Home | Databases | WorldLII | Search | Feedback Court of Appeal of Solomon Islands

Apaniai v Attorney General [2016] SBCA 6; SICOA-CAC 29 of 2015 (22 April 2016)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. The appellant, the current Attorney-General, was a High Court Judge and ex officio a member of the Court of Appeal of the Solomon Islands from 1 April 2011 until his retirement on 17 October 2014. He served in this capacity for a period of three years and eight months.
2. Upon retirement the appellant did not consider he had receivedthe entitlements due to him and commenced proceedings against the Attorney-General. By the time of the trial only one issue remained, which was recorded in a document dated 1 June 2015, described as ‘Agreed Facts and Issues’. The only issue before the Judge was agreed as:

“Whether as regards long service benefit General Order F29 (as amended by Public Service Circular Memorandum number 12/2014) applies to the claimant, or whether only Regulation 29 of the Constitutional Offices (Terms and Conditions of Service) (Puisne Judges) Regulations 2013 applies to him.”

3. At the time the proceedings were issued the appellant was not the Attorney-General. He was appointed to his current position on 26 June 2015. The matter was heard by Faukona J on 15 October 2015. He delivered his decision on 27 November 2015. On the critical issue raised in the document outlined abovethe Judgedetermined at [9] and [10] of his decision, where he stated:

“9. The argument that long and dedicated service benefit provided under GO F29 (as amended by Public Service Circular Memorandum No. 12/2014) still applies to the Claimant, or the judges for that matter, is out of context. One stand out reason is that the GO provision together with the Circular memorandum No.12/2014 were not endorsed by Parliament or the Prime Minister, therefore do not govern the payment of long service benefit to the Claimant.

10. Another reason is that GO A 105 (b) (i) and (iii) stated that where alternative provision is made for a particular Officer of the Government in any Act or regulation or rule, by-law or order made by any Act, the General Orders do not apply. Regulation 29 is an alternative provision to GO F29 or circular Memorandum No-12/2014. This is further reinforced by GO A 115 which clearly and plainly stated where any conflict exists between law and General Orders, the law prevail. Indeed Regulation 29 must prevail.”

4. We consider this was enough to dispose of the agreed issue between the parties. Unfortunately, the Judge then proceeded to consider the matter further, and applied principles of contractual interpretation and concepts of uncertainty to decide that Regulation 29 was incomplete, and dismissed the appellant’s claim.
5. In doing so, we are satisfied the Judge erred.

Submissions

6. On this appeal Mr Afeau submitted that the Judge was not free to go beyond the agreed issues. He further submitted that the Judge erred in law and fact by holding that Regulation 29 of the Constitutional Offices (Terms and Conditions of Service) (Puisne Judges) Regulations 2013 (COR) was incomplete and, therefore, the appellant was not entitled to a long service benefit. He submitted that GO A105 and GO A115 were a complete answer to the respondent’s submissions. Finally, he submitted that the Judge erred in applying principles relating to the interpretation of contracts to the interpretation of Regulation 29 COR.
7. On behalf of the respondent, Mr Banuve accepted that the issue was limited in front of the Judge to the one issue set out above. However, in support of the decision he argued that the General Orders (GO)relating to Long Service Benefit(LSB) needed to be read together with Regulation29 COR that applies to Puisne Judges.
8. His submission was that previously LSB for judges was governed by GO. LSB under GO required that a term of years (15) be served before entitlement to LSB arose. He accepted that Regulation 29 introduced a new regime for LSB for Puisne Judges. But he argued it only went to the quantum of such LSB. He submitted as it was silent as to a qualifying term of years it had to be read in conjunction GO F29. Effectively, this was a submission that the term of years in GO F29 had to be imported into Regulation 29 COR. He submitted this was the only construction that would give effect to the true intent and purpose of LSB.

Decision

9. Regulation 29 COR was inserted on 19 December 2013. The regulations were made by the then Prime Minister, the Hon. Gordon Darcy Lilo. In doing so, he exercised the powers conferred on him by s 3 COR. There was no attack on the vires of the regulations.
10. It is clear to us that a decision was made to treat LSB for Puisne Judges differently from other Public Officers and public employees. Regulations to this effect were put in place under COR. Regulation 29 did not insert the need for any qualifying term of years.
11. Regulation 29 reads:

“A long service benefit to be paid at 25% of the annual salary at the end of a Puisne Judge’s term of office multiplied by the number of years served in that office.”

