IN THE HIGH COURT OF KIRIBATI 2019

HICH COURT CIVIL CASE NO. 47 OF 2017

		[TAAIRA TIMEON					PLAINTIFF
		[
BETWEEN	[AND
		[
		[ATTORNEY-GENERAL IN RESPECT OF 
		[PUBLIC SERVICE OFFICE				DEFENDANT						

Before:	The Hon Chief Justice Sir John Muria

2 July 2019

Ms Kiata Kabure for Applicant
Ms Ateti Tekawa for 1st Defendant 

JUDGMENT

Muria, CJ:	By a Writ issued on 8 August 2017, the plaintiff, Taaira Timeon, claimed an entitlement to subsistence allowance in the sum of $8,000 as well as general damages and interest from the date of judgment.  Originally, the claim against the defendant was taken out in the names of two plaintiffs, namely 
Taaira Timeon and Kanrooti Aukitino who were both then State Attorneys in the Office of the Attorney General.  At the time of the trial, only Ms Taaira Timeon remained as plaintiff.  Ms Kanrooti Aukitino had withdrawn as plaintiff and became a witness for the defendant.

Background to the Plaintiff’s Case

2.	In May 2017, the plaintiff and Ms Kanrooti Aukitino attended an intensive legal training on Law and Cancer in Melbourne, Australia.  The training was run from 15 May to 2 June 2017.  The plaintiff left Kiribati on 11 May and returned to Kiribati on 5 June 2017, as per her travel itinerary.

3.	The invitation to attend came from the McCabe Centre for Law and Cancer in Melbourne.  The invitation also confirmed that the Intensive Training Programme was fully funded by the Australian Government.  The plaintiff accepted that the training was fully funded by the sponsors which includes travel, accommodation, travel insurance, per diem, visa fee and airport transfers.

4.	Upon her return to Kiribati, the plaintiff pursued her claim for subsistence allowance under Clause E5.4(e)(i) but she was unsuccessful.  The reason for declining her claim was that her trip to Australia for training was fully funded externally.

5.	The plaintiff also made a claim under Clause E5.4(e)(ii) for an abated allowance.  The entitlement to claim under Clause E5.4(e)(ii), however, is now said to be no longer available since it was abolished pursuant to a circular dated 23 May 2017.  It is also stated by Ioataake Timeon that the circular, although dated 23 May 2017, was effective as of 1 October 2016.

Issues

6.	the issue as posed by the plaintiff in this case is whether or not the plaintiff is entitled to be paid subsistence allowance under Clause E 5.4(e)(i) of the National Conditions of Service.

7.	The other issue raised in the course of the argument relates to the issue of abated allowance.  It appears that the plaintiff is not advancing any further claim on this and so the abated allowance issue is not pursued.

Consideration and Determination

8.	As Clause E 5.4(e)(i) of the National Conditions of Service is material in this case, I set out the provisions of Clause E 5.4(e(i)) here:

“E 5.4(e) –
(i)	Subsistence allowance to cover living expenses during the travel will be paid at the rate specified in the international per diems schedule approved by the Secretary PSO,  that prevails at the time of travel, for each night spent away from the employee’s duty station”.

9.	The employee’s entitlement to subsistence allowance under Clause E 5.4(e)(i) is “for each night spent away from the employee’s duty station” payable at the rate prevailing at the time of travel.  The substance of such allowance is that it is payable only to an employee who is “on duty” away from his duty station: Aree –v- Attorney-General [2011] KIHC 27.

10.	The plaintiff at the material time was on official duty, undertaking an intensive training on Law and Cancer in Melbourne, Australia.  She was entitled to subsistence allowance under Clause E 5.4(e)(i) of the National Conditions of Service.  However, that is not the end of the matter.

11.	As a matter of policy,  however, Mr Ioataake Timeon told the Court that the entitlement of subsistence allowance would not be payable to an employee travelling on official duty overseas if the trip is fully funded by other sources.  According to the Secretary, the policy is implied in Clause E 5.4(e)(i) and so as a matter of practice, subsistence allowance is not payable to an employee if the overseas trips on duty is fully funded by a donor or sponsor.

12.	Clause E 5.4(e)(ii)(a) to (g) which provided for abated allowance is now abolished effective as of 1 October 2016.  This is also confirmed by Ioataake Timeon who is currently the Secretary to Public Service Office.

13.	The deletion of abated allowance is confirmed in a Cabinet decision dated 16 March 2017.  The contents of the Cabinet decision is reproduced in the letter from Public Service Office on 23 May 2017 in the following terms:

“From:   Secretary, PSO 	To:   	All Secretaries
					 	Commissioner of Police
						Clerk, Maneaba ni Maungatabu
						Chief Registrar, Judiciary, Betio
						Auditor General, KNAO, Bairiki

						Cc:	Secretary to the Cabinet
File Ref:   21/1				Date:	23rd May 2017

DELETION OF ABATED ALLOWANCE: NNS E.5 (e) ii, (a to g)

Cabinet in its meeting No. 31/17 held on Tuesday 16th March 2017 had 
re-iterated its earlier decision that the abated Allowance as stipulated in NCS E. 5.4(e) (a to g) be abolished.  Cabinet also approved that 1st October 2016 be used as effective date.

In addition Cabinet approved that the inadequate Allowance as NCS 5.4(h) and incidentals as in 5.4(f) with inclusion of Hotel Tax and Loss in Exchange for foreign currency remain claimable where applicable in accordance with conditions as laid down in NCS.

