SC2330

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 61 OF 2022

BETWEEN:
SHIRLEY POHEI 
Appellant

AND:
APEO FUATA SIONE LM MPP, CHAIRMAN, PUBLIC SERVICES COMMISSION
First Respondent

AND:
PUBLIC SERVICES COMMISSION
Second Respondent

AND:
BENJAMIN SAMSON, SECRETARY, DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Logan, Geita and Dingake JJ 
2022: 23rd August & 16th December  

STATUTORY INTERPRETATION – construction of ss 18 and 41 of the Public Services (Management) Act 1995 – whether s 41 of the Public Services (Management) Act 1995 excludes review of a dismissal decision made under a contract of employment – where the relevant contract of employment included specific provision for discipline – where s 41 provides that such a contract is exempt from Part XIV of the Public Services (Management) Act 1995 – held: the Public Services Commission retains jurisdiction to review the disciplinary process under s 18 of the Public Services (Management) Act 1995

JUDICIAL REVIEW – privative clauses – whether s 18(3)(d) of the Public Services (Management) Act 1995 ousts court’s jurisdiction to judicially review decision of Public Services Commission – where s 18(3)(d)(ii) provides decision of Commission final after 30 days – held: s 18(3)(d)(ii) does not oust the court’s jurisdiction under s 155(4) of the Constitution to perform judicial review

LAND LAW – Registrar of Titles’ immunity from suit – s 181 Land Registration Act 1981 – whether immunity extends to disciplinary action taken under contract of employment – where employee of the Department of Lands and Physical Planning acted as Registrar of Titles – where disciplinary action brought in relation to conduct while acting as Registrar – held: the immunity from suit in s181 of the Land Registration Act does not extend to disciplinary action under a contract of employment 

APPEALS – appeal to Supreme Court – where National Court dismissed application for judicial review – where National Court’s decision based on erroneous construction of the Public Services (Management) Act 1995 – where National Court otherwise dismissed applicant’s claim that Public Service Commission denied the applicant procedural fairness and that the Commission’s decision was unreasonable – where no error in National Court’s determination on issues of denial of procedural fairness and unreasonableness – appeal dismissed

Facts:

The appellant was employed as a Manager, Legal Services within the Department of Lands and Physical Planning (Department). The appellant’s employment was governed by a contract made pursuant to s 41 of the Public Services (Management) Act 1995 (PSM Act). Relevantly, that contract included provisions governing the process for discipline. 
During the course of the appellant’s employment, the appellant was appointed to act as the Registrar of Titles (Registrar) under the Land Registration Act 1981 (the Land Registration Act).
The appellant was subject to disciplinary action in relation to conduct which occurred during the period in which the appellant was acting as the Registrar. The relevant conduct was either illegally or negligently cancelling two titles to State leases and a registered mortgage under the Land Registration Act. The third respondent dismissed the appellant after the appellant provided her response to the charges. 
The appellant wrote to the second respondent, the Public Services Commission (Commission), seeking to challenge her dismissal and the related forfeiture of a gratuity. That representation was accepted as a complaint for the purposes of s 18 of the PSM Act. The Commission ultimately upheld the appellant’s dismissal following a hearing in which the appellant was provided the opportunity to lead evidence and make submissions. 
Following a delay of over a year, the appellant sought leave to commence judicial review proceedings in the National Court challenging the decisions of the Department and the Commission. The grounds relied upon by the appellant were that the decisions of the Department and the Commission denied the appellant procedural fairness and were unreasonable. Although the appellant contended these grounds applied to both the decision of the Department and the Commission, the basis for such conclusions in relation to the Commission’s decision was not articulated. The appellant also sought to contend that s181 of the Land Registration Act operated to shield the appellant from disciplinary action in relation to conduct which occurred while the appellant was acting as the Registrar. 
Leave was ultimately granted and the substantive judicial review application was dismissed by the National Court in reasons given ex tempore. The judgment of the National Court discloses that the principal reason for the dismissal of the appellant’s application was a finding of the primary judge that s 18(3) of the PSM operated to exclude the National Court’s jurisdiction in circumstances where judicial review proceedings were commenced more than 30 days after the appellant was notified of the Commission’s decision. 

