Permanent Secretary for the Public Service Commission v Matea [1999] FJSC 7; CBV0009U.1998S (10 March 1999)

Fiji Islands - Permanent Secretary for the Public Service Commission v Matea - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

AT SUVA

ON APPEAL FROM THE COURT OF APPEAL, FIJI

CIVIL APPEAL NO. CBV0009 OF 1998S
(Court of Appeal, Fiji, Civil Action No. ABU0016/98S)

BET

:

THE PERMANENT SECRETARY FOR PUBLIC
SERVICE COMMISSION
-AND-
THE PERMANENT SECRETARY FOR EDUCATION,
WOMEN AND CULTURE
Appellants

AND:

LEPANI MATEA
Respondent

Coram: t. Hon. Lord Lord Cooke of Thorndon
The Hon. Sir Anthony Mason
The Hon. Sir Gerard Brennan

Hearing: Wednesday, 3 March 1999
Date of Judgment: Wednesday, 10 March 1999

Cl: Mr D. Singh for the Appe Appellant
Mr. I. Fa for the Respondent

JUDGMENT OF THE COURT

The present respondent Mr Lepani Matea has been a school teacher in the public service since 1979. On Saturday 1 April 1995 at 6 a.m., while driving a vehicle jointly owned by his brother and himself, he lost control of the vehicle (possibly through falling asleep) and struck a pedestrian, who died. The vehicle was a taxi. The brother had a permit to drive and operate it as a taxi. The respondent apparently did not have such a permit, but on this occasion he was driving it from a garage where he had left it the day before for repairs, his intention being to take it home so that his brother could commence commercial use of it that day. The respondent’s driving of the vehicle had no connection whatever with his work as a school teacher.

The respondent was charged in the Nausori Magistrate’s Court with causing death by dangerous driving and driving a motor vehicle of a class which he was not authorised to drive. He pleaded guilty and on 11 April 1995 he was convicted and sentenced on the more serious charge to nine months imprisonment suspended for the two years; he was also fined $500, in default four months imprisonment; and he was disqualified for 18 months from obtaining or being in possession of a driving licence. On the minor charge he was fined $50, in default 50 days imprisonment.

For more than a year thereafter he continued to work in his teaching post, apparently without receiving any intimation that his employment might be affected by his conviction. Then, on or about 31 May 1996, without any prior notice, he received a notice on behalf of the Permanent Secretary for Education, Women, Culture, Science and Technology stating that on 28 May 1996 the Public Service Commission had decided that he be dismissed from the service forthwith.

On 12 May 1997 the respondent was notified that the Commission had decided to appoint him as acting head teacher at a District School; but this appointment has little or no bearing on the issue now before the Court.

The notice of dismissal of 31 May 1996 indicated that the Commission had acted under regulation 54 of the Public Service Commission (Constitution) Regulations 1990, which provides-

"54. If an officer is convicted in any court of a criminal charge, the Commission may consider the relevant proceedings on such charge and if it is of the opinion that the officer ought to be dismissed or subjected to some lesser punishment in respect of the offence of which he has been convicted the Commission may thereupon dismiss or otherwise punish the officer without the institution of any disciplinary proceedings under these Regulations."

The Regulations contain an extensive code of procedure for alleged disciplinary offences, but regulation 52 provides that, where criminal proceedings have been instituted in any court against an officer, the Commission shall not take proceedings against the officer upon any grounds arising out of the criminal charge until the court case has been determined. The Commission contends that the effect of regulation 54 is that, if the officer is convicted by the court of the criminal charge, the Commission may dismiss him without giving him any opportunity at all of making submissions to the Commission, either in writing or orally, on the question of penalty. Regulation 51 provides for a range of disciplinary penalties of which dismissal is the most serious. It will be seen, however, that while regulation 54 dispenses with the need to institute disciplinary proceedings in such a case and thus excludes the code, it is entirely silent on the officer’s right to make representations to the Commission in mitigation of penalty or otherwise.

The respondent brought in the High Court judicial review proceedings against his dismissal. By a judgment delivered on 18 March 1998 Byrne J. ordered inter alia that the dismissal be quashed on the ground of the Commission’s failure to give the respondent any opportunity to be heard and also on the ground that the penalty of dismissal was too harsh. On appeal the Court of Appeal (Casey, Savage and Dillon JJ) in a judgment delivered on 29 May 1998 confirmed Byrne J’s decision on the first ground. They pointed out that what is a fair hearing depends on the circumstances of the case; a right of personal appearance need not always be given. On the second ground they thought that, on judicial review at common law, the court is limited to considering whether a penalty was so severe and out of proportion that no reasonable body could have imposed it. The second ground has not been argued in the Supreme Court, so we are not concerned to consider the relevant scope of the common law as to judicial review or any constitutional question such as the right to freedom from disproportionately severe punishment (article 25(1) of the Constitution of 1998).

The Permanent Secretaries appeal to this Court from the decision of the Court of Appeal on the first ground. But the law on such a question is so clear that the appeal is virtually hopeless. There are numerous authorities establishing, at common law, that where someone’s livelihood is at stake that person is entitled to a fair opportunity of a hearing unless the relevant legislation has clearly excluded it. There is a presumption that natural justice applies; or, as Lord Reid put it in Wiseman v Borneman [1971] A.C. 298, the courts supplement procedure laid down in legislation if the statutory procedure is insufficient to achieve justice and the additional steps would not frustrate the apparent purpose of the legislation. We repeat that we are not now called upon to consider whether the Constitution requires some qualification of the last part of Lord Reid’s proposition. The general presumption of a common law right to a hearing is, however, so well established that we need not labour it. As already indicated, an opportunity for some form of fair hearing by the Commission is perfectly consistent with the scheme of the Regulations. It is only the elaborate disciplinary code procedure that is excluded in a case such as this.

The importance of the right to natural justice in this case is evident when one considers the long and unexplained (except for a conjecture that the file had been mislaid) delay before the Commission took action. The respondent would almost certainly have wished to stress that this alone made the extreme penalty inappropriate. He might well also have contended that in the circumstances the criminal penalties were sufficient: that it would be unjust to impose, in substance, double punishment for an offence which, although serious, was not work-related. Compare Ziems v The Prothnotary of New South Wales [1957] HCA 46; (1957) 97 C.L.R. 279 where it was held that in the particular circumstances the removal of a barrister’s name from the Roll of Barristers was too severe a professional penalty when he had been convicted by a court of motor manslaughter and sentenced to two years imprisonment with hard labour.

There is regrettably one other aspect on which we must comment. Counsel for the appellants included in his written submissions to this Court suggestions that a hearing by the Commission would serve no useful purpose, as the Commission would still give the same decision. Wisely he withdrew these suggestions when their gravity was pointed out to him. The case is obviously not of those rare ones in which the outcome as to penalty is a foregone conclusion. On the contrary, after this lapse of time a fair-minded Commission could reasonably decide to take no action. And, if there were reason to infer that the Commission had approached the issue of penalty with closed minds, any decision adverse to the respondent would be vulnerable to judicial review on that ground.

The appeal must be dismissed with costs.

Lord Cooke of Thorndon

Sir Anthony Mason

Sir Gerard Brennan

Solicitors

Office of the Attorney-General Chambers, Suva for the Appellant
Messrs. Tevita Fa & Company, Suva for the Respondent

CBV0009U.98S