13(5), and its failure to do so was an error of law.

Was section 13(5) engaged?

[37] Although this was the second of Mr. Kautoke’s arguments it is logical to deal with it now. Mr. Kautoke contends that clause 24 was a term of his employment contract agreed to by the Commission in the exercise of its statutory powers to determine the terms and conditions of employment of Chief Executive Officers and that those terms should be honoured and complied with. He argues that section 13(5) created a new statutory ground for dismissing Chief Executive Officers as it encompasses a wider range of conduct than would fall within the particular circumstances specified in clauses 24(a) or (b), where if non performance or misconduct was established it was mandatory that the Chief Executive Officer be removed subject only to consultation with the relevant Minister first taking place. As the charges against Mr. Kautoke were expressed to have been brought under clause 24(b) he submits it was a fundamental requirement for establishing that the conduct was sufficiently serious to justify dismissal that the approval of Cabinet was obtained.

[38] I do not accept this submission. It is not the case that section 13(5) created a new statutory ground for dismissal. Clause 13(5) is concerned with dismissal for both non performance and misconduct. Dismissal for non performance is the subject of clause 23 of Mr. Kautoke’s employment contract. Clause 24 is headed ‘misconduct’ and deals with wrongdoing of a serious type justifying termination of the contract without notice. As well as stating particular circumstances that shall lead to dismissal (such as breach of the Public Service Code of Conduct) clause 24 also provides that the Commission shall, in consultation with the Minister, terminate the contract where “[Mr. Kautoke’s] conduct is such that he should be dismissed under the Public Service Act 2002”. It is in fact section 17 of the Act coupled with the provisions of the Public Service (Disciplinary) Procedures Regulations that provide the statutory and regulatory basis for dismissal for cause of public service employees. Section 17 provides that a public service employee might be dismissed “at any time for cause”.

[39] The conduct that would constitute non performance or misconduct under clause 13(5) is conduct of the same nature that would fall within the particular circumstances specified in clauses 23 and 24 of Mr. Kautoke’s employment contract.

[40] Section 13(5) and clause 24 are inconsistent with one another for the very reason that is acknowledged by Mr. Kautoke. Under section 13(5) it is the Commission that has the power to dismiss for reasons of non performance or misconduct subject only to it first consulting with the Minister. Under clause 24 the power of the Commission to dismiss Mr. Kautoke is circumscribed by the requirement that Cabinet’s approval be obtained (paragraph 4(d) of second defendant’s submissions of 10 March 2016). There is no room in those circumstances to interpret section 13(5) consistently with clause 24 (paragraph 39 of the second defendant’s submissions of 29 February 2016).

[41] Section 12 of the Act provides that all terminations in respect of public service employees shall be made in accordance with the Act or any written policies of Government as directed by Cabinet. Clearly the Legislature’s intention was that section 13(5) would prevail over the inconsistent clause 24 of Mr. Kautoke’s employment contract.

Retrospectivity

[42] Mr. Kautoke’s primary argument is that the decision of the Tribunal was not wrong because based on the presumption against retrospectivity section 13(5) did not apply when the misconduct alleged against Mr. Kautoke took place prior to the provision coming into force.

[43] The presumption against retrospectivity is concerned with statutory changes to the substantive law which attach prejudicial consequences to a prior event. A retrospective statute operates for the future by imposing new consequences upon past events or transactions. The presumption against retrospectivity is not concerned with statutes which attach benevolent consequences to a prior event or to the imposition of a penalty by reference to a past event where the penalty is not the consequence of that event. Re A Solicitor’s Clerk [1957] 3 ALL ER 617 and R v Vine [1875] LR 10 QB 195 are examples where statutes attached an adverse consequence to a person’s status as a convicted person and not to their illegal act which was the offence.

