[1950-1959] WSLR 113

HIGH COURT OF WESTERN SAMOA

THOMAS

-v-

ATTORNEY GENERAL

22 May, 27 June 1958

MARSACK C.J.

Claim for damages - wrongful dismissal from Public Service - appointment under contract for 3 years - whether Public Service Commissioner competent to enter into such a contract of employment - Samoa Amendment Act 1949 (New Zealand).

It is not competent for the Public Service Commissioner to enter into a contract of employment with any person or to appoint that person to any position in the Public Service of Western Samoa upon terms, which are inconsistent with the provisions of the Samoa Amendment Act 1949. Thus, where as in this case, the plaintiff (an overseas officer) was appointed to the Public Service under contract for 3 years but his appointment was terminated before the expiration of that period, it was held that such a contract directly contravened the provisions of the Samoa Amendment Act which place every member of the Western Samoa Public Service into one of three categories officer, probationer or temporary employee; and which expressly lay down that the employment of any such person may be terminated by the Public Service Commissioner, either immediately in the case of a probationer or a temporary employee or upon giving 3 months' notice in the case of an officer.

In matters relating to the appointment of any person to or dismissal from the Public Service, the Crown and the Government of Western Samoa are not synonymous.

Judgment for Defendant.

ACTION claiming damages for wrongful dismissal from the Public Service of Western Samoa.

Metcalfe for plaintiff.
Winkel, Attorney-General for defendant.

Cur. adv. vult

MARSACK C.J.: This is a claim for ₤3,045 damages for wrongful dismissal, in breach of a contract of employment between the plaintiff and the Government of Western Samoa. Alternatively, plaintiff claims the same damages on the ground of misrepresentation. A further cause of action based on breach of warranty was abandoned at the hearing.

The facts are no in dispute. In the month of April 1956, the Public Service Commissioner of Western Samoa caused to be inserted in several newspapers circulating in New Zealand an advertisement inviting applications for the position of Charge Radiographer at Apia Hospital. The advertisement sets out the terms of the appointment as to salary and allowances, housing provided and furlough privileges, and in particular makes the following statement regarding the term of employment:

"Term of service, is three years for a man and two years for a woman appointee, and furlough is granted, on completion of term, at the rate of one month for each completed year of service".

Plaintiff, who was born and trained in the United Kingdom, left England a little over eight years ago and at the time of the appearance of the advertisement had been resident in New Zealand for about four years. For the last two years and eight months of this period, he had been employed by the Auckland Hospital Board as Charge Radiographer at Middlemore Hospital. Plaintiff applied for the Apia Hospital position, and on the 23rd August 1956 received a letter from the Department of Island Territories in Wellington offering him the position advertised. The material portions of this letter are as follows:-

"I am authorised to offer you the position as Charge Radiographer, Health Department, Samoan Government, Apia, at a salary of ₤973.17.0 per annum old scale, plus ₤195 per annum Expatriation Allowance as for a married man, plus ₤40 per annum Child Allowance for each child residing in Western Samoa, plus deferred Inducement Allowance of ₤20 for each completed three months of service payable at the end of term.

The cost of your fares from Auckland to Apia will be met by the Samoan Government, and also your return fares provided a term of three years is served or your appointment is terminated through no fault of your own before that period expires. Your appointment is made in terms of the Samoan Public Service Regulations 1953. A copy of which is enclosed for your perusal and return".

Plaintiff accepted appointment on these terms and duly took up his position at Apia Hospital. His salary became payable from the 1st October 1956 and in November 1956 was adjusted to ₤1,100 per annum together with the allowances prescribed in the letter from the Island Territories Department on the 23rd August.

Before sailing for Samoa plaintiff had received and had perused not only the advertisement and the offer of employment, but also a copy of the Public Service Regulations in force in Western Samoa, and the brochure on living and employment conditions issued by the Government of Western Samoa through the Island Territories Department. The brochure contains the statement while employees are appointed as permanent members of the Western Samoa Public Service, appointments are in fact for periods of three years terminable by either party at the conclusion of each period. He was not referred to any provisions of the Samoa Amendment Act 1949 except in so far as that amendment is mentioned in the Public Service Regulations, and did not in fact acquaint himself with the provisions of the statute.

