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p; A plis ood standinanding' orb> or more properly a Certificate ofte of Regi Registratstration as a licensed physician in the Phillipines dated <.94p class=MsoN=MsoNormalormal styl style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
P> &nbs; &nbssp; &nbssp; &nbp; &nbs; &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; ;&nbnnbsp;&nbsbb;&nbbsp;&&np;& &nbbsp;&&nsp;;&nsp;
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&bsp; p&nbssp; &nbp; &nsp; &bsp;;nbsp; n> Fiji Ml Cous letter tter dateddated 5.5.99 rejecting the applicanlicant's at's applicpplicationation for full registration under Part II of the Medical and Dental Practitioners Act;
&nbsP14 ;&nspp;&nssp;&nbs; &nbp; p;&nssp; p; &nbp; &nbp; ;&nbpp; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& &nbbsp; &nbp;&nbbsp;&&sp;& p;
& &nsp; p;&nbbsp;&& &nbbsp; &nbp; &nbp; &nbssp; &nnbp;&nbs;&nbs; &nbp; &nsp;&&bsp; nbsp;  &nnbsp; p;&nbbsp;&
nbsp; &nnbp;&&nbp;;&nb p;&nbb;&nbbsp;  &nbs;&nbbp; &nsp;  &nbssp; &nsp;&&bsp;&bsp;   &nbssp; & Asp;dedended
Noticeotice of M12.5.99 and
ass=MsoNoMsoNormal style="margin-left: 36.0pt; marg margin-toin-top: 1;p: 1; marg margin-boin-bottom: 1">
P1527.5.99 read into the Court re &an"> nbsp;
During the course of his sworn testimony the applicant fied on oath that he had 'never been guilty of misconisconduct or breached the terms of his employment contract'; and had 'never been informed of unethical conduct by Dr. Nainoca (the Superintendent of Labasa Hospital), P.S.C. or his patients' other than a complaint of sexual misconduct for which he was charged in the Labasa Magistrate Court and which he had denied and was eventually acquitted after a trial (Ex.P4).
He testified that prior to the disclosures in Bainimarama's answering affidavit (Ex.P2) he had not beot been informed of any unethical misconduct nor had he been interviewed by Dr. Nainoca in respect of any such allegations.
This latter sworn evidence contrasts quite dramatically with the followitry (at p.4) of Dr. Nain Nainoca's first report which reads:
'INTERVIEWS WITH DR. AND MRS. PADUA
The couple denies all wroing and were very defensive about all allegations made against them. In fact they have acce accusations of
their own. In fairness I have included their own realy (sic) to the accusations made against them.'
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Quite plainly, if the entry is accepted as acc and true then there can be little doubt that the applicanticant was not only informed
of the substance of the allegations made against him, but in addition, he was given an opportunity to explain and/or respond to them.
Unfortunately 'their own reply to the accusations' although apparently included in the report to P.S.C. was not available to the Court.
In his affid(Ex.P15) read into the record the applicant had also categorically stated that apart from trom the contents of P.S.C's termination letter 'no reasons ... was given nor (was he appraised) of the allegations made against me'. He vehemently denied ever being 'counselled and warned' in respect of the allegations made in the two (2) reports (Ex.P10) prepared by Dr. Nainoca.
The applicant also deposed that in his case:
p class=MsoNormal stal style="margin: 1 36.0pt"> 'The Public Service Commission made no inquiry at at acted on allegations made by the Medical Superintendent oent of Labasa Hospital
Dr. E. Nainoca without giving me any opportunity to defend or contradict these allegations, which is a denial of natural justice.
The Commissioner (sic) acted irrationally in bad faith and in breach of contract of my employment.'
At the end of the applicant's evidence-in-chief and much to the Court's surprise, State Counsel declined to cross-examine the applicant
on his evidence merely adding that the State relied entirely up on the reports of Dr. Nainoca (Ex.P10) annexed to the affidavit of Meli Bainimarama (Ex.P2). Thereafter counsel for the applicant closed his case.
