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'Amanaki v Tu'ifua [2009] TOSC 27; CV 1139 of 2007 (27 November 2009)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY


CV 1139 of 2007


BETWEEN:


MELE TEUSIVI 'AMANAKI
Plaintiff


AND:


1. MISHKA TU'IFUA, Chairwoman
2. TAI'ATU 'ATA'ATA, Member
3. ROSS CHAPMAN, Member
all of Nuku'alofa, sued in respect of the Public Service Commission
First Defendant


AND


KINGDOM OF TONGA
Second Defendant


BEFORE THE HON. JUSTICE LAURENSON


Date of Hearing: 2 and 3 November 2009
Date of Ruling: 27 November 2009


Counsel: Mr. W.C. Edwards KC for the Plaintiff
Mr. A.H. Waalkens Q.C for the 1st Defendants.
Mr. A. Kefu for the 2nd Defendants


INDEX


INTERIM JUDGMENT
Pages
1.
INTRODUCTION
3
2.
DOCUMENTS
3
3.
FACTUAL BACKGROUND
3
4.
FIRST CAUSE OF ACTION

1st DEFENDANTS
6
5.
DISCUSSION 1st DEFENDANTS
10
6.
BREACH A
16
7.
BREACH B
20-21
8.
BREACH C
21-23
9.
BREACH D
23
10.
BREACH E
23-24
11.
CONCLUSION 1st DEFENDANTS
24
12.
ORDERS „
25-26
13.
SECOND CAUSE OF ACTION
26

2nd DEFENDANTS
14.
PROCEDURAL UNFAIRNESS
26-28
15.
BIAS
28
16.
TEST FOR BIAS
29
17.
PRE-JUDGMENT
29
18.
JUDGING OWN CAUSE
31
19.
AUDI ALTEREM PARTEM
31
20.
ORDERS
31-32
21.
ADDITIONAL MATTER S
32

INTRODUCTION

[1] The Plaintiff was previously employed as the Principal Food Technologist in the Tongan Ministry of Agriculture Food, Forestry & Fisheries (MAFFF). On 30 July 2007 her employment was terminated following a special meeting of the Public Service Commission (PSC). An appeal to the Cabinet was dismissed on 10 August 2007. The Plaintiff now seeks orders damages and costs by way of Judicial Review.

DOCUMENTS

[2] The bulk of the documents relevant to this case were produced by consent in the forum of two bundles prepared by the Plaintiff. I have referred to these documents as P1 etc. Other documents were produced from time to time during the hearing again, with the consent of all parties. I found no reason to hinder this process given the parties' attitude. Following the hearing I have compiled the following list of the additional documents.