[44] Dental Council of New Zealand v Bell [1992] 1 NZLR 438 concerned whether disciplinary provisions contained in the Dental Act 1988 (NZ) applied to conduct which was the subject of a complaint against a dentist that had occurred before the introduction of the Act. Tipping J held that the disciplinary provisions were to apply retrospectively. At page 444, Tipping J quoted with apparent approval the passage from Maxwell on Interpretation of Statutes (12^th Ed 1969) at p 215 as follows:

Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation. They are construed as operating in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in terms of the Act, or arises by necessary and distinct implication.

[45] In Wilson and others v Secretary of State for Trade and Industry [2003] UKHL 40; [2003] 3 WLR 568 Lord Rodger of Earlsferry expressed the view that the test and underlying rationale for whether Parliament intended an enactment to apply to past events and transactions was simply one of fairness. He said at paragraphs 200 and 201:

[200] Although, at a general level, the distinction between matters of substance and matters of pure procedure is readily understandable, in practice it has not always proved easy to apply, especially in relation to legislation on limitation or prescription. For that reason, in Yew Bon Tew v Kenderaan Bas Mara [1983] AC 553, 558H - 559A Lord Brightman cautioned against the potential dangers lurking in the description of a measure as "procedural". In L'Office Cherifien v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486, 527G - 528C Lord Mustill went further and suggested that a single criterion of fairness should be applied to all provisions. He added, at pp 525F - H:

‘Precisely how the single question of fairness will be answered in respect of a particular statute will depend on the interaction of several factors, each of them capable of varying from case to case. Thus, the degree to which the statute has retrospective effect is not a constant. Nor is the value of the rights which the statute affects, or the extent to which that value is diminished or extinguished by the retrospective effect of the statute. Again, the unfairness of adversely affecting the rights, and hence the degree of unlikelihood that this is what Parliament intended, will vary from case to case. So also will the clarity of the language used by Parliament, and the light shed on it by consideration of the circumstances in which the legislation was enacted. All these factors must be weighed together to provide a direct answer to the question whether the consequences of reading the statute with the suggested degree of retrospectivity are so unfair that the words used by parliament cannot have been intended to mean what they might appear to say."

This is an application of the "true principle" identified by Staughton LJ in Secretary of for Socialocial Security v Tunnicliffe [1991] 2 All ER 712, 724f –g....

‘that Parliament is presumed not to have intended to alter the law applicable to past events andsactions in a manner which hich is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree - the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended.'

[201] On Lord Mustill's approach an appropriate test might be formulated along these lines: Would the consequences of applying the statutory provision retroactively, or so as to affect vested rights or pending proceedings, be "so unfair" that Parliament could not have intended it to be applied in these ways? In answering that question, a court would rightly have regard to the way the courts have applied the criterion of fairness when embodied in the various presumptions.

[46] Statutes which regulate matters of procedure will normally be construed as being retrospective in their operation (Dental Council at page 446). Wilde B stated the position in Wright v Hale [1860] EngR 1191; (1860) 6 H & N 227, 232 as “where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act." In Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267 Dixon CJ put the matter thus:

But given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are enforced or their enjoyment is to be secured by judicial remedy is not within the application of the presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish L.J. in Republic of Costa Rica v. Erlanger “No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done” [[1876] UKLawRpCh 259; (1876) 3 Ch. D. 62, 69.]

[47] The distinction between substantive and procedural law is not always easy to make and whether a statutory provision is regarded as substantive or procedural will always depend on the facts of the instant case (Bennion on Statutory Interpretation, Second Edition at page 218). By way of example, in Maxwell v Murphy (supra) at pages 277-278 (referred to and relied upon by the Supreme Court of Canada in Martin v Perrie [1986] 1 R.C.S 41, 47) Williams J said:

Statutes of limitation are often classed as procedural statutes. But it would be unwise to attribute a prima facie retrospective effect to all statutes of limitation. Two classes of case can be considered. An existing statute of limitation may be altered by enlarging or abridging the time within which proceedings may be instituted. If the time is enlarged whilst a person is still within time under the existing law to institute a cause of action the statute might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgment might again be classed as procedural. But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights.

