Suveinakama v Council for the Ongoing Government of Tokelau
[2017] NZHC 3171
•15 December 2017
IN THE HIGH COURT OF NEW ZEALAND SITTING AS THE HIGH COURT OF TOKELAU
I TE KŌTI MATUA O AOTEAROA
E NOHO ANA RITE TONU KI TE KŌTI MATUA O TOKELAU
CIV-2017-485-797 [2017] NZHC 3171
BETWEEN JOVILISI SUVEINAKAMA
First Plaintiff/Applicant
HETO PUKA
Second Plaintiff/ApplicantAND
COUNCIL FOR THE ONGOING GOVERNMENT OF TOKELAU First Defendant/Respondent
ULU O TOKELAU
Second Defendant/Respondent
ADMINISTRATOR OF TOKELAU Third Defendant/Respondent
Hearing: 15 December 2017 Counsel:
C Heaton and J W Goddard for Plaintiffs/Applicants
R J B Fowler QC for First and Second Defendants/Respondents
B J R Keith and P D Appleton for Third Defendant/RespondentJudgment:
15 December 2017
JUDGMENT OF THOMAS J APPLICATION FOR INTERIM INJUNCTION
Introduction
[1] On 24 November 2017, the first and second plaintiffs, both at that time public servants of the Government of Tokelau based in Apia, Samoa, had their employment
terminated with immediate effect on the grounds of serious misconduct. They seek
SUVEINAKAMA v COUNCIL FOR THE ONGOING GOVERNMENT OF TOKELAU [2017] NZHC 3171 [15 December 2017]
interim orders staying their dismissals and reinstating their respective contractual salary and benefit entitlements.
[2] The first defendant is the Council for the Ongoing Government of Tokelau (the Council). The second defendant is Ulu O Tokelau, the head of the Government of Tokelau (the Government) and the Government’s representative on the General Fono and Council. The third defendant, the Administrator of Tokelau, is charged with the administration of the Executive Government of Tokelau in accordance with the Tokelau Administration Regulations 1993.
[3] The application, together with an amended statement of claim, undertakings from both plaintiffs as to damages, and affidavits by both plaintiffs have been served on the defendants on a Pickwick basis. A hearing was held this morning.
Jurisdiction
[4] Tokelau’s status as a non-self-governing territory means that it is officially administered by the New Zealand Government, with some devolution of law-making power to the General Fono, a body of representatives of the people of Tokelau. Between the General Fono meetings, the three Faipule (village heads) and three Pulenuku (mayors) meet as the Council which exercises executive authority in respect of the territory under r 6 of the Constitution of Tokelau. The Tokelau Act 1948 and the Tokelau Amendment Act 1986 establish the governance and court structure on the Islands.
[5] The Council is responsible for discipline and termination of employment of the General Manager (a position formerly filled by the first plaintiff) and Directors, including the Finance Director (formerly the second plaintiff).1
[6] This proceeding is brought before the Court sitting as the High Court of
Tokelau under s 3 of the Tokelau Amendment Act 1986, which is in turn to be read with the Tokelau Act 1948.2 Under those Acts, the law of Tokelau comprises:3
1 See Public Service Rules 2003 (Tok), r 2(3)(ii).
2 Tokelau Amendment Act 1986, s 1(1).
3 Tokelau Act 1948, ss 3A, 4, 4B and 6.
(a) Rules made by the Tokelau General Fono;
(b) Regulations made by the Governor-General in respect of Tokelau;
(c) English common law except to the extent that it is excluded by any enactment or inapplicable to the circumstances of Tokelau; and
(d)New Zealand statutes if expressly provided. A small number of statutes include such provision.
[7] So far as the current application is concerned, s 3(2) of the Amendment Act provides that the jurisdiction of this Court to administer the law of Tokelau is, subject to any applicable Tokelau rules and regulations, to be exercised in the same manner in all respects as if Tokelau was for all purposes part of New Zealand.
Background
[8] The first plaintiff was employed by the Government as “General Manager – Apia” and the second plaintiff was employed as “Director of Finance”. They are both based in Apia, Samoa.
[9] On an unspecified date but on or before May 2017, the Tokelau Public Service Commission (the Commission) was instructed by the General Fono to undertake an investigation into the actions of the first and second plaintiffs in their capacity as Tokelauan public servants. The primary concern of the General Fono related to the plaintiffs’ actions in respect of the purchase of two helicopters by the Government and the purchase of a property in Apia, Samoa.