Plaintiff at all times carried out his duties to the satisfaction of the Director of Health and of the Public Service Commissioner.

The Government of Western Samoa met with serious financial difficulties during the year 1957 as a result of which it was considered by the Government necessary in the interests of economy to terminate the employment of a number of Government servants. In the month of September an informal discussion was held between plaintiff and the Public Service Commissioner as to the possibility that plaintiff might be dismissed in the course of this economy drive. No definite statement was made by the Public Service Commissioner to the effect that plaintiff would be dismissed, but the latter was advised of the possibility; he was also informed that if his employment were in fact terminated he would be given six months' notice to enable him to make such arrangements as he thought fit. On the 16th December 1957, the Public Service Commissioner wrote to the Director of Health on the subject and a copy of this letter was given to the plaintiff. The material portion of the letter is as follows:

"It appears therefore that the services of Mr Thomas must be terminated and, in terms of my personal undertaking to Mr Thomas, he should now be informed that, unless conditions change in the meantime, he will, on or about 28 February 1958, be given three months' notice of the intention to terminate his services. On such termination, Mr Thomas will be entitled to proportions to furlough pay and will also receive in full, the cost of steamer fares for himself and his family back to Auckland, plus the cost of freight on personal effects".

On the 18th March 1958, the Public Service Commissioner wrote to the plaintiff giving him three months' notice of the termination of his employment. This letter was in the following terms:

"I regret to have to advise you that it has become necessary to terminate your services to the Public Service of Western Samoa. This termination of service is, of course, due entirely to the present difficult financial and staffing position in the Public Service, and is in no sense a reflection on your conduct or ability.

You are not a permanent officer of the Public Service and, having regard to the provisions of the Samoa Amendment Act 1949, so far as they relate to a person on probationary service, your services could be terminated at any time. However, as you already know, I have decided, as an act of grace, to give you three months' notice of the termination of your services, in addition to the period of over six months which has elapsed since I first advised you that your position would have to be reviewed. This letter will therefore formally advise you that your services are to be terminated, with effect three months from the date of this letter.

In terms of the Public Service regulations, you will be entitled to the payment of surface fares for yourself and your family to Auckland and the cost of freight on personal effects, in accordance with the scale specified for this payment.

You will also be entitled to furlough in accordance with the regulations in respect of the period actually served.

It is not, of course, necessary that you remain in your position for the full period of your three months' notice and, in the event of your being able to make arrangements to leave before the end of April, consideration could be given to an extension of the period of furlough actually due under the regulations.

As I indicated at the beginning of this letter, I regret that it is necessary to lose a man with your training and experience but the present circumstances leave no choice."

I am satisfied that one of the material inducements leading the plaintiff to apply for the position of Charge Radiographer at Apia was the term of service was to be three years. Although the formal letter of 23rd August 1956 does not definitely state that his employment was in the first instance to be for three years, I think that plaintiff was entitled to draw that conclusion, not only from he wording of the original advertisement, but also from the confirmation afforded by the passage cited from the official brochure. I am satisfied on the evidence that plaintiff would not have applied for or accepted the appointment if he had been told, in effect, "it is expected that your employment will last three years but it may be terminated at any time without notice."

It was contended at the hearing that the phrase "or your employment is terminated through no fault of you own before that period expires" indicated or at least inferred that the Government might dismiss plaintiff before he had served three years. I do not accept this contention. The phrase quoted could well refer to some illness or accident which might render it impossible for plaintiff to carry out his duties, and it was so read by plaintiff. The advertisement unequivocally infers three years' engagement and there is nothing in the Department's letter to negative this.