[48] Also in Maxwell v Murphy (supra) at pages 267-268 Dixon CJ said in relation to the distinction between procedural and substantive law:

The distinction is clear enough in principle and its foundation in justice is apparent. But difficulties have always attended its application. In some cases they have been due to the discovery in the nature or context of the legislation or in its subject matter of indications, whether faint and conjectural or strong and persuasive, of a desire to cover situations already existing. In other cases the difficulty has been traceable to the inveterate tendency of English law to regard some matters as evidentiary or procedural which in reality must operate to impair or destroy rights in substance. Again, enactments in truth conferring or denying rights are not seldom expressed in terms of remedy.

[49] In Thurman Arnold’s article ‘The Role of Substantive Law and Procedure in the Legal Process’ 45 Harv. L. Rev. 617 1931-1932 at 643 the author wrote:

The difference between procedure and substantive law is a movable dividing line which may be placed wherever an objective examination of our judicial institutions indicates is necessary.

[50] This leads me to the kernel of Mr. Kautoke’s case which is that section 13(5) is a substantive amendment which was materially different from what was contained in clause 24 of his employment contract (paragraph 3 of the second defendant’s submissions of 10 March 2016). It was submitted for Mr. Kautoke that applying section 13(5) to conduct which took place before section 13(5) came into force was detrimental and unfair. The material differences relate to the prerequisites for mandatory dismissal under section 13(5) and clause 24 of Mr. Kautoke’s employment contract. It is said that these differ in two ways. First, that section 13(5) creates a new statutory offence as it is concerned with non performance and misconduct which encompasses a wider range of conduct than would fall within the particular circumstances specified in clauses 24(a) or (b) of Mr. Kautoke’s employment contract. Secondly, section 13(5) does not contain the requirement in clause 24 of Mr. Kautoke’s employment contract that Cabinet approval be obtained before terminating his contract.

[51] I have already dealt with the first matter, which I do not accept, at paragraphs 38 to 41 of this ruling and need not say any more about it. As to the second matter, section 13(5) simply introduced a statutory requirement that the Commission first consult with the relevant Minister before removing a Chief Executive Officer from office. That was also a requirement of clause 24 of Mr. Kautoke’s employment contract and was not in any way prejudicial to Mr. Kautoke. But Mr. Kautoke argues that section 13(5) substantively disadvantaged him as under clause 24 it is Cabinet, with which Mr. Kautoke had significant contact, and not the Commission that would ultimately set the threshold for conduct that was serious enough to warrant dismissal.

[52] In a case where Cabinet gives its approval to the Commission’s decision to dismiss, section 13(5) would take nothing away from clause 24 of Mr. Kautoke’s employment contract. In a case where Cabinet refuses to give its consent all that has happened is that it is Cabinet rather than the Commission that has made the decision that the particular conduct does not justify dismissal. Importantly however, it is section 17 of the Act that describes the circumstances under which a public service employee shall be liable to dismissal and the enquiry and range of factors that may be taken into account in determining whether the threshold for serious misconduct to warrant dismissal has been reached must be the same whether the decision is ultimately made by the Commission or by Cabinet. For this reason section 13(5) is simply procedural in nature.

[53] In any event, the presumption against retrospectivity is directed against legislation which interpreted retrospectively impairs an existing right (sometimes called a vested right) acquired under existing laws or creates a new obligation or duty or attaches a new disability in regard to past events (Yew Bon Tew v Kenderaan Bas Mara [1982] 3 All ER 833, 836). The issue here is whether Mr. Kautoke had acquired an existing right under his employment contract requiring the consent of Cabinet before he was dismissed. I do not consider that he had acquired any such right. Since the purpose of legislation is to alter existing rights, there is no presumption that it will not alter mere rights which have not been exercised (Abbott v Minister for Lands [1895] UKLawRpAC 18; [1895] AC 425, 431 per Lord Herschell). That is the case here. No charges were laid against Mr. Kautoke until well after the introduction of the 2010 amendments. He had not exercised or acquired any existing right under clause 24 before the law was changed. Accordingly the presumption against retrospectivity does not apply to this case.