[10] The investigation followed a report prepared on behalf of the third defendant to review Tokelau governance of capital development purchases. An interim report, dated 9 March 2017, included a comment that the Ulu O Tokelau, General Fono and the Council all failed to exercise sufficient governance over the work of officials.
[11] In April 2017, the Council suspended the first and second plaintiffs from work until further notice pending the investigation.
[12] The terms of reference for the investigation contained allegations that the purchases of the helicopters were unauthorised and the purchase of the property, while authorised, was based on unprofessional advice.
[13] The objectives of the investigation included holding a fair and objective investigation following the rules of natural justice, to hear evidence, to hear the responses of the plaintiffs and to make necessary inquiries.
[14] The first and second plaintiffs raised concerns with the identity of the investigator and the terms of reference.
[15] In June 2017, the first and second plaintiffs wrote to the investigator explaining why they considered it was fair they should be interviewed in Apia rather than Tokelau as required, primarily because they wanted their lawyers present.
[16] On 4 October 2017, the first and second plaintiffs applied for interim relief in respect of their suspension. On 13 November 2017, the plaintiffs received a letter from the second defendant saying the Council approved reinstatement of their salary to be backdated on the understanding they would cooperate with the investigation and discontinue the application for interim relief. The salaries were reinstated and backpay paid on 17 November 2017.
[17] The investigation report was completed on 22 September and provided to the plaintiffs for comment on 4 October 2017. The report found the plaintiffs had not taken necessary steps or obtained relevant approvals in respect of the purchases, including: not obtaining Council and General Fono approval for the helicopter purchases; not obtaining regulatory approvals from the New Zealand, Samoan and United States’ governments to operate the helicopters; and reliance upon an inappropriate property valuation for the property purchase.
[18] The Commissioner concluded the first and second plaintiffs had engaged in serious misconduct and recommended dismissal. That recommendation was accepted by the Council.
[19] By letter dated 24 November 2017 from the Tokelau Public Service, each plaintiff was advised their services were terminated “effective immediately”.
[20] The plaintiffs now apply for interim relief. This is sought on an urgent basis, given what the plaintiffs say in their affidavits about the stress and consequences on them of the decision. This includes the practical impact on the plaintiffs’ respective immigration status because they are permitted to remain in Apia only while employed and have 30 days following dismissal to leave Samoa.
Relevant principles
[21] The application is advanced on the basis of New Zealand law. However, this Court is sitting as the High Court of Tokelau and the test applicable to the application will be Tokelau substantive law supplemented by English common law.
[22] The first question is whether an injunction is available against the Tokelauan Government. The general position at English common law is similar to that in New Zealand.4 Although in the case of M v Home Office their Lordships decided the case under statutory provisions rather than the common law, both Lord Templeton and Lord Woolf made comments on the principle behind the common law position.5 Their Lordships made it clear that, at common law, the court had no power to enforce injunctions against the Crown per se, and could only exercise such power in respect of individual members of the Executive acting in their official capacity.6
[23] That general principle is arguably supported by r 145(6)(i) of the Tokelau
Crimes Procedure and Evidence Rules 2003 (the Rules) which provides:7
(6)(i) No execution or attachment, or process in the nature of execution or attachment, shall be issued against the property or revenues of the Crown in any suit.
4 In New Zealand, the Court has no power to grant an injunction against the Crown but may instead make a declaratory order setting out the rights of the parties: Crown Proceedings Act 1950, s 17.
5 M v Home Office [1994] 1 AC 377 (HL).
6 At 395–396 per Lord Templeton and 409–410 per Lord Woolf.
7 This provision is certainly relevant given the application seeks reinstatement of the plaintiffs’
respective salaries.
[24] There is, therefore, a real issue as to whether there is any jurisdiction to grant the application.
[25] Putting that fundamental issue to one side, the next question is the principles which apply to an application for interim relief.
[26] English authority on interim relief is broadly similar to that of New Zealand.8
[27] The application and amended statement of claim are framed in terms of contractual injunctive relief. As the defendants point out, however, they are in substance a challenge to the exercise of statutory powers which, in New Zealand anyway, involves a broader test.9 This issue was not addressed by the applicants. In the context of an urgent application and limited submissions, there is perhaps in this case little difference between the two approaches.