12. This regulation is clear on its face. LSB can require a set term of years but in Regulation 29 no qualifying term is stated. We do not accept Mr Banuve submission that it needs to be read in conjunction with GO F29 to give it effect.A new regime for LSB for Puisne Judges was set up. On the plain reading of Regulation 29 COR LSB commences from the start of service. In the absence of specific cross reference to GO F 29 the only way it would be proper to read the time limits of GO into Regulation 29 COR would be if that regulation could not be given effect to without the additional words.. Clearly, Regulation 29 COR can readily be given effect. It would be wrong in such circumstances to import words into it to reach a different meaning of the regulation.
13. Given that conclusion GO A 105 and GO A115 have effect. GO A 105 states:

“Application

General Orders apply to the public service and all public officers and other Government employees are bound thereby except insofar as:-

...

(b) alternative provision is made for any particular public officer or other employee of Government in any —

...

3. Regulation, rule bye-law or order made under any such Act or ordinance;”

14. The reference to “Act or ordinance” are acts or ordinances of the Solomon Islands. Vires regulations have been made pursuant to another Act. GOA105 can have no application to this particular regulation made under COR.
15. Further GO A115 reads:

Conflict

In the event of conflict between General Orders and any Ministerial instruction or direction General Orders shall prevail but where any conflict exists between the law and General Orders the law shall prevail.

16. In this case we are dealing with regulations which were made under another Act, so under both GO A105 and GO A115 Regulation 29 COR must take precedence.
17. The Judge’s ruling answered the agreed issue. He did not need to go further.Regulation 29 COR is clear on its face. It means that any Puisne Judge is entitled, at the end of service as a judge, to a 25% long service benefit based on the annual salary at the end of the Puisne Judge’s term of office. That is to be multiplied by the number of years served in that office. It matters not whether the Judge’s service was ended by death or illness, resignation at the statutory date or any earlier resignation. That is the plain, simple meaning of Regulation 29.
18. However, it appears the judge may have determined to go further because Regulation 29 COR was replaced10 August 2015. Mr Banuvestated that he had been unable to find the relevant regulation. It is Constitutional Offices (Terms And Conditions of Service) (Puisne Judges) Regulations 2015. They were signed by the Prime Minister Hon. Manasseh Damukana Sogavareon the date set out above. (Solomon Islands Gazette.Extraordinary Gazette NO. 110). By Regulation 26 of those Regulations LSB entitlement required 7 years continuous service. The quantum of the LSB remained at 25% of his annual salary. If the judge did have concerns that these regulations went to the outcome of this case he was in error. His task was to interpret Regulation 29 COR as it applied to the Appellant and later amendments are irrelevant to that.
19. It is a Judge’s responsibility to interpret legislation. He cannot decline to give effect to legislation by considering it incomplete especially given that Regulation 29 in the version we are concerned with is completely clear on its face.
20. It is unnecessary to deal in detail with the citation from Bennion, Statutory Interpretation, 2nd Ed and the cases contained in the appellant’s submissions dealing with the requirement to reconcile inconsistencies within regulation. In the words of Lord Dunedin:^[1]

“A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable.”

21. In this case there are no inconsistencies to be reconciled in Regulation 29 COR. It is clear on its face.
22. For the sake of completeness, we would add that it is wrong for a Judge to turn to contractual principles in matters of statutory interpretation.
23. The basic principle of statutory interpretation, which was readily applicable in this case, is to give words their plain and ordinary meaning.
24. For the reasons given, Regulation 29 COR takes precedence over GO. It means that the appellant is entitled to a long service benefit at 25% of the annual salary at the date of his resignation of 17 October 2014, for a period of three years, seven months and 17 days.
25. The appeal is allowed. The respondent is ordered to pay the appellant a long service benefit of 25% of $147,000, multiplied by three years, seven months and 17 days.
26. There will be costs to the appellant in this Court and below.
    

.......................................
Goldsbrough P

..........................................
Ward JA

..........................................
Hansen JA

^[1] Whitney v Commissioners of Inland Revenue [1926] AC 37 at 52; [1925] 10 Tax Cas 88, 110.