I would appreciate that this information is disseminated to all departments under your portfolio.

Kam rabwa

(Sgd) Ritite Tekiau
For Secretary, PSO”

14.	Section E 5.4 is headed “Policy”, and it deals with entitlements while on overseas travels on duty.  It covers travel arrangements (E 5.4(a)), class of travel (E 5.4(b)), accompaniment of dependents on duty travel (E 5.4(c)), travel allowance payment in advance (E 5.4(d)), subsistence allowance on duty outside Kiribati (E 5.4(e)), incidental allowance (E 5.4(f)), Outfit allowance (E 5.4(g)), inadequate provisions allowance (E 5.4(h), variation of travel itinerary (E. 5.4(i) and accounting for expenditure (E 5.4(j).

15.	The plaintiff’s claim is that the Government was obliged to pay the subsistence allowance under Clause E5.4(e)(i).  Ms Kabure submitted on behalf of the plaintiff that having abolished Clause E5.4(e)(ii) on abated allowance, Clause E5.4(e)(i) becomes a stand-alone provision.  Counsel submitted that there is no qualification on Clause E5.4(e)(i) limiting its application when an official duty travel is funded by another source.  Thus Counsel argued that just because a donor sponsored the plaintiff’s trip, it does not relieve the defendant of its obligation to pay subsistence allowance to the plaintiff under Clause E5.4(e)(i).

16.	I think Ms Kabure’s argument is an attractive one.  However, attractive though it may be, it is one that I think cannot be sustained for two reasons.  First, when civil servants attend meetings or trainings, they are just doing their normal duties as civil servants, except that they are doing so “away from their work station”.  The approved rate is calculated for “each night” away from “duty station”.  It is in effect a form of compensation to the employee for doing his or her normal duties away from his or her duty station.  For performing his or her normal duties, the employee is paid his or her normal salary.

17.	If that reasoning is correct, and I think it should be, then an employee such as the plaintiff in the present case, attending such meeting or training would be receiving “double compensation” if she were to be paid subsistence allowance by the Government as well as by the sponsor for times spent away from “duty station”.  The concept of ‘double pay’ as alluded to by the Secretary to Public Service Office underpins the pitfall that must be avoided when applying Clause E5.4(e)(i) of the National Conditions of Service.

18.	Secondly, as alluded to by the Court of Appeal in Attorney-General –v- Aree [2011] KICA 12; Civ App. 15 of 2011 (31 August 2011) it is debatable as to how the claim for a subsistence allowance should be treated.  My respectful view is to leave the administration of subsistence allowance and other matters in the National Conditions of Service in the capable hands of the administrative authorities.  The Court’s function is simply to interpret and give effect to the provisions of the National Conditions of Service in the same way that the Courts do to legislative provisions.  Lebogang and Others –v- The Attorney-General (1999) 2 BLR 51 (HC).

19.	In this regard, the question of whether the decision not to pay the plaintiff subsistence allowance under Clause E5.4(e)(i) is fair and reasonable is, in my view, properly a decision left to the Secretary to Public Service Office, taking into account the circumstances of the training in Melbourne as well as the circumstances of the plaintiff and the Government Policy approved by Cabinet.  The Court can only interfere with the Secretary’s decision if it is shown to be unfair, unreasonable and unjust.  The plaintiff has not demonstrated that the defendant’s decision in refusing her claim is unfair, unreasonable or unjust.

20.	Thirdly, in a case such as this, where the Secretary to Public Service Office who is the administrator charged with the responsibility of deciding on administrative issues such as the one with which we are concerned here, the Court also needs to be seen as less eager to substitute its own decision for that of the administrator.  As emphasised in Minister for Aboriginal Affairs –v- 
Peko Wallsend (1986) 162 CLR 24 by Mason J (as he then was) that the proper role of the Court was to set limits so that only decisions that fell outside defined boundaries can be impugned.  There was no suggestion in the present case that the Secretary’s decision fell outside the remit of his authority.

21.	There is further pitfall in the plaintiff’s argument that Clause E5.4(e)(i) obliges the Government to pay subsistence allowance to the plaintiff, even if the sponsor fully funded her trip to attend the training in Australia.  If the plaintiff’s argument is accepted, and to follow it to its logical conclusion, it would mean that other entitlements accorded to the plaintiff under the National Conditions of Service, such as airfares to and from Melbourne, would have to be paid by the Government even though the training sponsors have already paid it.  That cannot be right.

22.	The submission by Ms Tekawa of Counsel for the defendant, therefore, makes perfect logical sense, that where an overseas trip is fully funded by donors or sponsors, the Government is not obliged to meet the employee’s entitlements of subsistence allowance under Clause E5.4(e)(i) of the National Conditions of Service.  The plaintiff’s contention in this case that she should be paid Subsistence Allowance as per her claim cannot be sustained.

Conclusion

23.	The issue raised for the Court’s determination in this case can only be answered as follows: 

Clause E5.4(e)(i) of the National Conditions of Service entitles the plaintiff to a subsistence allowance as specified in that Clause.  However as the overseas trip was funded by other donors or sponsors, the Government was not obliged to pay to the plaintiff subsistence allowance as claimed in this case.

The plaintiff’s claim is therefore dismissed.

Costs of the defendant to be paid by the plaintiff to be taxed if not agreed.
Dated the 6th day of September 2019

SIR JOHN MURIA
Chief Justice