| Fiji Islands - The State v Public Service Commission; Ex parte Mario Nagales Padua - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
At Labasa
Civil Jurisdiction
JUDICIAL REVIEW NO. 0009 OF 1996
The State
v.
The Public Service Commission
ex-parte Mario Nagales Padua
Mr. A. Katonivualiku for the Applicant
Mr. D. Singh for the Respondent
JUDGMENT
This application for judicial review has a history which warrants a brief reference in order to explain the seemingly long delay it
has taken to bring this matter to a final conclusion.
The chronology of proceedings spanning the past three (3) years may be briefly summarised as follows:
(1) By letter dated 13th March 1996 the Public Service Commission (PSC) terminated the applicant's employment with the Ministry of Health;
(2) On 28th May 1996 the applicant applied for leave to issue judicial review proceedings against the PSC's decision in (1) above;
(3) After preliminary affidavits were filed the application for leave was heard on 14th November 1996;
(4) On 6th May 1997 in a lengthy comprehensive judgment Pain J. refused the applicant leave to issue judicial review;
(5) On 9th June 1997 the applicant sought leave to appeal to the Fiji Court of Appeal against the judgment of Pain J. in (4) above;
(6) On 24th October 1997 Pain J. refused leave to appeal;
(7) On 7th May 1998 a single judge of the Court of Appeal heard and refused a further application for leave to appeal;
(8) On 12th May 1998 the applicant sought leave of the Court of Appeal to appeal against the judgment of Pain J. at (4) above;
(9) On 26th February 1999 the Court of Appeal granted the applicant leave to appeal against the judgment of Pain J., allowed the appeal, and granted the applicant leave to apply for judicial review;
(10) Pursuant to the leave granted by the Court of Appeal the applicant filed a fresh Motion for Judicial Review on the 26th of March 1999 repeating a number of old grounds raised in its application at (2) above and adding a few new grounds and reliefs.
This latter Motion immediately gave rise to differences between counsels for the parties with State Counsel claiming that the applicant was limited
and confined to the grounds set out in the original application in (1) above, and applicant's counsel contending that the leave granted
by the Fiji Court of Appeal was not so limited and even if it were, nevertheless the applicant was entitled with the Court's leave to add and argue further grounds.
In this regard it is noteworthy that the Fiji Court of Appeal in its judgment granting the applicant leave to apply for judicial review, categorically rejected the applicability of the provisions
of the Public Service Commission (Constitution) Regulation 1990 and the Medical and Dental Practitioner's Act (Cap.255) to the applicants case, the Court of Appeal also said at p.6:
"Nor can a plea based on a failure to accord natural justice by giving the (applicant) the opportunity to answer the complaints succeed, in view of the unfettered power to terminate given in Clause 8(b), or of the right
of dismissal for misconduct after 'reasonable enquiries' in Cl.10 (of the applicant's employment contract)."
The above findings of the Court of Appeal plainly disposes of a substantial number of the 'grounds' advanced by the applicant in his original and even amended motion seeking judicial review.
Furthermore the Court of Appeal agreed with Pain J's conclusion:
'that the (applicant's) only hope of succeeding in judicial review proceedings is on the narrow ground that the Commission was not acting in good faith and
in the public interest when it decided to exercise its discretion to invoke the termination clause in the contract ... Essentially
the (applicant) relies on two matters - namely, the Commission's reliance on false allegations and reports inducing the termination of (the applicant's) employment; and breach of natural justice in not giving him the opportunity to answer them'.
Lastly the Court of Appeal in granting leave to apply for judicial review said at p.7 of its judgment:
'... we consider that the applicant could make out an arguable case that the Commission was not acting in good faith in a full hearing (by the Court) of his allegations about error and bias by the hospital authorities, and in the light of its failure to hear his explanations, or
to make independent enquiries into the complaints against him.'
Having considered the matter I was satisfied that State Counsel was correct in his objection and an order was made that '(the) applicant file and serve amended grounds consistent with the F.C.A. judgment and the original application'. On 12th May 1999 a purported amended motion was filed by the applicant. Thereafter the substantive application, by consent of the parties was fixed
for 'a full hearing' in the Labasa High Court on 27th May 1999.