[54] In any event there are other factors also which in my view show with sufficient clarity that the Legislature must have intended that the 2010 amendments were to have retrospective effect. I have already mentioned the natural and ordinary meaning of the words in the 2010 amendments.

[55] In addition the 2010 amendments are regulatory provisions exercisable for the public benefit. The primary purpose of the amendments was to regulate the management and operation of the public service to ensure that it was apolitical, effective and efficient in serving the Government and the public of Tonga (section 4 of the Act as amended by the Public Service (Amendment) Act 2010). The amendments are not penal in nature and do not, contrary to the submissions for Mr. Kautoke, create a new offence, in which case the court can be expected to be reluctant to find that the presumption against retrospectivity has been displaced (Dental Council at page 445).

[56] It is a little ironic that this action arises out of Mr. Kautoke’s successful appeal to the Tribunal. The Tribunal was established by the 2010 amendments and in filing his appeal to the Tribunal (rather than seeking the intervention of Cabinet) Mr. Kautoke must have regarded Part VA of the Act as having retrospective effect. I accept that it does not follow that section 13(5) must necessarily have retrospective effect for that reason but as section 13(5) was also introduced by the 2010 amendments one would expect, subject to contrary indications, that the Legislature would take a consistent approach

[57] In the Dental Council case Tipping J stated that the absence of any transitional provisions bearing on the question of whether the Act in question was to have retrospective effect must have been a signal that Parliament intended that the disciplinary provisions of the new Act were to have retrospective effect. There are no transitional provisions in the 2010 amendments other than in relation to the reappointment of Chief Executive Officers and Commissioners (section 26 and 27 of the Act as amended by the Public Service (Amendment) Act 2010) which are of no relevance to this case.

[58] One of the principal reasons for the Court holding in the Dental Council case that the new disciplinary provisions applied to conduct pre-dating the coming into force of the amending legislation was that Parliament could not have intended that two parallel disciplinary systems would be running in tandem over a period of years when the conduct which formed the subject matter of a complaint straddled the old and the new Acts. The same consideration applies in this case indicating an intention that the 2010 amendments were to apply retrospectively. It cannot have been the intention of the Legislature that the Public Service Tribunal could only hear appeals from the Commission regarding events which occurred following the introduction of the amendments with other appeals being directed to Cabinet (section 21(2) of the Act as enacted and regulation 13 Public Service (Disciplinary Procedures) Regulations 2003). Mr. Kautoke and his advisors plainly did not think so. It would make no sense either if in the case of Chief Executive Officers the Commission was only required to consult with the Minister in respect of its intention to dismiss for conduct which occurred after the introduction of the 2010 amendments and not before, particularly when the decision to dismiss might be based on the cumulative effect of such conduct

[59] For the reasons I have given I am of the view that section 13(5) applied to the circumstances of Mr. Kautoke’s dismissal and that the presumption against retrospectivity has no application to this case or has been displaced.

Consultation with the Minister

[60] The third submission for Mr. Kautoke was that there was no evidence before this Court that the Commission had ever consulted with the Minister before terminating Mr. Kautoke’s employment and so, it is argued, if section 13(5) applies one of its fundamental requirements has not been met. It was submitted that this was a matter pleaded by Mr. Kautoke in his statement of defence and in respect of which no evidence was adduced by the Commission to counter the assertion.

[61] In my view the Commission did not need to counter the assertion. Mr. Kautoke did not raise as an issue before the Tribunal that there had been no consultation before the Minister. The Tribunal did not turn its mind to that question. It is not therefore appropriate or required in this proceeding for the court to embark upon an inquiry into questions of fact that were never considered by the Tribunal in arriving at the decision under review.

