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Betham-Annandale v Attorney General [2026] WSCA 1 (16 January 2026)

IN THE COURT OF APPEAL OF SAMOA
Betham-Annandale v Attorney General & Anor [2026] WSCA 1 (16 January 2026)


Case name:
Betham-Annandale v Attorney General & Anor


Citation:


Decision date:
16 January 2026


Parties:
SAVALENOA MAREVA BETHAM-ANNANDALE (Appellant) v ATTORNEY GENERAL (First Respondent) & PRIME MINISTER (Second Respondent)


Hearing date(s):
24 November 2025


File number(s):
CA2024/4536


Jurisdiction:
Court of Appeal – CIVIL


Place of delivery:
Court of Appeal of Samoa, Mulinuu


Judge(s):
Hon. Justice Asher
Hon. Justice Young
Hon. Justice O’Regan


On appeal from:
Supreme Court of Samoa, Mulinuu


Order:
The appeal is dismissed. The appellant must pay costs of $5000 to the respondent.


Representation:
R. E. Harrison K.C. and S. Ainuu for the Appellant
B. Heather Latu and B. Keith for the Respondents


Catchwords:



Words and phrases:


Legislation cited:


Cases cited:
Betham-Annandale v Attorney General [2024] WSSC 56 (decision appealed).


Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU


BETWEEN:


SAVALENOA MAREVA BETHAM-ANNANDALE


Appellant


AND:


ATTORNEY GENERAL


First Respondent


PRIME MINISTER


Second Respondent


Hearing: 24 November 2025


Coram: Hon. Justice Asher
Hon. Justice Young
Hon. Justice O’Regan


Appearances: R. E. Harrison K.C. and S. Ainuu for the Appellant
B. Heather-Latu and B. Keith for the Respondents


Judgment: 16 January 2026


JUDGMENT OF THE COURT

  1. This is an appeal against a judgment of the Supreme Court dismissing the application made by the appellant, Ms Betham-Annandale, for judicial review of a decision of second respondent, the then the Prime Minister of Samoa, Hon. Fiame Noami Mataafa, to advise the Head of State to dismiss the appellant from the office of Attorney General of Samoa.[1] (For ease of reference, we will refer to the second respondent as “the respondent”). The Supreme Court also dismissed the appellant’s claim for relief (including damages) under Article 4 of the Constitution.
  2. The appellant also claimed in the Supreme Court that the actions of the respondent leading to the advice to the Head of State that the appellant be removed from office constituted the torts of misfeasance in public office, malicious abuse of power or conspiracy with other Cabinet members to injure the appellant and sought compensatory and exemplary damages. The tort claims also failed and there is no appeal against that aspect of the Supreme Court judgment.
  3. The focus of the judicial review challenge to the respondent’s decision are two letters written by the respondent to the appellant. The first of these was a letter dated 4 August 2021, notifying the appellant that she was suspended from office as Attorney General and seeking the appellant’s response to a number of allegations made in the letter. We will call this the “Suspension Letter”. The second was a letter dated 2 September 2021, notifying the appellant that the respondent had advised the Head of State to dismiss the appellant from office. We will call this the “Removal Letter”.

Brief background

  1. The appellant was appointed as Attorney General for a term of three years in July 2020. Her appointment was made under Article 41 of the Constitution.
  2. In the period between April and August 2021, there was a Constitutional crisis in Samoa, following the uncertain results of the general election that took place on 9 April 2021. There was extensive litigation involving the two main political factions, the Human Rights Protection Party (the HRPP) and Fa’atuatua i Le Atua Samoa ua Tasi (the FAST Party), during which there were a number of public attacks on the integrity and independence of the Samoan judiciary led by the former Prime Minister and leader of the HRPP, Hon. Tuilaepa Sailele Malielegaoi (the HRPP Prime Minister) and his supporters.
  3. The events during the Constitutional crisis have been aired in a number of judgments of the Supreme Court and this Court and it is not necessary for us to recount those events in detail in this judgment.[2]
  4. After the Court of Appeal ruled on 23 July 2021 (in the Election Result judgment) that the FAST Party had secured the most seats in the General Assembly, the respondent took office as Prime Minister. The events that followed are narrated in the Supreme Court judgment, and for ease of reference we reproduce the relevant paragraphs here:

Attorney General: appointment, functions and status

  1. The appellant’s appointment as Attorney General was made under Article 41 of the Constitution, which provides:
  2. The functions of the Attorney General are set out in section 6 of the Attorney General’s Office Act 2013 (the AGO Act), the relevant part of which provides as follows:
  3. The AGO Act also provides for the independence of the Attorney General. It provides:

Other relevant provisions

  1. Two other provisions, one legislative and the other constitutional, assumed some importance during the argument of the appeal. The first is Article 111(7) of the Constitution, which provides:
  2. The second is section 31(1) of the Acts Interpretation Act 2015 which provides:

Appointment letter

  1. The appellant’s warrant of appointment as Attorney General was signed on 12 August 2020, but the terms and conditions of the appointment were set out in a letter to the appellant from the Public Service Commission dated 29 July 2020. That letter provided as follows:

...

Issues

Power to remove

  1. The appellant’s case in the Supreme Court was that there was no power to remove the appellant from office.[3] This argument highlighted the absence of any express power of removal in the Constitution or in the terms on which the appellant had been appointed. The Supreme Court Judge rejected that argument. He concluded that there was a power to remove an Attorney General from office, but only where the acts or omissions of the Attorney General so materially undermine or compromise his or her ability to perform the constitutional functions or discharge the responsibilities required by the office.[4]
  2. The appellant argues that there is no such power of removal. The respondent argues that the power to remove is on different grounds, namely whether the Prime Minister considers on reasonable grounds that he or she no longer has trust and confidence in the holder of the office of Attorney General.
  3. The first issue is, therefore, whether the appellant could be removed from office and, if so, on what grounds.