Held:

1.	Section 41(3) of the PSM Act does not operate to exclude a review of a contractual disciplinary process by the Commission under s 18 of the PSM Act.  
2.	Section 18(3)(d)(ii) of the PSM act provides for when the Commission’s decision on a s 18 review becomes administratively final. That administrative finality is always subject to an exercise of the constitutionally entrenched judicial review power conferred by s 155(4) of the Constitution. 
3.	A person aggrieved by a decision of the Commission made under s 18 seeks to institute a judicial review proceeding after it has become administratively final must ordinarily provide a satisfactory explanation for delay: Lucic v Nolan [1982] FCA 232; 45 ALR 411 referred to. 
4.	The exemption conferred on the Registrar of Titles by s 181 is only from civil suits which might otherwise have been brought against the Registrar personally, and then only if the Registrar has acted in good faith. The immunity does not extend to the taking of disciplinary action against the Registrar, either under the PSM Act itself or under an employment contract made under s 41 of that Act. 

Cases Cited
Papua New Guinea Cases

Ragi v Maingu [1994] SC 459 
Wedau v Daniel, Chairman, Papua New Guinea Harbours Board [1995] PGSC 21; [1995] PNGLR 357

Overseas Cases

Lucic v Nolan [1982] FCA 232; 45 ALR 411

Legislation
Papua New Guinea Legislation

Constitution of the Independent State of Papua New Guinea
Claims by and Against the State Act 1996 
Land Registration Act 1981
Public Services (Management) Act 1995
Supreme Court Rules 2012

Overseas Legislation: 

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Crown Proceedings Act 1947 (UK)

Counsel:

Mr. D Kipa with Mr P Sembeko, for the Appellant
Mr. J Holingu with Mr L Agdop, for the Third Respondent
Ms. B Kulumbu, for the Fourth Respondent

16th December, 2022

1.	BY THE COURT: Ms Shirely Pohei is a lawyer by profession. From 2011, until she was dismissed from the public service on 31 October 2018, Ms Pohei was employed by the State within the Department of Lands and Physical Planning (Department). As at the time of her dismissal, Ms Pohei held the substantive position of Manager, Legal Services within the Department.

2.	Between 14 October 2016 and 17 March 2017, Ms Pohei was appointed to act as the Registrar of Titles (Registrar) under the Land Registration Act 1981 (Land Registration Act). The Titles Office is a branch within the Department. Upon ceasing to act as Registrar, Ms Pohei reverted to her substantive position.

3.	From 2016 until her dismissal, Ms Pohei was employed under and held her substantive office pursuant to a contract of employment made under s 41 of the Public Services (Management) Act 1995 (PSM Act). It is desirable at this point to set out the terms of s 41 of the PSM Act:

41. CONTRACTS OF EMPLOYMENT. 

(1)	An officer appointed to a senior management office shall be employed under, and shall hold office in accordance with, the terms and conditions of a contract of employment with the State, made subject to the Salaries and Conditions Monitoring Committee Act 1988. 
(2)	A contract of employment under Subsection (1) shall be executed on behalf of the State by– 
(a)	in respect of appointees under Section 40(2)(a)–the Head of State; and 
(b)	in respect of appointees under Section 40(2)(b)–the Departmental Head of the Department of Personnel Management, and by the appointee. 
(3)	Notwithstanding the provisions of this Act relating to discipline of officers, a contract of employment under Subsection (1) shall make specific provision for discipline and an officer employed under a contract of employment under Subsection (1) is exempted from the provisions of Part XIV. 
(4)	Notwithstanding the provisions of this Act relating to promotion and appointment, where– 
(a)	a contract of employment under Subsection (1) terminates or is terminated and is not subsequently renewed; and 
(b)	the appointee under that contract of employment is not re-appointed to another office under this Act, his employment in the Public Service is terminated. 
(5)	The provisions of this Act shall apply to an officer employed on a contract of employment under this section only in so far as they are not inconsistent with the terms and conditions of the contract of employment.
4.	Ms Pohei’s contract of employment was compliant with s 41(3) of the PSM Act in that it made provision with respect to discipline. That disciplinary process is found in Schedule 3 to the contract. It is not necessary to detail it, only to note that it makes no provision for the review by the Public Services Commission (Commission) of a disciplinary decision.