It is a salutary rule ins-examination practice that says:
'... if, on a crucial part of the case,(1932) 23 Cr. App. R. 207]
The basis of the rule as was pointed out in R. v. Felon and Neal (1980) 71 Cr. App. R. 307 at p.313:
'is to give a witness of whom it is going to be said or suggested that he is not telling the truth an opportunity of explaining and
if necessary of advancing further facts in confirmation of the evidence which he has given.'
Whatsmore the learned author ofu>Cross on Evidence (6th edn.) at p.277 states that 'failure ture to (cross-examine a witness) may be held to imply acceptance of the evidence-in-chief'.
Be that as it may and returning to the course of the trihat happened next can only be described as bizarre. On bein being called upon
to present the respondent's evidence, State Counsel rose and declared:
'I rely entirely on the affidavit of Meli Bainimarama of 11.7.96 (Ex.P2) annexing Dr. Nainoca's reports (Ex.P10) in support of the respondent's case. Dr. Nainoca is available in court today to be cross-examined as to his reports. I don't propose
to call Dr. Nainoca but counsel for the applicant may do so if he wishes to cross-examine him.'
Meli Bainimarama the deponent of the the affidavit was not available however and was not similarly tendered for cross-examination.
Counsel for pplicant, perhaps not surprisingly, politely declined the invitation saying:
'There is no purpose in cross-examining Dr. Nainoca since he no affidavit and has not sworn to his reports which contaiontain hearsay
matters dating back to 1995.'
Despite the 'wa' implicit in counsel's utterance, State Counsel for reasons that continues to baff baffle the Court, closed the respondent's case.
Closing addresses were than invited and, as if to reinforce the fact, State Counsel claimed the right of reply 'since I have called no evidence'. In his address State Counsel pointed out that the applicant had an opportunity to challenge the reports (Ex.P10) but had not done
so and these were therefore available as evidence for the Court to consider.
Counsel relied onunderstanding of the judgment of the Court of Appeal (op.cit) as to the limitlimited ambit of the present review and on the judgment of this Court in State v. P.S.C. ex-parte Michael Raman Judicial Review No. 13 of 1994 where the Court observed that there was no requirement in the P.S.C. (Constitution) Regulations 1990 for an oral hearing before P.S.C.
Counsel accepted however that the applicant's employment was terminated pursuant to of his his contract of employment (Ex.P11) the latter of which expressly requires P.S.C. to be satisfied of misconduct 'after reasonable inquiries'.
Counsel for the applicant in his closing address highlighted the fact the applicant had given swon sworn evidence which had not been
tested under cross-examination. He also pointed out that Meli Bainimara's affidavit (Ex.P2) to which the damaging reports had been annexed nowhere verified on oath either the truth or accuracy of the contents
of the reports.
Needless to say the author of the reports namely, Dr. E. Nainoca, being the best and persole person who could verifverify their contents, had neither given oral evidence or deposed the affidavit
to which the reports were annexed. The reports (Ex.P10) therefore remain unverified and indeed untested as to the truth and accuracy
of their contents.
In counsel's view even if the reports were properly available to be considered by the Court in these proceedings, they contained generalised
hearsay allegations of unnamed complainants and, not being verified on oath, can only be of marginal assistance to the Court when
compared with the sworn denials of the applicant which remains untested in cross-examination and must therefore be taken to have
been accepted in its entirety by the respondents.
Indeed counsel points out that the applicant's sworn denials are suppornd reinforced by P.S.C'sS.C's view as deposed by its Secretary, to the effect that: '(P.S.C.) was under no duty to provide details according to Clause 8(b) and 10 of the Contract'.
Be that as it may State Counsel in reply poinut that both reports at pages 4 & 1 respectivelyively, clearly indicate that the applicant was given an opportunity to respond to the various allegations made against
him and counsel urged the Court to accept these entries as accurately reflecting the procedure adopted by Dr. Nainoca which counsel says plainly accords with the requirements of natural justice that 'a man should not be condemned unheard'.