Breach of natural justice

  1. The appellant claimed that the decision of the respondent to remove the appellant from office was vitiated by actual or apparent bias, prejudgment, conflict of interest and was made by a process which was unfair. All of those allegations were rejected by the Supreme Court Judge.
  2. The second issue is, therefore, whether there was a breach of natural justice in the manner in which the decision to remove the appellant was made. In particular:

Unreasonableness and illegality

  1. The appellant argued in the Supreme Court that the decision of the respondent to suspend and subsequently remove the appellant from the office of Attorney General was tainted by illegality and was, in any event, unreasonable. In the Suspension Letter, the respondent set out six matters of concern for her about the conduct of the appellant grounds that led her to form the provisional view that she did not have trust and confidence in the appellant (these were referred to in the Supreme Court judgment as “grounds” and we will use the same term). In the Removal Judgment the six grounds were the basis on which the respondent said she had concluded that removal was necessary. The Supreme Court Judge found that three of these grounds were made out, that one was not made out but inconsequential and two were inconsequential.[5] The appellant challenges the findings in relation to the three grounds found to be made out, while the respondent argues that all grounds were made out. The appellant also argues the fact three of six grounds were not accepted by the Supreme Court was sufficient, in itself, for a finding that the decision was tainted by illegality. The third issue is, therefore, whether the decision to remove the appellant was tainted by illegality or was unreasonable.

Relief

  1. The Supreme Court Judge did not need to deal with the questions of relief, having rejected the appellant’s claims. In this Court the appellant argued that the appropriate relief was a declaration that her removal from office was unlawful and invalid either because there was no power to remove her or because the power was exercised unlawfully. Her counsel, Mr Harrison KC, argued that she should also be entitled to compensatory relief under Article 4 of the Constitution. It would be necessary to address this issue in the event the appellant succeeds in relation to one of the issues outlined above.

Could the appellant be removed from office?

Power to remove

  1. It was common ground that Article 41 contains no express power to remove an Attorney General from office.[6] While it would have been possible for the terms and conditions on which the appellant was appointed as Attorney General to specify circumstances in which removal would be a possibility, this was not done.
  2. The lack of any explicit power to remove in Article 41 can be contrasted with other provisions in the Constitution, in particular Article 21(2) (Head of State), Article 25(7) (Member of the Council of Deputies), Article 66(6) (Chief Justice), Article 82A (Ombudsman), Article 99F(1) (Controller and Auditor-General) and Article 104D(3) (President of the Land and Titles Court).
  3. Article 111(7), quoted above, allows for the appointment of a replacement Attorney General in prescribed circumstances on a temporary basis. It does not, in terms, provide a power to remove and replace an Attorney General permanently.
  4. The focus of argument in this Court was whether a power of removal is a necessary implication either from Article 41 or Article 111 (7). The leading authority on the appropriate standard to be applied is that set out by Lord Hoffman in R (Morgan Grenfell & Co Ltd) v Special Commissioners of Income Tax:[7]
  5. That test was adopted by the Supreme Court of New Zealand in Poynter v Commerce Commission.[9] In Poynter, the Supreme Court of New Zealand interpreted the test set out in Morgan Grenfell as meaning that a necessary implication is one which flows “as a matter of inevitable logic from [the express terms of the relevant provision] read contextually in the light of the purposes of the Act”.[10]
  6. Mr Keith, who presented the case for the respondent, argued by reference to Australian authorities that the concept of “necessary implication” may be different where the context is a Constitution, rather than legislation. In Australian Capital Television Pty Ltd v Commonwealth (No 2), Mason CJ put it this way:[11]
  7. That approach has been cited with approval in a number of subsequent Australian cases.[12] Mr Harrison suggested this imposed a more stringent test for implication in a constitution as opposed to an Act. Mr Keith suggested the opposite. Mr Harrison also referred us to the dissenting opinion of Viscount Dilhorne and Lord Fraser in the Privy Council case (on appeal from Jamaica), Hinds v The Queen, in which their Lordships expressed the view that there should be greater reluctance to imply something not expressed into a constitutional provision that is the case in relation to a statutory provision.[13] That observation can , however, be contrasted with those in the opinion of Lord Diplock for the majority.[14]
  8. In the end it is not necessary for us to resolve whether the standard for necessary implication in a constitution is more or less stringent that for a statutory provision. That is because we consider the correct test to apply is that set out in Morgan Grenfell and endorsed in Poynter. We do not see any reason to differentiate constitutional provisions from statutory provision in this context and the Morgan Grenfell test is now well-established and has been applied in New Zealand.
  9. The Supreme Court Judge accepted that a power to remove could arise only by necessary implication from the terms of the Constitution.[15] He concluded that such a power did exist, but only in the event that removal was required because of events of an extraordinary nature.
  10. Mr Harrison argued before us that in the absence of an express power of removal in Article 41 or in the term on which an Attorney General was appointed, the Attorney General must be permitted to continue in office for the term of the appointment. He argued that Article 111(7), which allowed for the temporary replacement of an Attorney General, was strictly confined to prescribed circumstances and, in any event, did not provide for the removal of the Attorney General appointed under Article 41. Mr Harrison accepted that it may be arguable that a necessary implication derived from Article 111(7) allowing for temporary replacement of an Attorney General who is unable to perform the functions owing to ... “any other cause” may give rise to a necessary implication that a permanent replacement is permissible where the relevant cause prevents the Attorney General in office from performing his or her functions. But he submitted that such an argument should not be accepted.
  11. For the respondent Mr Keith argued that a power of removal was a necessary implication from Article 41 itself.
  12. Mr Keith called in aid section 31(1) of the Acts Interpretation Act, which is set out above, at [12]. The Supreme Court Judge declined to apply s 31(1), because Article 41 is a provision of the Constitution, not of an Act and s 31(1) applies only to a power “in an Act” to appoint a person, whereas the Attorney General is an office holder under the Constitution, and is therefore appointed under the Constitution, not under an Act. Mr Keith argued this was inconsistent with the approach taken by this Court to the application of the Acts Interpretation Act to the interpretation of constitutional provisions. He cited as an example, Woodroffe[16] Fisher.16 We do not see Woodroffe v Fisher as establishing a precedent about the application of the Acts Interpretation Act to the interpretation of a provision of the Constitution. However, we do not think this means section 31(1) of the Acts Interpretation Act is irrelevant in the present context, in that it provides an indication that, in the legislative context, a power of appointment includes a power to remove, without the latter needing to be specifically stated. We see this as relevant to the interpretation of the terms on which the appellant was appointed as Attorney General.
  13. Those terms are set out above, at [13]. They make it clear there is no contractual right for the office holder to stay in office for three years. Rather, the appointment is a constitutional appointment and subject to terms approved by Cabinet.
  14. Determining the nature of the appointment requires some consideration of the functions of the Attorney General. At its heart, the position of Attorney General vis-à-vis the Government is a lawyer/client relationship, albeit with a public law overlay. We have already set out sections 6 and 7 of the AGO Act, which specify the functions of the Attorney General and establish the independence of the office. We see it as significant that, unusually for an Attorney General who is not a Member of Parliament, section 6(2) provides that one of the functions of the Attorney General is to attend and advise Cabinet. That emphasises the significance of the office and the fact that it is at the heart of the machinery of government. Under s 7(2), the Attorney General acts independently of others, with the notable exceptions of the Prime Minister and other officers of the Executive. These provisions indicate to us that in a situation where the conduct of the Attorney General has led to the breakdown of his or her relationship with the Prime Minister (and other Members of Cabinet), the Attorney General’s position may well become untenable.
  15. Taking into account those factors and bearing in mind the default position for office holders under s 31 of the Acts Interpretation Act, we consider the terms on which the appellant was appointed allow for removal from office in certain circumstances. We do not consider it is tenable to suggest that a Government is bound to continue to rely on the advice of the person appointed as the Government’s senior legal adviser and tolerate that person’s presence at the Cabinet table if the circumstances justifying removal (to which we are about to come) exist. It is true that the terms of appointment could have provided expressly for this eventuality (and did not do so in this case). But we do not see the failure to do so as changing the fundamental point made above. We do not see the terms of Article 41 as preventing us from reaching this conclusion; rather we consider the power of appointment in Article 41(5) necessarily includes the power to remove without that needing to be expressly stated in the terms of appointment. This conclusion means it is not necessary for us to address the alternative proposition that such a power can be implied from Article 111(7).
  16. We do not overlook the reference in the terms of appointment to a term of three years. We see that as indicating an expectation that the appointee will remain in office for that period in the absence of any ground for removal arising, with the appointment terminating at the end of the period unless the appointee is reappointed for a further term. So, we accept the appellant had an expectation of remaining in office for the three-year period, but that expectation was subject to there being no circumstance arising that called for her removal from office.