5.	Arising from her performance when acting as Registrar, Ms Pohei came to be charged by the Head of the Department (Departmental Head) with disciplinary charges. Those charges concerned her conduct when acting as Registrar. More particularly, the charges alleged that either illegally or negligently, she had on two occasions cancelled the title to State leases held under the Land Registration Act as well as, on one of these occasions, unlawfully or negligently cancelling the registration of a mortgage.

6.	Ms Pohei replied to these charges on 18 September 2018. It was after consideration of the response that the then Departmental Head dismissed her.

7.	Related to her dismissal, Ms Pohei was informed that a gratuity otherwise due to her had been forfeited.

8.	On 9 January 2019, Ms Pohei wrote to the Commission seeking to challenge her dismissal and the forfeiture of her gratuity. The Commission accepted her letter as a complaint for the purposes of s 18 of the PSM Act. The Commission thereafter conducted a hearing on notice to Ms Pohei and to the Departmental Head. After hearing evidence and submissions, the Commission decided on 27 November 2019 to confirm the dismissal decision. Upon her later inquiry as to its decision in relation to the forfeiture of her gratuity, the Commission advised her that, as she was no longer a public servant, it had no jurisdiction to review that aspect of her case.

9.	It was not until 4 March 2021 that Ms Pohei applied to the National Court for leave to review the decisions of the Commission and also that of the Departmental Head. There were reasons for this delay, which she set out in her supporting affidavit. One related to the general effects of the COVID-19 pandemic, which commenced in the first quarter of 2020. Another related to her relative impecuniosity in relation to securing private legal representation, notwithstanding her endeavours in that regard and to a delay in securing representation via the Public Solicitor. She was granted leave to review in the National Court on 17 June 2021.

10.	On 13 September 2021, the National Court dismissed her judicial review application, for reasons which were delivered ex tempore. The principal reason for which her application was dismissed was a conclusion by the learned primary judge that, on its true construction, s 18(3) of the PSM Act required her to institute her judicial review challenge within 30 days of being notified of the Commission’s decision, failing which the Commission’s decision became final. 

11.	Thereafter, Ms Pohei instituted the present appeal.

12.	Quite properly, although necessarily named as a respondent, the Commission did not undertake a contradictor role either in the National Court or on the hearing of the appeal. 

13.	There are three principal issues for resolution on the appeal. They are:

a.	Is s 18 of the PSM Act excluded from application by s 41 of the PSM Act and, in turn, does the absence of reference to review of a dismissal decision in the contract mean that the Commission lacked jurisdiction to review the dismissal decision?
b.	If s 18 of the PSM Act is applicable, is its meaning and effect as found by the primary judge?
c.	In any event, is the true meaning an effect of an exclusion from personal liability afforded the Registrar by s 181 of the Land Registration Act such that, as Ms Pohei had asserted from the moment of her initial response to the charges, the charges arising from her conduct when acting in that position were always unlawful?
14.	Before proceeding further, s 18 of the PSM Act and the definitions of certain terms found in that section should be set out, as should s 181 of the Land Registration Act. 