FACTUAL BACKGROUND

[3] In September 2005 there was a strike by Public servants in Tonga.
[4] This was resolved following negotiations between a Cabinet Team which included the Prime Minister and a Negotiation team for the Interim Committee for Dissatisfied Civil Servants which included the Plaintiff. The results of the negotiation were set out in a Memorandum of Understanding (M.O.U.) dated 3 September 2005.
[5] In October 2005 the Public Service Association (P.S.A.) was formed and later incorporated on 13.12.2005. The Plaintiff was the interim secretary and later the Secretary General.
[6] A copy of the M.O.U. and an attachment to it are appended to this judgment as appendix A.
[7] On 3 March 2006 the PSA wrote to the Prime Minister expressing its concern that certain decisions of the Government had breached the M.O.U. A further letter was sent on 26/10/2006 to the Chairperson of the P.S.C. complaining at the manner in which salary increments were being allowed in some cases and not in others. A somewhat terse follow-up letter was sent on 15.11.2006.
[8] In January 2007 the Plaintiff learned that she was the subject of an Assessment by the new CEO of MAFF. She inquired this was about by letter dated 24.01.2007. She was unable to obtain an answer.
[9] On 2 February 2007 she was advised by letter that she was suspended from duty without pay from 4:30pm that day. This followed a report from the CEO dated 12.1.2007 to the Acting Secretary of the Public Service Commission (PSC) relating to an allegation that the Plaintiff had "abused the Ministry's E.Mail facility by transmitting emails rallying political support against Government - her employer." This was regarded as a serious breach of discipline.
[10] A letter containing the charges relating to 3 specific Emails was sent with the suspension letter.
[11] The Plaintiff replied with a lengthy submission to the PSC setting out her defences. Essentially she stated that the 3 emails were all related to P.S.A. business. This however, was not unusual given that a previous CEO and acting CEO's had all been aware of the practice and no objection had been raised over a number of years. The first objective of the PSA was "To promote the efficient Application of the Constitution Laws of Tonga throughout the working lives of members". The object of the Emails was to inform, rather than rally support against the government.
[12] On 20.04.07 the PSC advised the Plaintiff by letter (P.23) that it had decided that she be
In the same letter she was warned at length of her responsibilities as a public servants and the consequences which could follow if she chose to disregard them in the future.
[13] The Plaintiff appealed to the Cabinet. The appeal was disallowed.
[14] Neither of these two decisions are the subject of the present proceeding. They are, however, essential elements of the background to it.
[15] The MOU in so far as it related to interim pay increases for Public servants was due to expire on 30.6.07. Starting in about March 2007 the PSA sought to discuss with the Government the future progress of the MOU. It had no success. The PSA therefore prepared a Report of the Survey in the MOU of the Public Servants' 2005 Salary Increase and the Political Reform in Tonga (P.27). This report (which included the results of a survey of public servants) was sent by the PSA to the Prime Minister under cover of a letter dated 29.5.2007 (P.28).
[16] A copy of this letter signed by the Plaintiff as Secretary General of the PSA is appended to this judgment as appendix B.
[17] No reply was received to this letter. Accordingly a further letter dated 18.6.07 (P.29) and also signed as before by the Plaintiff was sent to the Prime Minister. Again, there was no reply to the P.S.A. A copy of this letter is appended as Appendix C.
[18] On 4.7.07 (P.31) the Plaintiff sent a further letter on behalf of the PSA this time to this Heads of Departments of Government Ministries seeking permission for all PSA members to attend a presentation of a petition to His Majesty King on 6.7.2007.
[19] On 3.7.07 the Director of MAFF wrote to the Acting Secretary for PSC referring to the letters (P.28 & P.29) and the warning sent to the Plaintiff dated 20.4.07 (P.23). He requested that these be considered with a view to charging the Plaintiff for becoming involved in political activities without prior approval as required by clause 3(2)(g) of the Public Service Act 2002 (Section 19) and the Code of Conduct for the P.S.A. 2004, and in violation of the warning no.4 in the warning letter of 20.4.2007 (P.23). (I note the reference should be to S 3 (2)(g)) of the Code).
[20] The upshot was that the Plaintiff received a letter dated 9.7.07 (P.32) from the PSC charging her with having committed serious breaches of discipline (s 7(1) of the P.S.C. (Disciplinary Produces) Regs 2003 namely
[21] The Plaintiff exercised her right to reply in a short letter to the PSC. Basically she referred to what she had said previously and, importantly, referring to the long document (P.27) which had accompanied (P.28).
[22] On 2.8.2007 (P.34) the PSC advised the Plaintiff that it, having considered the matter had decided:-
The letter concluded with.
[23] Following an appeal by the Plaintiff, she was advised by the PSC on 29.08.2007 (P.36) that the appeal had been heard by Cabinet on 10.08.2007 and dismissed.

FIRST CAUSE OF ACTION — AGAINST 1ST DEFENDANTS.