[62] It was also argued that Mr. Kautoke was employed not only as the Chief Executive Officer of the Prime Minister’s Office but also as the Secretary to Cabinet, which is not a Chief Executive Officer as defined in the Act, and therefore the Act does not apply to the termination of his contract insofar as it relates to his position as Secretary to Cabinet (paragraph 47 of the second defendant’s submissions of 29 February 2016). It is not clear what the court is supposed to make of this submission. It is sufficient for present purposes that the Tribunal was in error when it failed to have regard to the Act in relation to Mr. Kautoke’s dismissal as the Chief Executive Officer of the Prime Minister’s office.

Discretionary relief

[63] At the conclusion of the hearing I directed counsel to file further submissions on, inter alia, whether the decision of the Tribunal was in fact reviewable on the application of the Commission when that decision was made at the behest of the Commission’s counsel. I subsequently received those submissions.

[64] For the Commission it was argued, with reference to an article that appeared in the New Law Journal (UK) in January 2013 (http://www.newlawjournal.co.uk/nlj/content/conceding-point) and the cases referred to in it, that it did not matter how an error of law was made. The fact that an error of law was made as a result of a concession by counsel did not fetter the Tribunal’s obligation to rule on all the relevant issues in the claim or require it to adopt an objectively wrong analysis of the law. The Commission submitted that the Tribunal’s decision was wrong and the court should not be constrained in judicially reviewing and correcting the error. I accept that as a correct statement of the position.

[65] For Mr. Kautoke it was submitted that the New Law Journal (UK) article and the cases referred to only considered whether a tribunal is bound by a concession on a point of law made by one party to that tribunal. It was submitted that is not relevant to the issue which Mr. Kautoke advances in this case. I was referred to Taylor Judicial Review: A New Zealand Perspective at [541] as follows:

Acquiescence, estoppel and waiver are not independent defences to a claim of invalidity, they operate only in relation to the discretion whether to grant a remedy

[66] Mr. Kautoke’s position is that if it was to be found that the concession made by the Commission’s counsel to the Tribunal was incorrect (and I believe that it was incorrect) the court should in the exercise of its discretion and in the exceptional circumstances of this case decline to grant relief. It was submitted that courts might decline relief when the grant of relief would be futile or the conduct of the plaintiff is such as to disentitle him to relief due to “acquiescence in the irregularity complained of or waiver of the right to object...” (Halsbury’s Laws of England, Judicial Review at [692]).

[67] Mr. Kautoke’s counsel responsibly and correctly accepted that the scope for exercising the discretion to refuse relief when a decision reviewed has been held to have been made unlawfully is narrow. Recently in Fusitu’a and another v Minister of Public Enterprises (Supreme Court Tonga, CV 65/2015, 29 March 2016 Paulsen LCJ) I noted that the courts should vindicate rights and when a plaintiff makes out substantial grounds for relief there must be good reasons for refusing it.

[68] I was also referred to the New Zealand Court of Appeal decision in Wendco (NZ) Limited v Auckland City Council [2015] NZCA 617 at [65] where the Court referred with approval to an extract in Taylor Judicial Review: A New Zealand Perspective as follows:

The scope for exercising a discretion to refuse a remedy is “very narrow”, “exceptional”, “narrow [or] exceptional”, “there must be extremely strong reasons to decline to grant relief”, it is rare to refuse relief...

[69] In the recent report Judicial Review and the Rule of Law: An Introduction to the Criminal Justice and Courts Act 2015, Part 4, Bingham Centre for the Rule of Law, JUSTICE and the Public Law Project, London, October 2015 the authors write in relation to the position that has prevailed in the United Kingdom at paragraph 1.16 as follows:

Courts have always had the discretion to refuse permission for judicial review, and to deny relief, in appropriate circumstances. However, there are strong constitutional imperatives in favour of granting relief unless there are strong reasons against doing so, not least the interest in ensuring that public bodies act lawfully. Enforcing fair decision-making not only ensures that better decisions are reached in the future, but it also helps to avoid any sense of injustice on the part of the person subject to the decision. As Bingham LJ stated in R v Chief Constable of the Thames Valley Police, ex p Cotton, the instances where a court would deny an individual the opportunity to put his or her case should be “of great rarity”. At common law, the courts normally would be expected to grant a remedy if there is any doubt as to whether the same decision would have been reached absent the error.