15.	Section 18 of the PSM Act provides:

18.	REVIEW OF PERSONNEL MATTERS CONNECTED WITH THE NATIONAL PUBLIC SERVICE. 

(1)	The Commission shall, following a complaint made by an officer to the Commission in accordance with Subsection (2), review a decision on a personnel matter relating to appointment or selection or discipline connected with the National Public Service, where that officer has been affected by the decision. 
(2)	A complaint referred to in Subsection (1) shall be – 
(a)	in writing; and 
(b)	made to the Commission by the officer within 60 days of the date on which the decision was made, but the Chairman may waive the time limit where the delay beyond the period of 60 days was beyond the control of the person seeking to make the compliant; and 
(c)	copied to the Departmental Head of the Department of Personnel Management by the officer making the compliant. 
(3)	The procedure to be followed in a review under this section is as follows: – 
(a)	the Commission shall summons – 
(i)	the Departmental Head of the Department of Personnel Management or his delegate; and 
(ii)	the Departmental Head of the Department in which the officer is or was employed, or his delegate, to represent that Department; and 
(iii)	the officer making the compliant, who may at his request and at his own cost, be represented by an industrial organization of which he is a member, or by a lawyer; 
(b)	the persons summonsed under Paragraph (a) shall make themselves available to appear before the Commission within 14 days of the date of summons; 
(c)	the Commission shall – 
(i)	consider all the facts relative to the matter, including – 
(A)	the views of the persons summonsed under Paragraph (a); and 
(B)	the personnel management policies of the National Public Service; and 
(C)	the cost implications of any decision which it may make; and 
(ii)	make a decision to uphold, vary or annul the decision the subject of the complaint; and 
(iii)	give immediate notification of its decision to the persons summonsed under Paragraph (a); 
(d)	the decision of the Commission under Paragraph (c)(ii) – 
(i)	shall be made within 90 days from the date of receipt by the Commission of the complaint, but this period may be extended by the Commission where the reason for the delay is beyond the control of the Commission; and 
(ii)	shall become binding after a period of 30 days from the date of the decision.
Section 2 of the PSM Act materially provides:
“officer” means an officer in the Public Service, but does not include– 
(a)	an employee; and 
(b)	a person employed in an honorary capacity; or 
(c)	a person remunerated by fees, allowances or commission only;
“personnel matters” means decisions and other service matters concerning an individual whether in relation to his appointment, promotion, demotion, transfer, suspension, disciplining or cessation or termination of employment (except cessation or termination at the end of his normal period of employment as determined in accordance with law), or otherwise.
It is common ground that Ms Pohei was an “officer” for the purposes of the PSM Act.
Section 181 of the Land Registration Act provides:
PROTECTION OF REGISTRAR.
The Registrar is not personally liable for anything done or omitted to be done by him in good faith in the exercise of his powers or the performance of his functions under this Act.
THE EFFECT OF S 41 OF THE PSM ACT 
16.	The Departmental Head raised this as an issue for the first time in his written submissions on the appeal. It was not the subject of a notice of contention filed and served in the appeal (as to which, see Order 7, Rule 29(a), Supreme Court Rules 2012). It was not an issue raised by him in the National Court. Nor, before then, did the Departmental Head seek relief by way of an application for a writ of prohibition directed to the Commission prohibiting the Commission from proceeding with its review on the basis that it lacked jurisdiction to do so.

17.	Just as, in the ordinary course of events, an appellant may not save up issues which could have been raised in the National Court and seek to raise them for the first time on an appeal, so, too, ordinarily, may a respondent not save up such issues. In the present case, the new issue raised by the Departmental Head was a pure point of law and, although it ought to have been the subject of a notice of contention, both the appellant and the State were alerted to it by its presence in an outline of submissions served sufficiently in advance not to constitute raising it a denial of procedural fairness. The issue is also one of considerable general importance in the administration of the public service. The interests of justice favour permitting the issue to be raised and resolving it.

18.	It is a given that Schedule 3 to the contract does not make provision for a post-dismissal review by the Commission. However, this contractual stream cannot rise higher than its authorising statutory source. On its true construction, s 41(3) excludes the disciplinary process for which Part XIV of the PSM Act makes provision and requires a contractual substitute. However, s 18 does not fall within Part XIV of the PSM Act. Further, as is made clear by the definition of “personnel matters”, the ambit of s 18 of that Act includes but is not limited to matters of discipline. 

19.	The evident purpose of s 18 of the PSM Act is to confer upon the Commission, on complaint duly made, a wide ranging review jurisdiction in respect of “personnel matters”. The conferral of that jurisdiction offers officers and the public they serve protection from idiosyncratic behaviours, or worse, by Departmental Heads via a complete, independent review on the merits. That review must be conducted in accordance with a reasonably prompt, procedurally fair process, as ordained by s 18 of the PSM Act. 

20.	There is a difference between the disciplinary process itself and the review of that process. The PSM Act itself creates such a difference by locating s 18 outside Part XIV and by the wider ambit of that section. Having regard to the evident purpose of s 18, there is good reason to see why parliament confined the exclusion in relation to contract officers just to an exclusion of Part XIV disciplinary processes. The senior officers to whom s 41 applies, and the public they serve, are just as in need of protection from idiosyncratic behaviours, or worse, by a Departmental Head as their more junior colleagues, perhaps even more so, as it is inherently likely that senior officers will more frequently interact with a Departmental Head.