[24] The Plaintiff submitted in relation to the charges which had been made against her:-
[25] As to the specific damage that the Plaintiff had engaged in political activities without prior approval she said:
[26] The Plaintiff submitted in relation to the charge that the first 2 letters (p.28) & (p.29) disclosed conduct which was contrary to the Government, that this was in effect, groundless.
[27] As to the 3rd charge based on the letter (P.31) wherein permission was sought for P.S.A. members to attend the presentation of a petition to the King, the Plaintiff submitted that this cannot properly be regarded as an attempt to improperly mobilize public servants against the government because it was done pursuant to the constitutional right contained in S8 of the Constitution Act.
[28] As to the charge that the Plaintiff had failed to ensure her role as a member of the P.S.A. did not constitute a conflict of interest with her role as a Public Servant, she submitted:-
[29] Taking all these matters together the Plaintiff, referring to Associated Provincial Picture Houses Ltd v Wednesbury Corp. [1947] EWCA Civ 1; [1948] 1 KB 223, submitted that the decision of the PSC in this case was so unreasonable that no reasonable authority could ever have come to it. This being the case it should be set aside. As the hearing developed however it became clear that the Plaintiffs main thrust was, that because the disciplinary process leading to the decision to dismiss was so beset with significant instances of procedural unfairness throughout, the decision should be quashed.
[30] The First Defendants first submission in reply was originally that its decision was not reviewable simply because Parliament in this case had provided a right of appeal. This argument was not pursued because the right of appeal in this case is stated to be only that i.e. a general appeal. As such it does not provide the appellant with an opportunity to argue the merits de novo. According such a right of appeal does not prevent a judicial review of the final decision (no this case the PSC's) even if the appeal has been exercised. (Calvin v Carr [1979] UKPC 1; [1980] AC 574].
[31] Stated briefly the first Defendant's remaining submission was that the PSC had had to determine whether or not the Plaintiff had failed to comply with S 6(2)(a) and S 3(2)g of the Code of Conduct for the Public Service. It had addressed those issues and had correctly concluded that there was evidence upon which it could properly find a basis for the charges.
[32] S 6 (2)(a) states:
[33] S 3(2)(g) states:

(2) All employees of the Public Service shall —

...
(g) refrain from making any public statement or from engaging in political activity without the prior approval of the Head of Department; and"
[34] On the 20th April 2007 the PSC had sent the reprimand letter (P.23) to the Plaintiff setting out very clearly what was expected of her in her relationships with the Government. In particular that she was to avoid direct conflicts of interest "between the stance you communicate and that of Government policy.
[35] The First Defendant submitted that the first letter (P.28) had clearly entered into the area of plaintiff political activity by pressing for political reform and addressing the issue of deferment of reconstruction loans. If there should be any doubt about this then the action in sending copies of the letter to all M.P's, and more particularly the representatives of Australia, New Zealand, China and USA took the matter beyond any doubt.
[36] The second letter (P.29) in the First Defendants' submission "exacerbated matters and showed a clear intention to continue without any regard for the warning, exacerbating her breach of it and the Code of Conduct with a vitriolic and intemperate personal attack on the Prime Minister himself - that he had lied (asserted 3x in last two paragraphs)".
This letter was also copied to others but not apparently, to the foreign representatives.
[37] The 1st Defendant does not appear to have addressed the significance or otherwise of the 3rd letter (P.31). This letter was, however, relied on by the PSC as an indication that the Plaintiff had sought to mobilise public servants to take action against Government their employer".
[38] The decision of the PSC dated 30 July 2007 (annexure to Tu'ifua affidavit para. 15) is brief and to the point. It noted that the Commission in its deliberations was satisfied with the recommendation put forth for many reasons.
[39] The "many reasons" appear to be:-
[40] The First Defendants' decision was:-

DISCUSSION – 1st DEFENDANTS

Counsel for the 1st Defendants submitted "the decision in question at all times was one of discretion. This does not readily lend itself to a Judicial review -certainly not an intensive review or as some of the cases refer, to a "hard look" as is invited by the Plaintiff."