On the 27th May 1999 Counsel for the applicant, with the agreement of State Counsel, called the applicant into the witness box and read into the record
an affidavit earlier deposed by him. The applicant also produced various exhibits marked 'P1' to 'P15' as follows:
Exhibit No. Description
P1 - primary affidavit of the applicant
dated 4.6.96;
P2 - answering affidavit of Meli
Bainimarama the Secretary of the P.S.C. dated 10.7.96;
P3 - applicant's original affidavit
in reply to P2 dated 1.8.96;
P4 - Judgment in Labasa Magistrate Court Criminal Case No. 314/96 dated 13.9.97;
P5 - Original Motion for leave to apply for judicial review dated 4.6.96;
P6 - Original Statement in Support of P5 dated 4.6.96;
P7 - Original pay slip of applicant dated 18.11.94;
P8 - P.S.C. letter of termination dated 13.3.96;
P9 - Judgment of Pain J. refusing leave for judicial review dated 6.5.97;
P10 - Two (2) Reports of Dr. Nainoca the Medical Superintendent Labasa Hospital dated 2.3.95 and 20.11.95 respectively;
P11 - Applicant's Agreement of Service with P.S.C. with effect from 22.3.94;
P12 - Applicant's letter of 'good standing' or more properly a Certificate of Registration as a licensed physician in the Phillipines dated 1.3.94;
P13 - Fiji Medical Council's letter dated 5.5.99 rejecting the applicant's application for full registration under Part II of the Medical and Dental Practitioners Act;
P14 - Amended
Notice of Motion for judicial review dated 12.5.99; and
P15 - Applicant's affidavit dated 27.5.99 read into the Court record.
During the course of his sworn testimony the applicant testified on oath that he had 'never been guilty of misconduct 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 Meli Bainimarama's answering affidavit (Ex.P2) he had not 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 following entry (at p.4) of Dr. Nainoca's first report which reads:
'INTERVIEWS WITH DR. AND MRS. PADUA
The couple denies all wrong doing and were very defensive about all allegations made against them. In fact they have accusations of
their own. In fairness I have included their own realy (sic) to the accusations made against them.'
Quite plainly, if the entry is accepted as accurate and true then there can be little doubt that the applicant 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 affidavit (Ex.P15) read into the record the applicant had also categorically stated that apart from 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:
'The Public Service Commission made no inquiry at all. It acted on allegations made by the Medical Superintendent 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 in cross-examination practice that says:
'... if, on a crucial part of the case, (counsel) intend to ask (the Court) to disbelieve the evidence of a witness, it is right and proper that that witness should be challenged in the witness-box or, at any
rate, that it should be made plain, while the witness is in the box, that his evidence is not accepted.' [per Hewart L.C.J. in R. v. Hart (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 of Cross on Evidence (6th edn.) at p.277 states that 'failure 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 trial, what happened next can only be described as bizarre. On 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 affidavit was not available however and was not similarly tendered for cross-examination.
Counsel for the applicant, perhaps not surprisingly, politely declined the invitation saying:
'There is no purpose in cross-examining Dr. Nainoca since he gave no affidavit and has not sworn to his reports which contain hearsay
matters dating back to 1995.'
Despite the 'warning' implicit in counsel's utterance, State Counsel for reasons that continues to 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 on his understanding of the judgment of the Court of Appeal (op.cit) as to the limited 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 Clauses 8 & 10 of 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 that the applicant had given 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 perhaps sole person who could verify 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 supported and reinforced by P.S.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 pointed out that both reports at pages 4 & 1 respectively, 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 contract that P.S.C. 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 administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, 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.'
I accept that P.S.C. need not actually conduct the 'inquiries' contemplated under 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.S.C. on the basis of the 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 the nature of the evidence before the Court, in particular, the untested oral testimony of the 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 words of the Court of Appeal (op.cit):
'... that the Commission was not acting in good faith and in the public interest when it decided to exercise its discretion to invoke
the termination clause in the (applicants) contract (without according him natural justice).'
Certiorari shall issue 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, general and exemplary damages and costs on an indemnity basis.
In this regard it is common ground that at the date of his termination the unexpired portion of the applicant'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 has been unemployed and has had to sell off his car, some household 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 doing the best I can with the available evidence I award the applicant general damages in the sum 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. Fatiaki
JUDGE
At Suva,
11th June, 1999.
Hbj0009j.96s
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