Grounds for removal

  1. In the Suspension Letter, the respondent advised the appellant that she, the respondent, had formed the provisional view that she did not have confidence in the appellant’s discharge of the functions of the office of Attorney General. The Removal Letter indicated that, despite the submissions made by the appellant, the respondent still held that view.
  2. As noted above, at [29], the Supreme Court Judge considered that the circumstances justifying removal of an Attorney General must be of an extraordinary nature, striking at the heart of the office holder’s ability to perform his or her constitutional duties and [17]nctions.17 He rejected the submission made on behalf of the respondent that the loss of trust and confidence of the respondent in relation to the appellant was a proper basis for a decision to remove an Attorne[18]General.18 Later in the judgment, the Judge[19]bserved:19
  3. In this Court, Mr Harrison’s primary argument was that there was no power to remove. But he argued that if such a power were to be implied, it would be limited to a situation where the Attorney General was unable to act on a permanent or indefinite basis, for example if she or she were struck off or suspended from practice. As the respondent’s basis for suspending, then removing, the appellant from office was loss of trust or confidence, that meant, he said, that her decision to remove the appellant was not available to her as a matter of law. Since the adoption of that standard had a material part in the removal decision, the decision should be invalidated on that basis alone, he submitted.[20]
  4. Mr Keith also took issue with the standard adopted by the Supreme Court Judge. He argued that loss of trust and confidence in the Attorney General by a Prime Minister (the standard adopted by the respondent in this case) was a sufficient basis for removal. However, he recognised that there needed to be a proper basis for the loss of trust and confidence. The loss of trust and confidence ground reflected the lawyer-client relationship between the Attorney General and the executive Government.
  5. Mr Keith cited the Australian case, Barratt v Howard, in which the Full Court of the Federal Court was considering a challenge by a former Secretary of the Department of Defence to his removal from office.[21] In that case, the Secretary was appointed on a fixed term contract but there was an express power of removal, without specification of the grounds for removal. The Court rejected an argument that removal could be justified only where there had been a fundamental fault demonstrated by the Secretary.[22] Rather, it determined removal could occur if necessary to protect, maintain or advance the efficient, equitable and proper conduct of the public administration of the Australian Government (adopting wording used in the relevant statute, the Public Service Act 1922 (Cth)).
  6. Like the Supreme Court Judge, we do not derive a lot of assistance from that case. While we accept that it lends some support to Mr Keith’s argument that the test adopted in the Supreme Court judgment is set at too high a plane, we see Barratt as a product of its specific statutory context. We see the present case as also requiring assessment in the context of the relevant constitutional provision.
  7. We consider that the nature of the office of an Attorney General appointed under Article 41 is such as to require that the incumbent does not act in a way that leads to a loss of trust and confidence on the part of the Prime Minister. There has to be an objectively reasonable basis for the loss of trust and confidence. The question for the Court in this case is whether the Prime Minister made any judicially reviewable error in concluding that she did not have trust and confidence in the appellant as the holder of the office of Attorney General.