21.	For these reasons, the submission that s 41 of the PSM Act excludes s 18 of that Act from application to Ms Pohei should be rejected.

A 30-DAY TIME LIMIT FOR JUDICIAL REVIEW?
22.	The jurisdiction which Ms Pohei invoked via the grant of leave to review was not statutory but rather the constitutionally entrenched judicial review jurisdiction conferred on this Court and on the National Court by s 155(4) of the Constitution of the Independent State of Papua New Guinea (Constitution). 
23.	In part, Ms Pohie’s judicial review application was founded on a misconception. 

24.	She sought the review not only of the Commission’s decision but also that of the Departmental Head. But the Commission’s review decision under s 18 overtook that of the Departmental Head. Once its jurisdiction has been invoked by a complaint duly made, the Commission is required to “uphold, vary or annul the decision the subject of the complaint”: s 18(3)(c)(ii), PSM Act. It must conduct a fresh review on the merits of the original decision. The Commission’s resultant decision is not contractual but statutory. It derives its authority not from the employment contract but rather from s 18 of the PSM Act.

25.	It may be accepted that the Departmental Head’s dismissal decision was, given the basis of Ms Pohie’s employment, contractual and thus not amenable to judicial review: Ragi v Maingu [1994] SC 459; Wedau v Daniel, Chairman, Papua New Guinea Harbours Board [1995] PGSC 21; [1995] PNGLR 357. To that extent, Ms Pohie’s judicial review application was grounded in a misconception. But once made, that disciplinary dismissal decision, albeit one made under contract, was just a precondition to the invocation on complaint of the statutory (s 18) administrative review process mentioned. The statements in Ragi v Maingu and Wedau concerning an inability judicially to review a employment contract decision draw a distinction between such a decision and those which entail statutory powers and processes and thus have a public character. The Commission’s decision fell into the latter category, not the former. It was amenable to judicial review. 

26.	Equally, and with all respect to the primary judge, in its reference to finality, s 18(3) has nothing to say, either explicitly or otherwise, about the existence of a jurisdiction judicially to review a decision made under statute, here one made under s 18 of the PSM Act. Neither does s 18 have anything to say about a time within which one must apply to a court for the exercise of that judicial review jurisdiction. Neither of these subjects is mentioned in s 18(3) of the PSM Act. All that s 18(3)(d) of the PSM Act does is to provide for when the Commission’s decision on a s 18 review becomes final administratively. That administrative finality is always subject, as with other otherwise final administrative decisions, to an exercise of the constitutionally entrenched judicial review power conferred on this Court and on the National Court by s 155(4) of the Constitution. That power is not, and may not be, removed or restricted by statute. The Constitution is the supreme law.

27.	That is not to say that the 30-day period for which s 18(3)(d) of the PSM Act provides is irrelevant in relation to whether the National Court would grant leave to review in the exercise of the jurisdiction conferred by s 155(4) of the Constitution. 
28.	There is an obvious public interest in timely finality in the range of decisions on “personnel matters” which may become the subject of merits review under s 18 by the Commission. For example, aside from the legitimate interest of an officer appointed to a position once held by an officer who has been dismissed, there is a public interest in the holder of the office concerned performing the duties of that office confident in the knowledge that they were indeed appointed to a vacant office. Uncertainty in such matters would be antithetical to good public administration. So it is only to be expected that an applicant for leave to institute a judicial review proceeding after a review decision has become administratively final must, ordinarily, provide a satisfactory explanation for delay.  In an analogous context in Australia, Fitzgerald J adverted to such considerations in Lucic v Nolan [1982] FCA 232; 45 ALR 411 in deciding not to grant an extension of time to an applicant within which to seek the judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of a public service dismissal decision in circumstances where that dismissed officer offered no satisfactory explanation for his delay in instituting a proceeding and could be seen to have rested on his rights. But Ms Pohei provided an explanation to the satisfaction of the judge who granted leave to review. 