I find that the expressed intention of the Public Service Commissioner was that the employment should be for a term of three years. It may be, as Mr Drew says in his evidence, that he framed the advertisement in that way intending only to cover "supplementary terms" such as furlough privileges and steamer fares. But there is to my mind only one way in which the reference to three years in the advertisement can be construed and that was the way adopted by plaintiff. I find therefore that the Public Service Commissioner offered employment on a basis of a three-year term and that the application and acceptance by plaintiff was on that basis. His employment was in fact terminated after a little less than 18 months without cause assigned other than the financial difficulties of the Government, upon three months' notice given on 18th March 1958.

On these findings, it seems that the plaintiff would have a good cause of action against his employer if the latter were a private individual or company. The question for determination of the Court is whether such right of action can be maintained against the Government of Western Samoa.

At the hearing a great deal of argument was directed to the so-called prerogative of the Crown to dismiss any public servant at any time without notice. Several points in the line of authority propounded in support of this proposition require examination.

The authorities cited commenced with three cases decided in 1895 and 1896. In Shepton v Smith [1895] A.C. 229, Lord Hobhouse delivering the judgment of their Lordships says:

"unless in special cases where it is otherwise provided, servants of the Crown hold their offices during the pleasure of the Crown; not by virtue of any special prerogative of the Crown but because such are the terms of their engagement as is well understood throughout the Public Service."

The second of these cases is Dunn v The Queen [1896] 1 Q.B. 116, in which the principle is stated in this form:

"such employment being for the good of the public, it is essential that it should be capable of being determined at the pleasure of the Crown except in certain cases where it has been deemed to be more for the public good that some restriction should be imposed on the power of the Crown to dismiss the servants."

In Gould v Stuart [1896] A.C. 575 Sir Richard Couch delivering the judgment of the Court says:

"this is, in their Lordships' opinion, an exceptional case, in which it has been deemed for the public good that a civil service should be established under certain regulations, with some qualification of the members of it, and that some restriction should be imposed on the power of the Crown to dismiss them."

It is true that in Gould v Stuart (supra) the qualification of the general rule is by way of statutory provision, but there is nothing in the judgment to say that the qualification would not be equally applicable if it were brought into operation by some other valid means. This view of the effect of the judgment is supported by O'Connor J in Ryder v Foley (1906) A.C.L.R. 422:

"There is, however, established by Gould v Stuart [1896] A.C. 575 this qualification that the Crown may by statute, or in any other way, alter the terms of the contract."

From these authorities, three propositions therefore emerge namely:

1. That the usual term of appointment to the public service, giving the Crown the right of immediate dismissal, may be altered and the alteration may be in some way other than by statute.

2. That the general rule is founded not on special prerogative of the Crown but on the generally adopted and known terms of engagement.

3. That the underlying principle is the public interest.

In Western Samoa it has long been the practice of officers from overseas to be engaged on a three-year term and such terms of engagement are well understood throughout the Samoan Public Service. Prospective officers of the Samoan Public Service asked to sever their overseas connections and come to Samoa to take up appointments without any such security of tenure would no doubt decline the risk of casual termination of the appointment, and this would make it very difficult for the Samoan Government to obtain the services of qualified officers from overseas. The power to offer a set term of three years is thus desirable in the public interest.

There is a further broad distinction between the circumstances of the present case and the circumstances common to all the authorities which have been considered. The line of cases from Shepton v Smith (supra) onwards all relate to attempts to set up contracts in the nature of exceptions to the general rule. In the present case, the contract for a three-year appointment alleged by the plaintiff is in accordance with what he puts forward as the general rule applying to appointments to Western Samoa from overseas, and he seeks to establish the rule and not an exception to it.

These authorities however are confined to the matter of the powers and prerogatives of "The Crown". The present case concerned the Government of Western Samoa; and the applicability of the cases cited depends on whether the Government of Western Samoa is to be regarded as synonymous with "the Crown". This requires a short examination of the history of the Government of Western Samoa and is constitutional changes during the past 44 years.