Was there a breach of natural justice?

  1. As indicated earlier, there were two components to this ground of appeal, namely:
  2. We will deal with them in that order.

Was there prejudgment or bias?

  1. The background to this issue is that on 28 May 2021, the respondent and the FAST Party initiated contempt of court proceedings against, among others, the HRRP Prime Minister and the appellant. We will call this case the “contempt proceeding”. The claim against the appellant cited as grounds for a finding of contempt of court the following:
  2. We interpolate that there were, in fact, two press releases said to have been issued from the Attorney General’s Office. The first was issued on 23 May 2021 and the second on 27 May 2021. We will refer to these as the “23 May statement” and the “27 May statement” respectively. The 27 May statement was described by the Supreme Court in the Contempt judgment as “insultingly critical of the judges concerned” and “contemptuous”.[23] It is the 27 May statement to which the contempt claim referred.
  3. The respondent’s affidavit in support of the application, sworn on 28 May 2021, included the following statements:
  4. In the Contempt judgment (delivered some months after the Suspension Letter and Removal letter were sent), the Supreme Court accepted the appellant’s evidence that she had not authorised the issuing of the 27 May statement (its authorship remains undetermined) and found that there was no evidence she had not given the advice required of her by the Declarations (privilege issues made it impractical to get evidence about that). The Court therefore found her not guilty of contempt of court.[24]
  5. Mr Harrison argued that the respondent still considered the appellant to be in contempt of court for the reasons outlined in the affidavit quoted above when she made the decision to suspend, and subsequently remove, the appellant from office. He highlighted the reference to “sheer malevolence” in the affidavit quoted above and argued that the respondent was, at the time of the decisions, biased against the appellant, on the basis that she still believed the appellant was guilty of partisan conduct in the events that were the subject of the contempt proceeding.
  6. He said that the respondent accepted that was the case in cross-examination. He noted that the respondent’s views in relation to the appellant later changed, when the respondent filed a joint memorandum to the Supreme Court in the contempt proceeding on 8 December 2021, withdrawing the contempt of court allegation.
  7. The Supreme Court Judge did not consider it was necessary to address this point, but accepted that the respondent did have an adverse view of the appellant at the time she wrote the Suspension Letter. However, he was not satisfied that this was an operative factor in the respondent’s advice to suspend or dismiss, given that the events subject to the contempt proceeding had been well and truly overtaken by the three grounds which formed the foundation of the respondent’s decision which the Supreme Court Judge found were made out.[25] The Supreme Court Judge rejected a submission made on behalf of the appellant that the respondent should have delegated decision-making to another Cabinet Minister, noting that any alternative Cabinet Minister’s knowledge of the appellant’s conduct would have been the same as that of the respondent.
  8. It is notable that the principal allegation against the appellant in the contempt proceeding related to the 27 May statement, but this was not mentioned in the Suspension Letter or the Removal Letter, and was not a ground for the suspension and later removal of the appellant.
  9. The second allegation made against the appellant in the contempt proceeding was obstructing implementation of the Proclamation and declarations referred to in the affidavit quoted above, but these also did not form a ground on which the suspension and later removal of the appellant occurred.
  10. We agree with the Supreme Court Judge that it would have been pointless for the Prime Minister to delegate the decision to another Cabinet Minister, given that all members of the Cabinet would have been in a substantially similar position to the Prime Minister herself.
  11. We do not accept that the allegations made by the respondent in her affidavit supporting the contempt of court application meant that she pre-judged the issues at play in determining whether to suspend and subsequently remove the appellant from office. The fact that the 27 May statement was not mentioned in the Suspension Letter indicates that the respondent was aware of the appellant’s denial of her involvement and its production and distribution. The fact that the contempt of court application was later withdrawn did not suggest any acknowledgment by the Prime Minister that the appellant’s conduct was consistent with her role as Attorney General and the fact the Supreme Court dismissed the contempt of court application in relation to the appellant did not say anything about the consistency of the appellant’s conduct as Attorney General with the expectations of that office.

Was the process unfair?