AMBIT OF REGISTRAR’S EXEMPTION FROM PERSONAL LIABILITY
29.	From the very outset, Ms Pohei has asserted that the effect of s 181 of the Land Registration Act was to render her immune from disciplinary proceedings under her contract. 

30.	Although its asserted effect was raised as a ground of review, the learned primary judge did not consider the meaning and effect of s 181 of the Land Registration Act. That was evidently because of the conclusion his Honour reached as to the meaning and effect of s 18(3) of the PSM Act. 

31.	The meaning and effect of s 181 of the Land Registration Act has not hitherto fallen for consideration in this jurisdiction. 

32.	Uninformed by authority, it is by no means impossible to see why Ms Pohei considered that the section did confer immunity from disciplinary action upon her in relation to her actions when acting as Registrar. It is possible, without any strain of language, to read into “not personally liable” a generality of application such that it would extend to disciplinary action under a contract of employment or, for that matter, under Part XIV of the PSM Act. The central importance of the Registrar’s role in the Torrens system of title by registration for which the Land Registration Act provides, especially including the exercise of powers of correction and cancellation under s 161 of that Act are such that it might even be said that there is a purpose of construing s 181 in such a broad way so as to facilitate independent decision-making by the Registrar. 

33.	However, s 181 of the Land Registration Act must be construed in the context of the whole of that Act. So doing discloses that parliament has made provision for statutory causes of action for damages by a person wrongfully deprived of an estate or interest in land (s 150) or who suffers loss or damage occasioned by an omission, mistake or misfeasance of the Registrar or a person in the Registrar’s office (s 151). It has also made provision for the establishment and funding of an Assurance Fund (s 138) from which damages awards in respect of such causes of action may be recovered. Moreover, insofar as the Assurance Fund may not be sufficient, any such deficiency is to be paid from Consolidated Revenue: s 141(2), Land Registration Act. There is thus a form of government guarantee of, materially, due administration of the register by the Registrar.

34.	Read against this background, it can be seen that the exemption from personal liability conferred on the Registrar forms part of a scheme whereby, materially, in lieu of personal liability, lapses, or worse, in the administration of the register by the Registrar have become the subject of statutory causes of action in which the Registrar is, instead, a nominal defendant with the worth of such causes of action buttressed by a government guaranteed assurance fund. 

35.	The exemption conferred on the Registrar by s 181 is thus only from civil suits which might otherwise have been brought against the Registrar personally and then only if the Registrar has acted in good faith. Parliament has balanced promotion of confidence in the statutory scheme of title by registration via providing for such statutory causes of action and a government guaranteed assurance fund with recognition that there is a public interest in encouraging the Registrar not to shirk from making sometimes difficult decisions by an apprehension of being sued personally for damages. 

36.	None of this entails reading s 181 of the Land Registration Act so as to confer on the Registrar any greater immunity than an immunity from civil suits for damages. The immunity does not extend to the taking of disciplinary action against the Registrar, either under the PSM Act itself if so employed or under an employment contract made pursuant to s 41 of that Act. 

37.	Moreover, s 181 of the Land Registration Act, in its conferral on the Registrar of immunity from personal liability in respect of acts or omissions in good faith, is by no means an unusual provision. Provisions conferring immunity from personal liability on public servants are prevalent throughout the Commonwealth: see P W Hogg, Liability of the Crown, 2nd Edition (Hogg), p. 91, fn 55. Such provisions have a common purpose, aptly expressed in Hogg (at p 144) in this way:
Government would be impossible if Crown servants were in all respects on an equal footing with private persons. Many acts of Crown servants are authorised by statute (or the prerogative), in which case the acts cannot be tortious. Legal authority is a defence to a tort action against the Crown or a Crown servant. 

Needless to say, there can often be doubt as to whether a statutory power or duty does in fact authorise the commission of an act that would otherwise be tortious. Nevertheless, if a court decides that the statutory power does not provide enough authority, the resulting decision will be invalid, and an invalid decision will not afford any defence to a tort action, whether it is brought against the official who made the decision or the officials who are charged with enforcing it. This result flows from a remorseless application of the concepts of jurisdiction and ultra vires, but it seems harsh that officials who may have honestly believed on reasonable grounds that they were acting pursuant to lawful authority, should be held personally liable in tort. The same harsh result follows even where tortious acts under the authority of a statute that is subsequently held to be unconstitutional; the officials whose duties it was to enforce the statute that is subsequently held to be unconstitutional may have honestly believed on reasonable grounds that the statute was valid; nevertheless, they will be personally liable for any tortious acts committed under its provisions, for an invalid statute cannot clothe their acts with the required legal authority.