[41] Halsbury 4th Ed Vol 1(1) para 89 says:
[42] This case involved a relatively short two day hearing. When I came to consider my verdict I found it necessary to undertake a far more detailed analysis of the documentation than that undertaken during the hearing. My scrutiny of the documentation was, of necessity, done in detail. In addition, the case related to a senior public servant who had been dismissed. That seemed to me to raise a fundamental human right. This judgment does involve a rigorous examination of the actions of the Defendants. I consider this to be appropriate in this case.
[43] The PSC decision does not refer directly to the charges set out in the letter (p.32) dated 9.07.2007. It does however refer to the recommendations made by the Disciplinary Committee (which I take to mean a Committee of Enquiry convened pursuant to Reg. 8 of the Public Service (Disciplinary Procedures Regs. (Disciplinary Regs.) to the PSC in a memorandum dated 27 July 2007. A copy of this memorandum is included as an annexure to the Cabinet submission (Ex. to Ma'u Affidavit).
[44] This memorandum refers to the Charges and attached a copy of the charge letter dated 9.07.07 (P.32).
[45] I have had considerable difficulty in establishing the precise nature of
[46] In particular I do not accept that it is appropriate to rely on to Sec 6(2)(a) (see PARA [32] above without specifying very clearly, precisely what factual elements are relied on. I do not see that this occurred in this case.
[47] The starting point seems to be a Savingram dated 29 June 2007 (produce by consent) from the Acting Chief Secretary & Acting Secretary to Cabinet to the Chairperson P.S.A. with a copy to the Acting Member of Agriculture and to the Director of Agriculture. Its stated:-
[48] The Director of Agriculture replied to the Secretary of the PSC on 3 July 2007 (P.30) with copies to the Chairperson of the PSA and the Minister of Agriculture. He referred to:
[49] It is convenient to refer at this point to the requirement pursuant to Reg 5(1) of the Disciplinary Regs that a Head of Department in the case of a Serious Disciplinary breach -
[50] When the Plaintiff was first charged in January 2007 which led to her being suspended then reinstated and reprimanded; she had complained (P16) to the Head of Department that she had not been given the opportunity to participate in the inquiry either to learn what was alleged or to provide an explanation.
[51] It appears that the same situation applied on the second occasion with which his case is concerned.
[52] Mr Edwards submitted the Head of Department had not, as a matter of law, inquired into the matter i.e. there was no advice given to Plaintiff about what was in issue nor was she given an opportunity to reply.
[53] My brief research on this point indicates that an obligation to inquire, particularly in a situation which could cause detriment to another person, involves an inquiry. This is something more than just collating relevant facts. It involves a judicial function including the obligation to give the subject matter a fair hearing. This would involve, at the very least, notice to that person of what was alleged and the right to reply (see Wenlock v River Dee Co, [1887] UKLawRpKQB 100; 19 QBD 155 and Allbutt v General Medical Council, [1889] UKLawRpKQB 125; 23 QBD 400).
[54] In the present case this inquiry seems to have been to say the least cursory. No notice was given to the Plaintiff. Significantly the Plaintiff's immediate supervisor in the Dept, Mana'ia Halafihi says in her affidavit she was not consulted all. Furthermore, as I have noted elsewhere, the author of the report (p.30) appears to have not checked the relevant authorities correctly (para [45(b)] above.
[55] For these reasons I cannot see that the Head of Department can be said to have inquired into and provided a full report. Given the later safeguards provided for in the Code for the rest of the disciplinary process, I consider that if this failure was the only defect in the total process, it would not by itself be sufficient to vitiate the whole process. It was not, however, the only procedural failure or unfairness.
[56] Upon receipt of this letter the PSC referred it to a Committee of Inquiry to undertake an investigation under Reg 8 of the Public Service (Grievance and Dispute Procedures) Regulations.
A copy of the report from the Committee is attached as part of exhibit "A" to the affidavit of Paula Pouvalu Ma'u.
[57] In appears that the Committee agreed with the view of the Director of Agriculture that serious breaches had occurred and that the Plaintiff should be charged. The Committee then prepared the letter of 9.7.07 (P.32) setting out the charges, namely breaches of Sections 2 (a)(c)(d); 3 (a)(c)(d)(e)(g); 5(2)(e); 6 (2)(a).
(I note that the ref to s 3 should be s 3 (2)(a)(c)(d)(e)(g).
[58] The reference to the above sections is contained on p.2 of annexure 6 being part of the ex "A" to the Ma'u affidavit. Although it is not stated in the memorandum I assume that the references are to the Code of Conduct.
[59] Sections 2 (a)(c) & (d) state:
[60] Sections 3 (a) (c) (d) (e) & (g) state —
[61] S 5 (2) (e) states –
[62] S 6 (2) (a) states —
[63] It was therefore alleged that the Plaintiff had breached 14 separate provisions of the Code.
[64] The details of the alleged breaches were as set out by the Committee in the charge letter dated 9.07.07 (p.32).
For the sake of clarity I have marked these A - E.
[65] The net result at this point is that the Plaintiff was charged with 14 separate Breaches of the Code of Conduct in relation to 5 breaches for which details were provided to her.