  1. The appellant argues that the process adopted by the respondent was unfair in that:
  2. The Suspension Letter was dated Friday 20 August 2021, and was hand delivered to the appellant at 6.00 pm on that date. It provided an opportunity for the appellant to give any explanation or make any submission in relation to the grounds specified in the Suspension Letter by 4.00 pm on Monday 30 August 2021. So, the period provided for explanation or submission was 10 days, but only six of those days were working days. The letter also included an instruction to the Acting Attorney General to provide any information required by the appellant for the purpose of responding to the Suspension Letter and said that the appellant could instruct an external lawyer of her choice to assist in any explanation or submission, with the reasonable and actual costs being met from public funds.
  3. The Suspension Letter also included a paragraph indicating that, if the appellant were to resign, the respondent would direct an ex gratia payment equivalent to three months’ salary to be made to her.
  4. The appellant sent a response to the respondent on 30 August 2021, which she said was an interim response. In that letter, she indicated that she did not accept that either the respondent or the Head of State had power to suspend her from her duties as Attorney General and asserted that her suspension from office and the warrant appointing a temporary replacement were invalid and unlawful. She disputed the premise of the Suspension Letter, that the Head of State, acting on advice from the respondent, had the power to remove the appellant from the office of Attorney General and asserted that she was immune from any review of her performance of her constitutional role and statutory functions. She also alleged that the respondent had a conflict of interest in pursuing the suspension and removal. She indicated that she was instructing Mr Harrison to act for her and asked for more time to respond substantively, on the basis that she was unable to access the “voluminous litigation files needed for preparation of a substantive response”.
  5. The appellant’s response did not engage with the allegations made in the Suspension Letter, apart from claiming privilege in relation to advice she had given to the HRPP Prime Minister and others in the HRPP Government. And it is notable that the request for an extension of time came just before the deadline for a response. It could have been expected that, if the appellant really needed more time, this would have been immediately apparent to her and she would have asked for the extension well before the deadline.
  6. On 4 September 2021, the respondent then wrote the Removal Letter to the appellant. She declined the request for more time to respond and indicated that she had advised the Head of State to dismiss the appellant from office with immediate effect. She offered an ex gratia payment equivalent to three months’ salary to the appellant if the appellant agreed not to pursue proceedings over her dismissal. She also advised that the State would pay for the appellant’s counsel in the contempt proceeding. The respondent also indicated she rejected the allegations of conflict of interest and bias.
  7. In this Court, Mr Harrison argued that the refusal to extend the period for reply was unjustified, as there was no urgency in seeking a response. The respondent accepted in cross-examination that there was no urgency.
  8. The Supreme Court Judge considered that extensive analysis of documents was not required for the appellant to give effective answers to the six stated grounds set out in the Suspension Letter.[26] The Judge considered that the six grounds were amenable to an immediate response from the appellant’s own state of recent knowledge.
  9. For the respondent, Mr Keith also argued that the allegations made in the Suspension Letter did not require analysis of “time consuming detail”. The appellant was provided with a means of accessing the files if she required them, but did not take up that offer.
  10. We do not consider the time provided for the appellant to give an explanation or submission in response to the Suspension Letter was so short as to amount to procedural unfairness. We agree with the Supreme Court Judge that the six grounds were matters on which the appellant ought to have been able to respond based on her own knowledge, with resort to the files held in the Attorney General’s office if necessary. The appellant’s affidavit in this proceeding, in which she addresses the grounds raised by the respondent, does not make reference to any “voluminous litigation files”. We infer that the appellant could have responded to the grounds raised in the Suspension Letter without reference to any such files, but chose not to. Instead of availing herself of the opportunity provided to her to engage with the allegations made against her, the appellant challenged the respondent’s power to suspend and/or remove her from office.
  11. The appellant’s submission that the process was unfair is rejected.

Unreasonableness or illegality?

  1. In the Suspension letter, the respondent outlined six matters of concern about the appellant’s performance of the office of Attorney General. In the Removal letter, she based her decision on all of them. We will refer to them as “grounds” [on which removal was based]. The Supreme Court Judge found that three of these were made out, one was not and two were inconsequential. We heard argument in relation to all of them and will deal with them in the same order as they appeared in the Suspension Letter and Removal Letter. But we observe that the decision under challenge is the respondent’s decision that, due to a breakdown in the relationship between the appellant and the Government, the appellant should be removed from office. So the overall focus is on that decision, rather than on the individual grounds.

First ground: Advice in relation to action after General Election result

  1. The first ground related to the actions taken by the HRPP Prime Minister and others in the HRPP Government after the 9 April 2021 election. These were:
  2. The respondent addressed three possibilities:
  3. The Supreme Court Judge rejected this ground, describing it as “inconsequential and unsustainable”.[28] He said, in the absence of evidence that the appellant gave affirmative advice, she could not be held to account for the ill-advised proclamations and other actions referred to above.
  4. Mr Keith pointed out that the unlawful actions referred to in this ground were truly exceptional, as the Court decisions relating to them demonstrated. He said the respondent wanted to know if the appellant would be prepared to resign if confronted by Government unlawfulness. He said the respondent was not suggesting the appellant was personally responsible for the unlawful actions. The Suspension Letter invited comment from the appellant, but none was forthcoming.
  5. As Mr Keith argued, the actions described above, at [69], were truly exceptional. They were actions that undermined the democratic process. The respondent was entitled to consider that the appellant’s involvement in them, or, if she was not involved, her failure to resign in the face of them, were matters that raised concerns about the appellant’s tenure of the office of Attorney General. While the appellant claimed privilege in relation to her interactions with the HRPP Prime Minister in relation to these events, which meant the Supreme Court Judge was not able to make a finding about the nature of her involvement, if any, in these actions, that did not mean the respondent was wrong to see this ground as relevant to her decision as to whether she had trust and confidence in the appellant. The appellant could have made the point to the respondent that she was prevented by privilege from explaining her position in relation to these events, but she did not do so. In any event, it was reasonably open to the respondent to conclude that if the actions in question were not taken on the advice of the appellant, she should have resigned and that by not resigning, she aligned herself with them. We therefore take a different view on this ground from that taken by the Supreme Court Judge.

