Governor of Pitcairn v Sutton

• Jurisdiction: New Zealand
• Judgment Date: 30 November 1994
• Date: 30 November 1994
• Court: Court of Appeal

New Zealand, Court of Appeal.

(Cooke P, Richardson, Casey, Hardie Boys and Gault JJ)

Governor of Pitcairn and Associated Islands

and

Sutton

State immunity Jurisdictional immunity Employment Action challenging termination of employment with Governor of Pitcairn Island British colony Whether activities of office of Governor of Pitcairn Island constitute sovereign functions New Zealand Employment Contracts Act 1991 Whether statute can be interpreted to exclude application of sovereign immunity in absence of express clause The law of New Zealand

Summary: The facts:The respondent, a New Zealand national, had been employed as a typist/clerk in the Auckland office of the appellant, the Governor of the Pitcairn, Henderson, Ducie and Oeno Islands (the Governor of Pitcairn). The office at which the respondent was employed was within the British Consulate-General and the British High Commissioner in New Zealand held the post of Governor of Pitcairn. The respondent's employment related exclusively to Pitcairn. The respondent was summarily dismissed from her employment and brought proceedings under the Employment Contracts Act 1991. The appellant contested the jurisdiction of the Employment Court on the ground that he was entitled to sovereign immunity. The Employment Court rejected this claim of immunity, finding, inter alia, that an inquiry into the dismissal of an employee would not offend the dignity of the employer and was unlikely to interfere with affairs of State. The Employment Court was also of the opinion that the New Zealand Parliament, by not expressly excluding employers entitled to sovereign immunity from the ambit of the Employment Contracts Act, had intended the Act to apply to all employers of whatever nature. The Governor of Pitcairn appealed against the decision of the Employment Court.

Held:The appeal was allowed. The Governor was entitled to sovereign immunity.

(1) Under the common law doctrine of sovereign immunity an independent sovereign State could not be impleaded in the courts of another country against its will and without its consent. The restrictive theory of sovereign immunity had increasingly limited the scope of sovereign immunity in respect of commercial activities, and now the test to be applied was whether the relevant act giving rise to the proceedings was of a private law character or came within the sphere of sovereign activities (pp. 50911 and 51619).

(2) In the absence of legislation, this question was to be determined by reference to common law. There were no universally accepted international law principles regulating the position of employees of foreign States. However, other jurisdictions had consistently granted foreign States immunity from claims brought by those employed at diplomatic or consular posts. The focus was on the particular contractual relationship, the responsibilities of the job in question and its termination (pp. 513, 5202 and 5234).

(3) Pitcairn was a British colony and its Governor administered the Government of Pitcairn on behalf of the Queen. The respondent was thus in the employment of the British Crown. The office of the Governor of Pitcairn did not have a commercial function but was solely engaged in the performance of sovereign functions and the respondent's employment was performed in administrative and clerical support of those sovereign functions. It could not, therefore, be argued that the employment and its termination were insufficiently associated with the exercise of governmental authority to attract immunity. To expose the British Grown to litigation in the New Zealand courts would risk intruding on the performance of sovereign functions (pp. 51314 and 5223).

(4) A general statute was not to be interpreted as contrary to international law on such matters as sovereign immunity. A positive indication by Parliament was required to override the presumption that sovereign immunity limited the operation of the Employment Contracts Act (pp. 513, 519 and 5245).

The following is the text of the judgments delivered in the Court of Appeal:

Cooke P: In October 1991 Mrs Sutton became employed as a typist/clerk in the Auckland office of the Governor of Pitcairn, Henderson, Ducie and Oeno Islands. The office is within that of the British Consulate-General in Auckland, an arrangement reflecting the fact that the British High Commissioner in New Zealand also holds the separate office of Governor of Pitcairn and the other three (uninhabited) islands. Pitcairn had a population of 56 in 1991. Mrs Sutton is a New Zealand citizen, recruited in Auckland. She claims that on 11 February 1991 she was summarily dismissed on the given ground that she was out of her office too much; she also alleges that unreasonable and trifling demands, relating to filing and reporting, were made upon her during her employment. These are untested allegations. The question before this Court is one of jurisdiction.