Western Samoa was under German rule when it was occupied on August 29th 1914, by New Zealand Forces. Under the Versailles Treaty, which was concluded on June 28th 1919 and came into force on January 10th 1920, the Government of Germany surrendered all right and title to the islands of Western Samoa which were then in the occupation of New Zealand. In pursuance of agreement by the Allied and associated powers and in consequence of the surrender of Western Samoa......by Germany, the League of Nations at Geneva on December 17th 1920, conferred upon "His Britannic Majesty to be exercised on his behalf by the Government of the Dominion of New Zealand a mandate to administer German Samoa."

The provisions of the League of Nations mandate were brought into effect in the first place by the Western Samoa Order-in-Council 1920 made by His Majesty in Council at Buckingham Palace on March 11th 1920. This was followed in New Zealand on April 1st 1920 by the Samoa Constitution Order, which was shortly afterwards replaced by the Samoa Act 1921. Section 4 of this Act in its original form reads:

"The Executive Government of Samoa is hereby declared to be vested in His Majesty the King in the same manner as if the Territory was part of His Majesty's Dominions."

The overriding authority of the League of Nations was nonetheless recognised. As Blair J. said in In re Tamasese [1929] N.Z.L.R. 20 at p.213:

"Thus it is that the Government of New Zealand becomes what may be called the Administrator of Samoa, not on its own behalf or on behalf of Great Britain, but for and on behalf of the League of Nations."

The constitutional status of the Government of Western Samoa has since 1929 undergone a change, arising out of the events of the Second World War, which must remove any remaining suggestion that it is synonymous with the Crown. The Samoa Amendment Act 1947, commences with the preamble:

"Whereas, in consequence of the dissolution of the League of Nations, the mandate over the Territory of Western Samoa conferred by the League upon His Majesty for and on behalf of the Government of New Zealand, as recited in the principal Act, has ceased to be operative: And whereas pursuant to the Charter of the United Nations signed at San Francisco on the twenty-sixth day of June, nineteen hundred and forty-five, a trusteeship agreement for Western Samoa in the terms in the First Schedule to this Act was approved by the General Assembly of the United Nations on the thirteenth day of December, nineteen hundred and forty-six: And whereas by the said trusteeship agreement it is provided that the Government of New Zealand, as the administering authority, shall have full powers of administration, legislation and jurisdiction over Western Samoa subject to the provisions of the Trusteeship agreement and of the Charter of the United Nations ..."

Section 14(4) amends section 4 of the Samoa Act 1921 (quoted above) omitting the words "in the same manner as if the Territory was part of His Majesty's Dominions". The clear effect of this amendment is to remove the last shred of suggestion that the administration of Western Samoa by the Government of New Zealand is other than as the agent of the United Nations through its General Assembly and Trusteeship Council. Put shortly the Government of Western Samoa is not "the Crown".

In Inland Revenue Commissioners v Hambrook [1956] 1 All E.R. 807 Lord Goddard, C.J. states at page 811:

"... it is curious that there does not appear to be a definite and clear decision whether there is a contract of service between the Crown and its officers in the civil service."

In the whole line of cases starting sixty years ago with Shepton v Smith (supra) I have been unable to find any definite pronouncement by the Court as to whether the engagement of a person in the service of the Crown has the characteristics of contract with the bilateral rights and obligations which the making of a contract entails. This no doubt arises from the unique position of the Sovereign under British law. But, as I have already said, in my opinion the Crown and the Government of Western Samoa are not synonymous; there are prerogatives exercised by the Crown within the British Commonwealth which are not available to the Government of Western Samoa; and I can see no reason why, in the absence of express statutory prohibition, the Government of Western Samoa through its duly appointed representative should not enter into a binding contract, whether of employment or otherwise, and be bound by the terms of that contract.

It therefore became necessary to examine the statutory enactments relating to the employment of persons within the Western Samoan Public Service. The fundamental enactment in the Samoa Amendment Act 1949. Although some reference was made at the hearing to the provisions of Part II of the Samoa Amendment Act 1956, some few days after the engagement of the plaintiff. The Samoa Amendment Act 1949 will for the sake of brevity be referred to in this judgment as the Act.