Second ground: Conduct in Court proceedings on 23 May 2021

  1. The second ground was the conduct of the appellant in the Supreme Court on 23 May 2021 and her actions after that hearing. The Supreme Court Judge described this as follows:
  2. After these events, an article appeared in a local newspaper effectively saying the appellant had walked out of court in the middle of a hearing. It was attributed to an unnamed court official. The appellant then issued the 23 May statement shortly after the Court concerned had issued its judgment. The 23 May statement rehearsed some of the same technical arguments about Pickwick hearings and service on Sunday and took issue with aspects of the judgment. In particular, the appellant recounted in the 23 May statement that the Chief Justice had told her the hearing was in chambers but contradicted the Chief Justice’s statement by saying: “It was clear to me that it was actually a court hearing of an application of which I had not been duly served”.
  3. The Supreme Court Judge was satisfied this ground was made out. He put it this way:
  4. The appellant’s response to this ground involved technical arguments about the service of documents on a Sunday, the nature of Pickwick service and the difficulty for her in participating in a Court hearing without instructions. Mr Harrison repeated those arguments before us. But as both the Court conducting the hearing concerned and the Supreme Court Judge in this case observed, these arguments miss the point. This was a moment of considerable constitutional peril. It was a time when an Attorney General needed to step up. It is a time when the Court, faced with a constitutional crisis, was entitled to ask for, and expect to get, assistance from the Attorney General. If the Attorney General needed time to seek instructions, she should have asked for it, rather than walking out of the Court. Her lack of courtesy to the Court was compounded by the tone of the press release.
  5. In short, we agree with the Supreme Court Judge’s analysis of this ground and with his conclusion. In our view the respondent was entitled to see the appellant’s conduct as incompatible with her expectations of an Attorney General.

Third ground: Recusal application of 26 May 2021

  1. The third ground related to an application to the Supreme Court by the appellant on 26 May 2021seeking a direction that all Supreme Court Judges should recuse themselves from sitting on an appeal against the decision in Electoral Commissioner v FAST Party or any other appeal relating to Article 44(1A) of the Constitution.[29] The Supreme Court Judge summarised this as follows:
  2. The 27 May statement was issued the day after the recusal application was made. It repeated much of the recusal application but in more intemperate terms. But, as noted earlier, the appellant denied any responsibility for the 27 May statement and had it withdrawn. The recusal application was also withdrawn, but only after its existence was published in news media. The appellant apologised for the 27 May statement (but not for the recusal application; nor did she retract the allegations made in the recusal application). The 27 May statement was not relied upon as a ground by the respondent.
  3. This ground was also found by the Supreme Court Judge to be a valid ground on its own justifying removal of the appellant from office.[30] He noted the context: the recusal application was filed only days after the courtroom events of 23 May and the 23 May statement, which were cited in relation to the second ground.[31]
  4. The appellant’s evidence was that she was acting on instructions from the HRPP Government when making this application (and she was bound to do so given the terms of s 7(1) of the AGO Act, cited earlier). Both the respondent and the Supreme Court Judge accepted this. However, the Supreme Court Judge noted the extreme language used in the application, accusing Judges of actual bias and predetermination, among other things. The respondent indicated in the removal letter that she expected an Attorney General would resign rather than pursue an application in such terms.
  5. Mr Harrison said the appellant accepted in hindsight that the recusal application could have been better worded, to reflect the intended limited scope of the application to recuse (which the appellant said was just to seek a bench comprised of overseas judges for the determination of any matters relation to Article 44(1A)). It certainly could have been. Its terms were extreme and intemperate and, as the Supreme Court Judge noted, indicated the appellant had loss her objectivity and abandoned any pretence of neutral advocacy of the Government’s position. Mr Harrison said this criticism was too harsh. We disagree.
  6. In short, we are satisfied this was a valid ground for the respondent to bring into the mix in determining whether the appellant’s actions had led to respondent to lose trust and confidence in the appellant.

Fourth ground: Failure to correct misrepresentations about the Electoral Commissioner appeal judgment

  1. The fourth ground was the appellant’s failure to correct misrepresentations made by the HRPP Prime Minister about the judgment of the Court of Appeal in Electoral Commissioner v FAST Party.[32] The appellant was not present when these misrepresentations were made. The respondent acknowledged in the Suspension Letter that the HRPP Prime Minister may have made those misrepresentations despite advice to the contrary from the appellant. But she observed that, if that was so, she would have expected the appellant to have resigned. And if it were not so, then the appellant’s advice would have fallen short of the respondent’s expectations.
  2. At the time of the misrepresentations, the appellant was a respondent in the contempt proceeding (along with others, including the HRPP Prime Minister). Mr Harrison argued it was impractical for her to resign in protest at the misrepresentations or to speak out against them when those matters were sub judice in the contempt proceeding. And it would have worsened the constitutional crisis if she had resigned. In any event, after the appellant was removed from office, her successor took no action in relation to the misrepresentations either.
  3. The Supreme Court judge dismissed this ground as inconsequential and unworthy of further consideration.[33] We consider the fact the appellant was not involved in the making of the misrepresentations and was a party to the contempt proceeding means there is a real question as to whether she did anything wrong in relation to this ground. We do not consider it was a proper basis for the respondent to bring into her analysis of whether she had a basis for having lost trust and confidence in the appellant.

Fifth ground: Non-attendance at Chief Executives’ meeting of 24 July 2021

  1. The fifth ground was that the appellant did not attend the first meeting of the new Government on Saturday 24 July 2021 (the day after the Election Result judgment was delivered), despite being directed to do so. The respondent regarded this as a particularly important meeting given the events between the election on 9 April 2021 and the date on which the new Government actually took office.
  2. In her affidavit before the Supreme Court, the appellant denied she received a “direction” or “formal invitation” to attend the meeting. She acknowledged a friend had called her about the meeting but said neither the respondent nor any official of the FAST Party had invited her. (We interpret that as acknowledging she knew about the meeting but decided not to attend). As mentioned earlier, it is puzzling why she did not give her explanation for non-attendance in her letter to the respondent of 30 August 2021, so the respondent could take it into account in making her decision. The appellant denied a news report that she had said she did not attend the meeting because she was too busy drafting a resignation letter.
  3. The Supreme Court Judge dismissed this ground as inconsequential.[34]
  4. The appellant’s evidence about not receiving a direction or official invitation was not contradicted at the trial. That being the case, we accept this ground cannot be sustained on the evidence. But it would have been prudent for the appellant to inform the respondent before the Removal Letter of this, rather than waiting until the current proceedings were before the Court.