She brought personal grievance proceedings under the Employment Contracts Act 1991 of New Zealand. A protest to the jurisdiction was filed, on the ground that the Governor of Pitcairn is entitled to claim sovereign immunity. The proceedings were removed into the Employment Court, where the preliminary question of jurisdiction was determined by Judge Finnigan in a decision delivered on 13 December 1993 [reported at [1993] 2 ERNZ 1008]. The present appeal is from that decision.

Sovereign immunity is a doctrine applying to sovereign States or, as it is sometimes expressed, independent sovereign States. In general at common law, reflecting international law, such a State will not be impleaded in the courts of another country (in this instance New Zealand) against its will and without its consent; the exercise of jurisdiction is seen as incompatible with the dignity and independence of the foreign State. Formerly the common law immunity was more comprehensive than it now is, but a line of cases decided in England from 1975, recognizing that international law had changed, held that the common law had changed correspondingly by adopting a restrictive theory. The leading exposition of the modern principles is generally taken to be the speech of Lord Wilberforce in Playa Larga (owners of cargo lately laden on board) v. I Congreso del Partido (owners)ELRINTL [1983] AC 244.[1] The difficulties that can arise are illustrated by the circumstance that Lord Wilberforce (with Lord Edmund-Davies) was in a minority as to the result of applying the principles to the facts in one of the two appeals there under consideration. The distinction falling to be made is described as being between jure gestionis and jure imperii, and Lord Wilberforce put the test as follows at p. 267:

A recent example of the vitality of the doctrine is Littrell v. United States of America (No 2)UNKINTL [1994] 4 All ER 203,[3] where the Court of Appeal held that the United States Government was immune from suit by a member of their military forces who claimed that, while stationed in England, he had been negligently treated in one of their base hospitals. That case, like I Congreso itself, was decided at common law. Neither case fell within the operation of the State Immunity Act 1978 of the United Kingdom, which Act is one of a number in various countries putting the immunity on a statutory basis and defining exceptions to it. These Acts vary in pattern and details. There is no Act of that kind in New Zealand, and neither the Diplomatic Privileges and Immunities Act 1968 nor the Consular Privileges and Immunities Act 1971 has been argued to be material to this case. The present case therefore falls to be decided by New Zealand common law.

Judge Finnigan decided it in favour of jurisdiction, at least at this stage. He said that when the full facts of the employment contract, its

making, its terms [strangely, he was not supplied with the written terms, nor did he request them] and its alleged breach were traversed in evidence, a different result might follow. Pointing out that New Zealand Government contracts with staff are subject to the Employment Contracts Act, he had difficulty in seeing that an inquiry into whether the dismissal was open to a reasonable and fair-minded employer could offend any dignity possessed by or deference owed to any employer. He doubted whether delicate affairs of State would be traversed. He was not prepared at this stage to apply Sengupta v. Republic of IndiaICRINTL [1983] ICR 221,[4] where the Employment Appeal Tribunal in England held that immunity barred a complaint of unfair dismissal by an Indian national employed as a clerk at the Indian High Commission in London. Judge Finnigan added that he could certainly find nothing in our employment code to indicate that Parliament intended to exclude from it any employer at all.

From the start this case has been confused by a series of misunderstandings and mistakes, some of which remained at the hearing in this Court. They need to be cleared away to expose the real issue. The following numbered paragraphs cover what I understand to be the position.

1. Before the Employment Court it was conceded for the applicant, Mrs Sutton, that Pitcairn and its associated islands (hereinafter collectively called Pitcairn) is a sovereign State. This is not so. The constitutional structure is stated succinctly in 6 Halsbury's Laws of England (4th edn, Reissue), para. 1068, and is amplified in documents placed before us. Pitcairn is a British colony, and as such a British dependent territory within the Commonwealth. It is subject to the British Settlements Acts 1887 and 1945, under which the present constitution was made by the Pitcairn Order 1970 (SI 1970/1434). The Order provides for the appointment of a governor to hold office during Her Majesty's pleasure. Subject to disallowance by Her Majesty through a secretary of state (and hence, in effect, British Government control), he has power to make laws for the peace, order and good...