BREACH A

[66] So far as this breach is concerned, there is specific reference to (involvement) "in political activities, and without prior approval of the Head of Dept. as per your two letters of 29 May 2007 and 18 June 2007 to the Hon. Prime Minister." This breach is clearly referable to S 3(2)(g).
There is nothing in the particulars to indicate reliance on any other section or sections of the Code.
[67] It follows that there must have been something about these two letters which provided a basis for finding that the Plaintiff was involved in political activities.
[68] There seems to me to be two possibilities:-
[69] Mr Waalkens Counsel for the 1st Defendant appears to have relied on the contents of the letters. He referred to three matters which indicated the Plaintiff had not confined matters only to those relating to improved conditions for the PSA namely -
[70] As to the second letter (p.29), it was submitted that this "exacerbated matters and showed a clear intention to continue without any regard for the warning, exacerbating her breach of it and the Code of Conduct with a vitriolic and intemperate personal attack on the Prime Minister himself - that he had lied (assented 3x in law two paragraphs). Again letter copies to others."
[71] There are a number of issues which arise. The first is that none of the specific matters referred to in paras [67] & [68] above are included in the "details of the alleged breaches" set out in the charge letter (p.32). This being so the Plaintiff was entitled to assume the PSC did not regard than as relevant and accordingly no answer was required. The submission of their counsel seems to imply that the PSC did in fact regard them as important and hence the implication is that the PSC did take these matters into account. To do so without having previously given notice to the Plaintiff of these particulars in the context of a serious disciplinary proceeding constitutes a matter of significant procedural unfairness.
[72] The second issue is, if the contents of the letters cannot found a breach OR were not intended to be relied on to do so, did the mere fact that the Plaintiff signed them amount to proof of political involvement? This calls for an examination of her role at the time.
[73] The Plaintiff was the Secretary-General to the P.S.A. The P.S.A. had had assigned to it, the functions of the Interim Committee. The Prime Minister as acting minister of the PSC was advised of this by letter dated 3.3.06 (P.5). Judging by the response dated 14.3.06 (P.6) the Cabinet accepted this assignment.
[74] The Plaintiff's position as a servant of the PSA was spelled out very clearly in the letter signed by the PSA Acting President Mr Vili Vete dated 26.4.07 (P.25). It was spelled out even more clearly in the Plaintiff's submission to Cabinet on her 1st appeal (P.26).
Again, in the Plaintiff's letter dated 24.7.07 (P.33) to the PSC there is specific reference to her having acted on behalf of the PSA.
[75] In the report dated 7.5.09 from the Acting Secretary PSA to the Cabinet there is specific reference to -
It is clear therefore that the PSC knew when it came to determine the charges against the Plaintiff that it was dealing with matters arising out of her position with the P.S.A.
[76] There is no evidence to suggest that the matters referred to in the two letters did not correctly set out the views of the PSA nor that the letters had been signed without the authority of the P.S.A.
The result is, in my view, that the PSC was faced with a fundamental problem from the outset. The charges to be considered on the second occasion were quite different in nature from those on the first occasion back in April 2007. On that occasion there were specific charges relating to the irregular use of Government facilities and time. Following production of the 3 emails in question, the facts spoke for themselves. In the present case there is a very different situation.
[77] I have referred in Para [67] above to the submissions made on behalf of the 1st Defendant in which "SHE" (the Plaintiff) was alleged to have done particular actions.
From my perusal of the papers there is not one piece of evidence to show that the Plaintiff did any of the above matters in any capacity other than that of an authorized officer of the P.S.A. Absent any such evidence I cannot see how any disciplinary authority could have reasonably come to the decision it did without, at the very least considering the Plaintiff's particular role i.e. had she exceeded her role as the Secretary-General of the P.S.A. by expressing views held by her personally and not by the P.S.A.?
[78] If the evidence was such that it proved only that the Plaintiff was acting as a functionary of the P.S.A. then, in my view, the decision that the Plaintiff should be dismissed must be regarded as manifestly unfair. However, I remind myself here the concern is only with procedural unfairness. As I see it, there was such unfairness, namely when the PSC came to the decision it did, there is nothing to show that it did in fact turn its mind to the issue raised by the Plaintiff. That was in effect, "you can't blame me - I just happened to be the Secretary-General who inter alia signs letters."
[79] In fact there is one item of very clear evidence to show that the views expressed in the two letters were those of the P.S.A. I refer to the P.S.A. Survey (P.27) sent to the Prime Minister on 29.05.2007 (P.28). This is a lengthy and to my mind, temperate document setting out the view of the P.S.A. It never received a reply. Importantly in the present context it says at the end.