[28] I will therefore approach the question on the basis of considering first the strength of the challenge and whether there is a serious question to be tried. Secondly, I will address the repercussions of relief/balance of convenience.
Strength of the challenge/a serious question to be tried
[29] The first and second plaintiffs each claim breach of contract as between them and the first defendant and breach of contract/procedural impropriety as against them and the first, second and third defendants.
[30] The plaintiffs allege termination of their respective employment contracts was unlawful because it was without good cause and not justified in all the circumstances. Furthermore, they claim the defendants breached the terms of their respective
employment contracts in that they failed to comply or ensure compliance with the
8 M Fordham Judicial Review Handbook (6th ed, Hart Publishing, Oxford, 2012) at 225: “The Court looks at the case in the round, taking into account matters such as: the strength of the challenge; whether some monetary order is available, providing an adequate ultimate remedy … ; the status quo; and the public interest.”
9 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 143 (HC); and NZ Tax
Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90, (2013) 13 TCLR 531 at [12]. Compare Carlton
&United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).
relevant rules and policies, including the Public Service Rules 2004, the TPSA Human
Resources Manual and the Tokelau Public Service Code of Conduct.
[31] The plaintiffs say no proper consideration was given to the fact the purchases of the helicopters and property were authorised and therefore there is no basis upon which it can be said they were guilty of serious misconduct warranting summary dismissal.
[32] The plaintiffs also claim there was no proper or justifiable basis to commence an employment investigation against them and no proper basis for the Administrator to intervene in the employment matter. Furthermore, there was no lawful basis upon which to find the plaintiffs were guilty of misconduct.
[33] Procedurally, the plaintiffs say the employment investigation breached the relevant rules and procedures, including by not sufficiently particularising the allegations, unfairly penalising them for not agreeing to travel to Tokelau to be interviewed and that they were not given a chance to see the final report prior to the decision they would be summarily dismissed.
[34] For these reasons, the plaintiffs say there are serious questions to be tried.
[35] The defendants question the relative strength of the plaintiffs’ claim for reinstatement into senior positions in the Tokelauan government. In particular, the defendants point to the finding by the investigation that the plaintiffs had undertaken unlawful and very large capital expenditure without, in relation to the helicopters in any event, due authorisation. The defendants point to the Finance Rules 1998:10
Unless the specific transaction has first been approved by the General Fono, no person has the capacity to bind Tokelau in a transaction which –
(i) involves a sum of $50,000 or more …
[36] In the defendants’ submission, although the plaintiffs criticise the investigative process, their affidavits do not contain any evidence of approval of the transactions.
[37] The second plaintiff was employed on a two-year fixed term contract which expired in August 2017. He has operated on the basis of fixed term contracts for some time. They have been repeatedly renewed. In Ms Heaton’s submission, appearing for the plaintiffs, he had a legitimate expectation that his employment contract would be renewed as has been done in the past. It does, however, mean his position and what relief might be granted needs to be considered in this context.
[38] What counsel have not addressed is Tokelauan employment law. Section 6 of the Tokelau Act 1948 provides:
6 Statute law of New Zealand not applicable to Tokelau
Except as otherwise expressly provided, the statute law of New Zealand, whether enacted before or after the commencement of this Act, shall not be in force in Tokelau.
[39] The Employment Relations Act 2000 (NZ) has not expressly been incorporated into Tokelauan law. There is no evidence as to what the appropriate provisions of Tokelau law are. This is important in considering the remedy. While a remedy of reinstatement of an employee’s position is specifically provided for under New Zealand law,11 including on an interim basis, this is a statutory rather than a common law remedy. Counsel have not referred me to any decisions of precedential effect to suggest that reinstatement would be a remedy available under Tokelauan law. Ms Heaton accepts the argument will involve novel questions of law. In her submission, however, the plaintiffs, if successful, are entitled to be put back in the position in which they would have been had the breaches of contract not occurred.
[40] While there may be a serious question to be tried, the application seeks a stay of the summary dismissal of the plaintiffs and reinstatement of their respective contractual salary and benefit entitlements. I am not convinced an interim remedy which will not ultimately be available is justified. Indeed, to sustain an interlocutory injunction, the proceeding must be capable of supporting a claim for a perpetual
injunction.12 If the ultimate remedy to which the plaintiffs may be entitled is a remedy in damages, then inevitably, damages must be an adequate remedy.