[70] Mr. Kautoke advances six grounds which he contends amount to exceptional circumstances justifying the refusal of relief. Broadly the grounds fall into three categories; that the conduct of the Commission caused or contributed to the error made by the Tribunal; that Mr. Kautoke has and will be prejudiced further by the delay in having this matter resolved if the appeal is sent back to the Tribunal and; the granting of relief will be futile.

[71] In relation to the conduct of the Commission, it is the case that section 13(5) was not specifically referred to by the Commission as the basis for dismissing Mr. Kautoke or before the Tribunal. I also accept the submission for Mr. Kautoke that it is not surprising that the Tribunal accepted the Solicitor General’s concession as being correct. However it is also the case, as the Tribunal’s decision records, that Mr. Kautoke’s counsel accepted the Solicitor General’s erroneous concession (paragraph 15 of the Tribunal’s decision). There is nothing to suggest that the concession was anything other than an error or made otherwise than in good faith and the Commission moved promptly to review the Tribunal’s decision following the engagement of other counsel. It appears to me that absent other factors the court should be very slow to decline relief in a case such as this on this ground.

[72] In relation to delay I note that in Taylor Judicial Review: A New Zealand Perspective at 5.36 it states in relation to delay:

Every case will depend on the individual mix of relevant factors. Of them the effect of delay on third parties is likely to be critical. If third parties have been adversely affected by the delay, then a remedy that may adversely affect the third party will probably be refused. If there is no adverse effect, delay is unlikely to be fatal all other factors being equal; however, delay by itself will seldom, if ever, result in relief being refused.

[73] It is certainly the case that Mr. Kautoke’s case has taken too long to resolve but the Commission cannot be blamed for that. It filed its proceedings promptly and there is much force in its submission that such delay has been substantially contributed to by steps taken by Mr. Kautoke in the proceedings, particularly in making his unsuccessful application to have counsel for the Commission disqualified and in duplicating his counterclaim in two different actions. The adverse effects of the delay on Mr. Kautoke are no different than are experienced by most litigants and there is no issue in this case that delay has affected third party rights.

[74] Finally it is argued that the granting of relief would be futile because the Commission has provided no evidence that there was any consultation with the Minister as required by section 13(5), so that if section 13(5) had been raised before the Tribunal Mr. Kautoke’s appeal would in any event have been allowed. I do not accept this submission. The Tribunal made no ruling on that issue and the Commission did not in this proceeding have to adduce evidence of consultation with the Minister.

[75] Having weighed up all the matters put before me I find no grounds to refuse the Commission relief in the exercise of discretion.

[76] I would also add as a matter which bears on my discretion that I consider that referring this matter back to the Tribunal is likely to be the most time and cost effective method by which Mr. Kautoke can have his case finally determined on its merits, which is what he desires. This case has been beset by procedural manoeuvring which has caused the delay of which Mr. Kautoke now complains and no doubt has added considerably to the costs of both parties. The court can only hope that Mr. Kautoke’s grievance shall now be aired in the specialist forum which was established for that purpose.

The result

[77] The Commission’s application for judicial review is successful.

[78] The decision of the Tribunal allowing Mr. Kautoke’s appeal from the decision of the Commission terminating his employment is set aside.

[79] I direct that the Tribunal is to reconvene and rehear Mr. Kautoke’s appeal on the first available date.

[80] The Commission has sought costs. I expect that Mr. Kautoke would oppose costs. I would invite counsel to try to reach agreement but if they cannot do so they should file memoranda within 42 days.

O.G. Paulsen
DATED: 8 April 2016. LORD CHIEF JUSTICE