"This report was prepared by the Executive Board of the Public Service Association."

(Mele T. 'Amanaki)
(Mr Vili Vete)
Secretary General
Acting President
[80] There is another indication that the PSC had not clearly focused their minds when reaching the decision it did. In the Minute recording the decision (attached to affidavit of Mishka Tu'ifua) there appears the following.

(my emphasis)

[81] I fail to see what relevance the underlined sentence can have had to the matter which the PSC was considering. That is of course, unless the PSC did take into account the actions not of the Plaintiff, but rather, those of the PSA. If it did, then, it follows that it took into account an irrelevant consideration when considering the Plaintiff's position. Conversely if the P.S.A. never turned its mind to the Plaintiff's position as Secretary-General (as raised by her) then it clearly failed to turn its mind to a relevant consideration.
[82] In the context of this matter I consider either way there was a significant procedural unfairness.

BREACH B

[83] This appears to be an allegation that the Plaintiff ignored the warning contained in the letter dated 20.4.2007 (p.23). There are 4 specific warnings:
[84] This leaves warning 4 namely, "Your obligation to take reasonable stops to avoid any conflict of interest (real on apparent) with your employment, in accordance with section 4(2)(h) (should be 4(2)(d)) of the Code of Conduct has not been satisfactorily demonstrated by you".
This issue is referred to on the second page of the Charge letter dated 9.7.07 (p.32). It is an issue directly referrable to S 4(2)(d). There is, however, no reference to any charge pursuant to that section in the Memorandum from the Committee to the P.S.C. More importantly, nor, is there any mention of any charge being pursuant to that particular section in the charge letter to the Plaintiff dated 9.7.07 (p.32).
[85] The following matters are therefore relevant to Breach (B):
[86] The Plaintiff in this case faced charges which the Head of Department had decided pursuant to S 3 of the Disciplinary Regulations were serious breaches of discipline. In such a case the person accused is entitled to know precisely what they are charged with. The letter (p.32) setting out the charges in this case is, in my view, confusing to say the least. There are 5 specific details of alleged breaches. Not one of these is specifically related to the 14 Sections of the Code which were alleged to have been breached. Two of the details (Breaches 2 & 4 (disregarding warnings) can only refer to the 4th warning in the Reprimand letter (p.23). That warning relates only to a breach of S 4(2)(d) of the Code. That section is not included in the 14 alleged to have been breached.
[87] The PSC Minute recording its decision is annexed to the affidavit of Mishka Tu'ifua the PSC chairperson. Brief though it may be, the Minute makes it clear that regard was paid to the alleged failure to heed the reprimand and warning. In so doing it paid regard to allegations which properly could only be raised under S 4(2)(d) of the Code. That section was not amongst those relied upon nor, referred to in the charges sent to the Plaintiff.
[88] In my view any finding by the PSC in relation to the particular allegation must be regarded as defective if for no other reason but that the Plaintiff was not properly informed of the charge against her.