Repercussions of relief/balance of convenience
[41] I understand from their affidavit evidence the practical consequences for the plaintiffs of having to leave Samoa by early January 2018. Both plaintiffs have been in their accommodation for some considerable time.
[42] The two plaintiffs are in slightly different situations. The first plaintiff is a Fijian. His wife is also employed by the Tokelauan public service. Her contract has expired. Mr Fowler says her contract is in the process of being renewed, which will enable her (and therefore the first plaintiff) to remain in Samoa.
[43] The property occupied by the first plaintiff and his family is rented by the Government and he has been given one month to vacate it. Mr Fowler was prepared to investigate the possibility of the first plaintiff being able to remain in the property in the interim.
[44] The second plaintiff is Tokelauan. Until his dismissal, he was the longest serving Tokelauan in the Apia Government Office. He lives in private rented accommodation in Samoa. He is currently in New Zealand awaiting dental surgery. His wife and son live in Auckland, where his son attends university. The second plaintiff says it was hoped the family could spend Christmas in Samoa.
[45] He says, rather than wait in Auckland to receive his much needed dental assistance, he is now faced with the prospect of having to incur further expense to travel back to Apia.
[46] The defendants point out that the second plaintiff would be entitled to stay in
Samoa under a 60-day visitor visa. If there is an urgent hearing into the substantive claim, the immediate difficulties identified by the second plaintiff in terms of the
12 McGechan on Procedure (looseleaf ed, Thomson Reuters, updated 24 November 2017) at [HR7.53.03]. See Mayall v Weal [1982] 2 NZLR 385 (HC); and Muzz Buzz Franchising Pty Ltd v JB Holdings (2010) Ltd [2012] NZHC 2490 at [10].
inconvenience of moving out of accommodation over the Christmas period can therefore be alleviated.
[47] The plaintiffs seek to be placed on “garden leave” to maintain the status quo. The defendants oppose interim reinstatement, submitting there is a significant contrary public interest against interim reinstatement and deferral of the claim to a substantive hearing which could be rapidly convened is to be preferred.
[48] Ms Heaton also submits the plaintiffs face financial uncertainty and they should continue to receive their salary until the outcome of the substantive hearing. She emphasises this is important on an equality of arms basis to enable the plaintiffs to prepare for an early hearing. In her submission, there is no countervailing prejudice.
[49] Mr Fowler disputes that position. He says, while the plaintiffs have both provided undertakings as to damages, there is a real question about the ability of the defendants to be able to recover paid wages if the plaintiffs are ultimately unsuccessful. He referred to r 143 of the Rules, which provides:
143 Damages and claims other than Property loss
There is no right to claim damages for other than property loss in any action at Tokelau law.
[50] The defendants say the application follows an extensive investigative and decisionmaking process where the plaintiffs were given opportunities to contribute. In that context, in their submission, any reinstatement on an interim basis would run counter to confidence in that process and in the institutions of the Tokelauan public service.
[51] The defendants also point to what they say are media statements made by the plaintiffs critical of the elected Government of Tokelau and furthermore that the plaintiffs have released Government information to the news media without authorisation and despite their contractual and statutory obligations as senior employees of the Government. They say this is inconsistent with the trust and confidence which is required of a Government employee.
[52] The defendants say they will cooperate with a view to having the substantive claim heard as early as possible in 2018.
[53] Having considered all these matters, I decline the application for interim relief in light of:
(a) considerable doubt as to whether, under Tokelauan law, injunctive relief is available against the Crown;
(b)considerable doubt as to whether reinstatement would be available as an ultimate remedy;
(c) the fact that damages are likely to be the only remedy available and therefore an adequate remedy;
(d)the fact of the challenges the defendants will likely face in recovering any payments made to the plaintiffs if the plaintiffs are unsuccessful;
(e) the practical difficulties referred to by the plaintiffs as justifying urgent interim orders can in large part be addressed; and
(f) an early date for the substantive hearing is available.
Result
[54] For the reasons given, the application is dismissed.
[55] I make the following further orders:
(a) a one day hearing will take place on 8 March 2018;
(b) affidavits in reply from the defendants are to be filed by Thursday
15 February 2018.
[56] Any application for costs will be dealt with on the papers.
Thomas J
Solicitors:
Morrison Kent, Wellington for Plaintiffs/Applicants
Crown Law, Wellington for Third Defendant/Respondent
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