Sixth ground: Inaction concerning continuing attacks on the Judiciary

  1. The sixth ground was that the appellant did not take any steps in response to the unprecedented attacks on the Judiciary by the HRRP Prime Minister and others.[35]
  2. The respondent wrote to the appellant on 4 August 2021, asking what steps she had taken and what steps she proposed to take in relation to the attacks that had happened up to that date (more happened later). These attacks were serious in nature. The Supreme Court Judge described them as follows:[36]
  3. The appellant replied in a letter of 4 August 2021 in which she referred to parties exercising their right of free speech and noted that criticism had been levelled at not just the judiciary but others, including the appellant herself. She requested a meeting with the respondent, which took place on 5 August 2021. The appellant’s answer to the respondent’s inquiry was that she did not consider action was required because the matters the respondent raised were before the Court in the contempt proceeding and the appellant was a party to that proceeding. (We interpolate that the contempt proceeding dealt with matters that occurred in May and not the criticisms made after the Election Result judgment in late July and August). The respondent said she did not consider the appellant’s response met her expectations of an Attorney General.
  4. The Supreme Court Judge was critical of the appellant’s failure to take action on these attacks on the Judiciary. He said her reliance on her participation in the contempt proceedings was misplaced. He said if she considered she was in a position of conflict preventing her taking action, she should have resigned. He considered this ground on its own was a valid ground for removal of the appellant from office.[39]
  5. Mr Harrison argued that the respondent’s complaint under this ground was not the appellant’s inaction in response to the criticisms of the Judiciary, but rather that the appellants letter of response on 4 August 2021 did not meet expectations. He said the response was measured and did not justify removal. That seems to us to be an unduly narrow reading of the Suspension Letter. The ground of complaint was headed “Inaction concerning continuing attacks on the judiciary” and the focus was on that inaction, with the appellant’s letter being referred to as the record of the appellant’s inaction and her attempt to justify it.
  6. We agree with the Supreme Court Judge’s criticism of the appellant’s failure to speak out in defence of the judiciary and against the attacks on the judges by the HRPP Prime Minister. We consider that failure was, given the extreme nature of the attacks, indefensible. The fact that the appellant did not consider it was open to her to do so or not necessary for her to do so indicates just how clearly she had identified herself with the actions of the HRPP Prime Minister and the outgoing Government and left her in a position where she could not take the action that was obviously required of an Attorney General. The respondent was entitled to see the appellant’s failure to act as inconsistent with the conduct that could be expected of an Attorney General.

Overall analysis

  1. We have set out our evaluation of the six grounds, which were the focus of much of the argument before us. But the decision under review is the decision to remove the appellant and that is the focus of our attention.
  2. Mr Harrison highlighted the grounds that were said not to have been made out and said that, as the respondent gave each ground equal weight, her reliance on three (or, as we have found, two) invalid grounds necessarily invalidated her decision. (In fact, the respondent said she relied on all grounds, not that she weighted them all equally). He argued that it was not open to the Supreme Court Judge to classify some grounds as inconsequential when the decision maker herself had seen them as significant.
  3. Mr Harrison cited in support of this proposition the decision of the Court of Appeal of New Zealand in New Health.[40] In that case, the Court of Appeal accepted that a mistake of fact was a possible ground of judicial review, but only if there was a mistake in relation to a matter of established fact and only if the mistake was material, in the sense that it played a material (though not necessarily decisive) part in the reasoning of the decision maker or influenced the decision maker.[41]
  4. Mr Keith argued that an error in one component of an overall factual assessment does not invalidate that assessment. He cited the decision of the Supreme Court of New Zealand in Bryson v Three Foot Six Ltd in support of that proposition.[42] The Supreme Court in that case said an error concerning a particular fact which is only one element of a factual finding, where there is support for the finding in other parts of the evidence cannot be said to give rise to a finding on “no evidence” (which would mean an error of law had occurred).[43]
  5. We do not consider the Bryson analysis assists in the present context: the question for us is not (as it was in Bryson) whether a factual finding has been made when there is no evidence to support it. Rather, the question is whether the decision of the respondent is amenable to judicial review. Nor do we see New Health as assisting. In that case the Court was considering whether there had been a mistake of fact (that face coverings were an effective measure to contribute to preventing or limiting the risk of the outbreak or spread of Covid-19) which was a material factor in the making of an order requiring them to be worn in some environments. The Court found there was no mistake of fact: whether face covering were effective was a matter of medical and scientific opinion and a difference of opinion is not a mistake of established fact.[44] The Court in New Health referred to the decision of the Supreme Court of New Zealand in Ririnui v Landcorp Farming Ltd.[45] Ririnui exemplifies the nature of the mistake of fact ground: there the decision maker was told that a Treaty of Waitangi claim had been settled, when that was not, in fact, the case. This was a material factor in the decision and the mistake of fact was in relation to an established fact that could have been demonstrated by objective and uncontentious evidence. That is not the situation that arises in this case.
  6. On our view of the case, the issue is whether the circumstances that arose in the period between the election and the date of the Suspension Letter were such as to entitle the respondent to conclude that she did not have trust and confidence in the appellant as Attorney General. The required evaluation of the actions and inactions rather than the making of findings of fact, with a view to reaching a conclusion about the respondent’s trust and confidence in the appellant. The fact that the respondent cited in support of her decision two matters that we have found were not proper bases for forming a view about trust and confidence does not mean the respondent made an error in relation to an established fact in New Health terms. Nor does it amount to an error of law in Bryson terms (as it would be if the conclusion reached by the respondent was based on no evidence; in this case there was evidence that strongly supported the conclusion).
  7. In truth, the position of the appellant had become untenable by the time of the Suspension Letter. It was not tenable for her to remain at the heart of Government led by the respondent given her clear identification with the HRPP Prime Minister and his colleagues in the period after the election and her conduct during that period. As noted above, at [59], the respondent offered an ex gratia payment to the appellant if the appellant were to resign. We see that as generous in the circumstances.
  8. We do not consider there was any legal error in the respondent’s decision, nor do we consider it was unreasonable. We do not see the fact that neither we nor the Supreme Court Judge agree with every aspect of the Removal Letter undermines that conclusion. We do not accept Mr Harrison’s contention that the appellant’s case should succeed if the Court took a different view from that of the respondent on any of the six grounds set out in the Suspension Letter and Removal Letter. As we see it, the two grounds on which we take a different view from that of the respondent are immaterial, given the strength of the other grounds on which she based her decision. Both the Supreme Court Judge and we had the benefit of considering the detailed responses of the appellant in her evidence in the Supreme Court. The respondent did not, because the appellant opted not to respond substantively to the grounds set out in the Suspension Letter when given the opportunity to do so by the respondent.
  9. We therefore uphold the Supreme Court Judge’s decision to dismiss the judicial review application.