Section 3 subsections (1) and (2) of the Act read as follows:

"(1) There shall be a Public Service Commissioner of Western Samoa, who shall be appointed by the Governor-General and shall be an officer of the Western Samoa Public Service.

(2) Subject to the provisions of the principal Act and its amendments (including this Act), the Public Service Commissioner shall control the Western Samoan Public Service, and shall have all the powers necessary for the proper performance of the duties and functions conferred or imposed upon the Public Service Commissioner by this Act or any other enactment."

The office of Public Service Commissioner is accordingly an office created by statute and his powers are defined by statute. He is entitled to do all that is necessary to control the Western Samoan Public Service and to maintain its efficiency, but in doing so he may not exercise any powers other than those which are conferred upon him by statute. The general duty imposed upon the Public Service Commissioner by the Act is set out in section 10(1) which reads as follows:

"The Public Service Commissioner shall from time to time take such action as he thinks necessary to ensure a proper standard of efficiency in the Western Samoan Public Service."

It is to be observed that this subsection does not merely confer a power on the Public Service Commissioner but imposed a definite duty. Unless there were any other statutory provision which expressly negatived his power to do so then in my opinion this section would confer upon him full authority to enter into such a contract with a person on the latter's appointment to the public service, as would in the opinion of the Public Service Commissioner be necessary to ensure a proper standard of efficiency in the service.

It is I think abundantly clear that the efficiency of the service would be promoted if the Public Service Commissioner had power to make contracts for a specified term, and this seems to have been recognised by the authorities. The advertisement calling for applications followed what the Court was informed is the usual practice in offering a three-year term in the first instance. The Official Circular issued by the Government of Western Samoa through the Department of Island Territories in Wellington and sent to the public servant upon his first appointment refers to the fact that appointments are for periods of three years terminable by either party at the conclusion of each such period. In the Regulations made under the Act, the fact that appointments are normally for periods of three years may be inferred from several of the regulations themselves, as for example Regulations 49(1) and 62(3).

Under section 33 of the Act power was given to make regulations for the general control of the Western Samoan Public Service, and without limiting the general power it was provided that regulations might be made for the purposes of (inter alia) facilitating and securing the better selection of suitable persons for appointment. When the only persons suitable for particular posts in the service have to be brought from overseas, power to enter into contracts of employment for a fixed term would certainly facilitate the better selection of suitable persons.

Consideration, however, must be given to the effect of sections 13 to 17 of the Act, read in conjunction with section 2. Section 13 subsections (1) and (3) provide:

"(1) No person shall be appointed to the Western Samoan Public Service otherwise than in accordance with this Act.

(3) Subject to the provisions of this Act, the Public Service Commissioner may appoint any person to, and employ the person in, the Western Samoan Public Service, in a permanent capacity, or on probation for a specified period, or in a temporary capacity."

Subsection (3) is not mandatory in that it does not conclude with the phrase "and not otherwise" or words to that effect; and if it had stood by itself I should have been inclined to hold that the Public Service Commissioner had power under section 10(1) to enter a contract for a specified term as it is contended he has done in this case. But when the effect of section 2 is considered together with sections 14 to 17 of the Act it seems clear that the powers of the Public Service Commissioner in this respect are greatly restricted.

Section 2 defines "officer" in the following terms:

"'Officer' means a person, other than a probationer or a temporary employee who is employed in the Western Samoan Public Service."

Under section 13(1), no person may be appointed to the Western Samoan Public Service otherwise than in accordance with the Act. Under section 2 such a person must fall within one of the three categories: officer, probationer or temporary employee. There are no other possibilities. If a person employed in the Western Samoan Public Service is not either a probationer or a temporary employee then by the definition of "officer" in section 2 he must be an officer.

Under section 14 every officer appointed by the Public Service Commissioner shall be deemed to be a three-monthly servant and shall be removable by the Public Service Commissioner at any time after three moths' notice. It is common ground that three months' notice has been given to the plaintiff in this case.