As to the requirement in Clause 10 of the applicant's employment act that P.S.C. cond conduct 'reasonable inquiries' before summarily dismissing the applicant, counsel states that P.S.C. isn't actually required and can't be expected itself, to conduct the inquiries and P.S.C. is entitled to rely on the inquiries conducted by the applicant's immediate supervisor namely Dr. Nainoca, as detailed in his reports (Ex.P10).
It is trite that the requirements of natural justice depends upon the subject-matter under consideration and the circumstances of
the particular case.
As was said by Lord Parker C.J. in Re HK (an infant) (1967) 2 Q.B. 617:
'Good administratnd an honest or bona fide decision must, as it seems to me, require not merely impartialityality, nor merely bringing
one's mind to bear on the problem, but acting fairly; to the limited extent that the circumstances of any particular case allow,
and within the legislative framework under which the administrator is working only to that limited extent do the so-called rules
of natural justice apply, which in a case such as this is merely a duty to act fairly.'
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> I accept that P.S.C. need not actuallyuct the 'inquiries' contemplated under b>Clause 10 of the applicant's employment contract, but equally, if P.S.C. is minded to rely upon the recommendations, and findings of a delegated inquiry (for want of a better expression) as the basis for
termination or summary dismissal, then in my opinion, fairness demands that the officer concerned not only be appraised of the substance
of the inquiry report, its findings and recommendations, but also, he should be given an opportunity either to defend or explain
himself or to seek to dissuade P.S.C. from either relying on the report or from invoking the termination clause.
In this case State Counsel accepts that the applicant was dismissed by P.Sb> on the basis of the adve adverse reports (Ex.P10) furnished by his immediate Superior, Dr. E. Nainoca and in pursuance of Clause 10.
Whatsmore it is common ground that P.S.C. did not itself conduct any 'inquiries' nor was the applicant invited or heard by P.S.C. at any time before his employment contract was terminated.
Given the above and tture of the evidence before the Court, in particular, the untested oral testimony of the aphe applicant and the
unverified adverse reports against him, I have no hesitation in preferring the sworn evidence of the applicant.
Accordingly I am satisfied in the wordthe Court of Appeal (op.cit):
'... that the Commission was not acting in good faith and in the public interest when it decided to ese its discretion to invokenvoke
the termination clause in the (applicants) contract (without according him natural justice).'
Certiorari shall issue to b to bring up and quash the decision of P.S.C. terminating the applicant's employment as relayed in its letter of 13th March 1996 (Ex.P8).
The applicant also seeks unspecified special, generd exemplary damages and costs on an indemnity basis.span>
In this regard it is common ground that at the date of his termination the ured portion of the applicanlicant's employment contract
was approximately 12 months. Since then the contract has expired through effluxion of time and it might be said that the passage of time has rendered any possibility
of reinstatement a 'fait accompli'.
I am satisfied that no basis exists either in law or fact to support the grant of special and exemplary damages or costs on an indemnity
basis. Equally I am satisfied that the applicant is entitled to an award of general damages. There can be no argument that had the
applicant's employment not been terminated, he would have continued to serve out the remainder of his contract and would have earned
salary and gratuity commensurate with his position as Chief Medical Officer at the Labasa Hospital on an annual gross salary of $33,461 as at the 18th of November 1994 (Ex.P.7). The possibility that his contract would have been extended cannot be discounted either.
Instead, the applicant testified that since his dismissal he hen unemployed and has had to sell off his car, some househousehold items
and disposed of his jewellery in order to survive and even borrowed money. Needless to say upon his termination the applicant's name
was removed from the register of Medical Practitioners thereby rendering him incapable of practising his profession even in a private capacity.
In all the circumstances and doin best I can with the available evidence I award the applicant general damages in the sum ofum of
$30,000. The applicant is also entitled to an order for costs which are fixed at $1,500 together with all reasonable disbursements in relation to the hearing in this Court including the travel and accommodation expenses
of counsel.
D.V. Fatiakan>
JUDGE
At Suva,
11th June, 1999.
Hbj0009j.96s
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