[Footnote references omitted]
38.	Statutory provisions which limit the personal liability of public servants and other public officials are counterpoints to other provisions which render the Crown, the State or a public authority amenable to being sued in contract or in tort, or, as in the case of the Land Registration Act, which make provision for a government guaranteed fund from which damages claims may be met. These other provisions of which the Crown Proceedings Act 1947 (UK) is one example and the Claims by and Against the State Act 1996 is another represent an evolution in public policy by parliaments throughout the Commonwealth from an ancient, common law conception that the Crown could do no wrong and could not be sued in its own courts. 

39.	Viewing s 181 of the Land Registration Act against this wider, public policy background offers no support for any construction which would extend its meaning to immunity from disciplinary proceedings. 

40.	For these reasons, Ms Pohei’s claim to immunity based on s 181 of the Land Registration Act should be rejected.

OTHER ISSUES
41.	Although the learned primary judge devoted most of his attention to s 18(3) of the PSM Act, his Honour did express, briefly and at the conclusion of his reasons for judgement, the view that the Commission’s decision neither entailed a denial of procedural fairness to Ms Pohei nor was unreasonable.

42.	The Commission adhered to the process for which s 18 of the PSM Act provides. That process is calculated to offer each party an opportunity to be heard. It is also evident that the opportunity extended to Ms Pohei was to meet a precisely identified case as to why her actions were wither illegal or negligent. She availed herself of the opportunity extended. The learned primary judge was therefore correct to conclude that there was no denial of procedural fairness.

43.	The Commission offered the parties to the review elaborate reasons for its conclusion that the dismissal decision should be upheld. It would not have been enough to demonstrate unreasonableness as a jurisdictional error for Ms Pohei to demonstrate before the primary judge that others might have come to a different view in respect of her actions in relation to the conduct charged. Before us, there was no endeavour to demonstrate that no reasonable person conduct the review could reasonably have reached the conclusion that the charges were made out. There is therefore no reason to disturb the conclusion of the learned primary judge on this issue.

DISPOSITION
44.	Ms Pohei has succeeded in showing that the learned primary judge was in error in the conclusion he reached about the effect of s 18(3) of the which was the principal reason why her review application was dismissed in the National Court. She has also successfully rebutted the Departmental Head’s contention that nothing in any event was amenable to judicial review. She has, however, failed in her claim for statutory immunity and otherwise to demonstrate that the conclusions, brief though they were, as to an absence of jurisdictional error were erroneous. She has, therefore, failed to demonstrate that the order of dismissal ought not to have been made. For that reason, the appeal must be dismissed.
45.	Ordinarily in an appeal, costs would follow the event of a failure to demonstrate that the order under appeal should be set aside. However, in this particular case, given the degree of success that Ms Pohei did enjoy in relation to particular issues and that those issues occupied a substantial proportion of both oral and written submissions, it would not do justice to award all of the costs to the respondents. Yet further, for reasons which were not apparent to us, the Departmental Head and the State were separately represented. A Departmental Head is but an official of the State, albeit a senior one. There was no need for the Departmental Head to be separately represented. Had there been but one such appearance, we would have been disposed, in light of the outcomes in relation to particular issues, to have ordered that Ms Pohei pay one half of the costs of such an appearance. As there were two appearances, we propose to order that she pay one quarter of the Departmental Head’s costs and one quarter of the State’s costs, in each instance to be taxed if not agreed.

Orders

1.)	The appeal be dismissed. 
2.)	The appellant pay one quarter of the costs of the: 
a.	third respondent; and 
b.	fourth respondent, 
in each instance to be taxed if not agreed. 
__________________________________________________________________
Wang Dee Lawyers:  Lawyers for the Appellant	
Holingu Lawyers: Lawyers for the Third Respondent
Office of the Solicitor General: Lawyers for the Fourth Respondent