Under section 16(3), any person employed on probation in the Western Samoan Public Service may be dismissed by the Public Service Commissioner at any time. Under section 17(2), a temporary employee may be similarly dismissed at any time without notice.

In my opinion, it is not competent for the Public Service Commissioner to enter into of employment with any person or to appoint him to any position in the Public Service of Western Samoa upon terms which are inconsistent with the provisions of the Act. The Public Service Commissioner as has been pointed out holds an office created by statute and his powers are limited to those granted to him by statute. He has very wide powers under section 10(1) to take such steps as he considers necessary to ensure the efficiency of the public service, but in doing so he must respect the limitations, which are expressly imposed upon him by the Act. Except for these limitations his action in offering a three-year contract to plaintiff would in my opinion have been both prudent and proper. But a contract for a term of three years' service is in my opinion a direct contravention of the statutory provisions which place every member of the Western Samoan Public Service into one of the three categories, officer, probationer or temporary employee and expressly lay down that the employment of any such person may be terminated by the Public Service Commissioner, either immediately in the case of a probationer or a temporary employee or upon giving three months' notice in the case of an officer. As the law stands at present in my opinion therefore no person can be engaged by the Public Service Commissioner for the Western Samoan Public Service except upon the condition that his employment is terminable at any time either immediately or upon three months' notice.

There is a further statutory provision relating to contracts of employment with a Government or a public body, which has already received the attention of the Court of Appeal in New Zealand and requires consideration in the present case. This is section 25 of the Acts Interpretation Act 1924, which is in force in Western Samoa. This section reads:

"In every Act unless the context otherwise requires:

(d) Words authorising the appointment of any public officer or functionary, or any deputy, include the power to remove or suspend him, or reappoint or reinstate him, or appoint another in his stead, in the discretion of the authority in whom the power of appointment is vested."

The section was discussed by the Court of Appeal in Mansfield v Blenheim Borough Council [1923] N.Z.L.R. 842 (C.A.). In that case, plaintiff had been appointed by the Borough Council to the position of Town Clerk and Borough Engineer with a minimum engagement of 2 years. He was subsequently dismissed "forthwith and immediately". He brought an action for damages for wrongful dismissal. The claim did not succeed. In the Court of Appeal, Hoskin J. after quoting the section, the words underlined above appearing in italics in his judgment, says at p.851:

"And so by our Interpretation Act it is declared that public officers may be removed at discretion unless the context of the statute otherwise requires. To say that they hold officer during the pleasure of the appointing authority is but to state this power in another form. In my opinion, it is not competent for a Council by contract to renounce this power or bind itself not to exercise it or to otherwise extrammel [sic] its discretion with regard to the exercise of the same. The resolution on which the plaintiff relies purported to give him an engagement for two years. This was, in effect, a resolution purporting to bind the Borough Council not to exercise its power to remove at discretion during that period. In that respect the resolution was, in my opinion, ultra vires the Council."

The section quoted in the judgment of Hoskin J. is section 24(d) of the Acts Interpretation Act 1908. That section is identical in wording with section 25(f) of the 1924 Act which, as had been stated, is in force in Western Samoa.

The person holding office as Charge Radiographer at the Government Hospital, Apia, would I think come within the category of "public officer or functionary". If that is so, then he may be removed at the discretion of the power appointing him, that is to say in this case the Public Service Commissioner. Mansfield's case (supra) is authority for the proposition that under the statutory provisions quoted it is not competent for the appointing authority - here the Public Service Commissioner - to contract to renounce the power of removal or bind himself not to exercise it.

In the result I am constrained to hold that the appointment of plaintiff to the Western Samoa Public Service was made subject to the statutory condition that although a term of three years had been mentioned in the advertisement the engagement was none the less terminable either at will or upon three months' notice depending upon the status of plaintiff in the service.