Relief

  1. Given our conclusion above, it is not necessary for us to consider issues relating to relief.

Result

  1. The appeal is dismissed.

Costs

  1. The appellant must pay costs of $5,000 to the respondent.

HON. JUSTICE ASHER
HON. JUSTICE YOUNG
HON. JUSTICE O’REGAN

[1] Betham-Annandale v Attorney General [2024] WSSC 56, Harrison J [the Supreme Court judgment].

[2] See, for example, Fa’atuatua i Le Atua Samoa ua Tasi (FAST) Inc. v Malielegaoi [2022] WSSC 7 [the Contempt judgment] and Attorney General v Latu [2021] WSCA 6 [the Election Result judgment].

[3] The issue is more accurately whether there is a power to advise the Head of State to remove an Attorney General from office. But for ease of reference, we will refer to this as a power to remove.

[4] Supreme Court judgment, above n 1, at [31].

[5] At [78]–[79].

[6] Strictly speaking, the power contended for by the respondent was to advise the Head of State to remove the appellant from office. For ease of reference, we will refer to removal rather than advice to remove.

[7] R (Morgan Grenfell & Co Ltd) v Special Commissioners of Income Tax8 [2002] UKHL 21, [2003] 1 AC 563 at 45.

[9] Poynter v Commerce Commission [2010] NZSC 38, [2010] 3 NZLR 300.

[10] At [46].

[11] Australian Capital Television Pty Ltd v Commonwealth (No 2) [1992] HCA 45; (1992) 177 CLR 106 at 135 [ACTV].

[12] See Zurich Insurance Co Ltd v Koper (2023) HCA 25, (2023) 277 CLR 164 at [26]–[27] per Kiefel CJ, Gageler, Gleeson and Jagot JJ and the cases cited there. The minority (Gordon, Edelman and Steward JJ) also cited the above statement by Mason CJ in ACTV, but interpreted it differently: at [41]–[42].

[13] Hinds v The Queen [1976] 1 All ER 353 at 380.

[14] At 359–360.

[15] Supreme Court judgment, above n 1, at [28].

[16] Woodroffe v Fisher [2017] WSCA 9 at [43]. In that case, this Court was required to interpret Article 7 of the Constitution. It commented that the words were to be given their plain meaning, but with due regard to the Constitution as a whole in the specific context in which the words appear, and cited section 7(3) of the Acts Interpretation Act as authority for that approach.

[17] Supreme Court judgment, above n 1, at [28].

[18] At [26].

[19] At [31].

[20] Citing New Health New Zealand Inc v Minister for Covid-19 Response [2025] NZCA 592 [New Health] at [104].

[21] Barratt v Howard [2000] FCA 190 (FC), (2000) 170 ALR 529.

[22] At [74].

[23] Contempt judgment, above n 2, at [78].

[24] At [79]–[84]. The appellant apologised to the Court in the Contempt proceeding and the respondent and the other applicants sought to discontinue their claims. The Supreme Court did not accept the discontinuance. However, the Court found the attempt to discontinue against the appellant was appropriate: at [83].

[25] Supreme Court judgment, above n 1, at [82].

[26] Supreme Court judgment, above n 1, at [84].

[27] See Contempt judgment, above n 2, at [7]–[15] for more detail about these events.

[28] Supreme Court judgment, above n1, at [78].

[29] Electoral Commissioner v FAST Party [2021] WSSC 2 [Electoral Commissioner judgment].

[30] Supreme Court judgment, above n1, at [62].

[31] At [60].

[32] Electoral Commissioner v FAST Party [2021] WSCA 2. The misrepresentations are set out in the later judgment of the Court of Appeal in the same proceeding: Electoral Commissioner v FAST Party [2021] WSCA 5 at [7]–[10].

[33] Supreme Court judgment, above n1, at [79].

[34] At [79].

[35] Examples of the attacks are set out in the Supreme Court judgment, above n 1, at [64].

[36] At [65].

[37] Contempt judgment, above n 2, at [61]–[62].

[38] At [3]–[4].

[39] Supreme Court judgment, above n 1, at [72]–[74].

[40] New Health, above n 19.

[41] At [104].

[42] Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] NZLR 721 [Bryson].

[43] At [28].

[44] At [133].

[45] Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2026 1 NZLR 1056.

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