Mr Metcalfe in the alternative contended on the authority of Candler v Crane Christment & Co. [1951] 1 A.E.R. and Noction v Ashburton there cited that the Public Service Commissioner was under a duty to be careful in his negotiations with the plaintiff that he had failed in his duty of care by promising three-year term when he had no power to do so, and that his failure in this duty of care was negligence for which an action would lie. But this is not an action against the Public Service Commissioner. The Attorney-General, quite properly in my view, concerned that the action of the Public Service Commissioner in specifying a three-year term was ultra vires and that he had exceeded his statutory powers. This fact however, does not give the plaintiff a right of action against the Government of Western Samoa: Dunn v Macdonald (1897) 66 L.J.Q.B.209, Lucas v Lucas [1943] 2 All E.R. 110 and Rodwell v Thomas [1944] 1 All E.R. 700.

In Ministry of Agriculture and Fisheries v Matthews [1949] 2 All E.R. 724 the Minister of Agriculture and Fisheries purporting to act under powers conferred on him by the Defence Regulations granted to Matthews what between private individuals would have been construed as a lease or tenancy agreement. It was held that the Minister had under the Regulations no power to grant a lease or a tenancy, and Matthews could not maintain against the Ministry an action based on a breach of his agreement with the Minister. Cassels J concludes his judgment by saying, at p.730:

"I think the answer must again prevail that an ultra vires act is no act at all if done by a statutory body whose powers are limited by the statute or statutes which brought them into existence and subsequently regulate their actions."

With respect, I think that this is an accurate statement of the law and is applicable to the present case.

For these reasons, I am of the opinion that the plaintiff's action for damages cannot succeed. I reach this conclusion with regret. The Public Service do not take into account one very important consideration arising from the problem of officers coming to Samoa from overseas. It seems certain that Western Samoa will for sometime in future, as it has done in the past, have to rely for officers of particular training and experience on men who have received that training and experience overseas. There is little likelihood that any such officer would accept employment in Western Samoa unless he had some security of tenure. In ordinary cases, he has to uproot his domestic establishment, dispose o his house and sell or store much of his furniture, and in many instances cut himself adrift from his associations both professional and private in his own country. The fact that he would require security of tenure for at least three years is fully recognised by the authorities, including the Public Service Commissioner and the Department of Island Territories, as is shown by the advertisement offering three years’ appointment when applications are invited. If the view that I take of the law is correct and any such public servant is liable to dismissal at any time after his arrival in the Territory, then it would seem only proper that he should be so informed, in words admitting of no possible misconstructions, when the offer of employment is made to him. It is not reasonable, as was suggested during the argument, that the mere act of handing to an applicant a copy of the Public Service Regulations should be deemed sufficient to draw his attention to the statute under which those regulations were made, and to cause him to ascertain from that statute - if he were capable of doing without the assistance of a solicitor, which is very doubtful - that notwithstanding the advertisement of the Public Service Commissioner offering a three-year term he would be liable to have his employment terminated at any time. The natural result of such a straightforward notification to the applicant would no doubt be that his application would be withdrawn. If I am not mistaken in my opinion as to the law, the only method of overcoming the difficulty would appear to be an amendment to the Samoa Amendment Act 1949 to permit the Public Service Commissioner in certain specified circumstances to enter into a contract of employment with a public servant for a term of years. This, however, is a matter for the Legislature and not for the Court. The Court can do no more than have its decision on its view of the law as it stands.

It has always been acknowledged that certain moneys would be payable to plaintiff upon the termination of his employment. Since the date of the hearing, I am informed that the sum of ₤636.18.10 has been so paid by the Government. This sum represents salary up to the date of expiration of the three months' notice, plus allowances by way of furlough, inducement bonus and re-establishment and also fares by sea and freight to New Zealand for plaintiff and his family. From the information at my disposal the amounts appear to be correct. I will however reserve leave to plaintiff to apply if any question is raised as to the adequacy of the payment by way of salary and allowances. Subject to this judgment on the claim will be entered for defendant.

In all the circumstances, I feel that this is not a case in which plaintiff should be called upon to pay the defendant's costs. Accordingly, there will be no order as to costs.

Marsack C.J.