BREACH C

[89] This relates to the letter dated 4.7.07 (P.31). Like the other letters (p.28 & P.29) it is on P.S.A. letterhead and signed by the Plaintiff as Secretary General. This letter was written the day after the Director of MAFF forwarded his report dated 3 July 2007 (P.30) pursuant to Regulation 5 of the Disciplinary Regs which stated:
[90] Regulation 7 of the same Regulations states:-
[91] So far as any charge arising from Breach C is concerned there is no evidence of
[92] It follows from the above that when the PSC came to consider the charges against the Plaintiff it must have taken into account the information and recommendation relating to Breach No.3 (the letter dated 4.7.07 P.31). The PSC was not entitled to do so. The absence of a report from the Head of Dept. fundamentally flawed the disciplinary procedure so far as Breach No 3 was concerned.

BREACH D

[93] This said -
This allegation appears to be simply a restatement of Breach No 2.

BREACH E

[94] This said -
This allegation is essentially covered by the discussion in relation to BREACH B. The appropriate charge would be under S 4(2)(d) of the Code but, as previously noted, that section was not relied on in the Recommendation on the charge letter.

CONCLUSION 1st DEFENDANT

[95] In this case the Court is required to determine whether the Plaintiff has made out a case for relief by way of Judicial Review. Essentially she has submitted that the decision by the 1st Defendant was impaired to such on extent by a succession of procedure errors that it was unfair and should be set aside.
[96] I have concluded that there were a number of such procedural errors namely:
[97] I have had to consider whether all on any of the above procedural failures would justify granting relief in this case. I have concluded that if the total effect of those failures is taken into account, then the only proper conclusion is that the decision to dismiss the Plaintiff was fatally flawed.
[98] I reach a similar conclusion when considering the absence of any proper basis for the Breaches B & C.
[99] Of all the matters I have listed I regard the failure to take into account the issue raised by the Plaintiff namely her role as a servant of the PSA as being the most significant.
It was a matter which in my view had to be addressed before any finding could be made. The failure to do so, by itself, warrants the Plaintiff being granted relief.
[100] Prior to the conclusion of this hearing Mr Edwards requested that the issue of damages be dealt with by way of written submissions. Counsel for both Defendants opposed this on the ground that insufficient grounds had been included in either the pleadings on evidence. I agree that they are sparse to say the least. I do not see, however, given that it was made clear in the pleadings there would be a claim for damages, that the position cannot be resolved now, and without prejudice to the Defendants by written submission's.

ORDERS - 1st DEFENDANTS

[101] Accordingly there will be the following orders —

SECOND CAUSE OF ACTION AGAINST 2nd DEFENDANT

[102] Even though I have now determined that the decision of the PSC should be quashed because of the procedural errors made in the course of reaching it, it is still necessary to determine the appeal against the Cabinet decision. If, upon appeal, another Court found my decision to be wrong that would still leave open the question whether the Cabinet decision should or should not be upheld.
[103] The first and second defendants both submitted that the PSC had ample material upon which it could base the decision to dismiss. Accordingly because the Cabinet had had the same material then it followed that the Cabinet decision must also be sound. Now that I have found the PSC decision was unsound and should be quashed. That brings into issue the question whether if also follows that the same should apply to the Cabinet decision.
[104] In my view it does and for the simple reason that if the PSC made the errors of procedure I have found then, the Cabinet having the same material must have simply perpetuated those errors.

PROCEDURAL UNFAIRNESS

[105] The appeal pursuant to S.13 of the Code and S 31(2) of the Public Service Act simply refers to an appeal. As such the Cabinet is required to rehear the case on the documents. It considers the materials which were before the PSC. It is then required to make up its own mind, carefully weighing and considering the decision appealed against and reversing it if, on full consideration, it comes to the conclusion that the decision was wrong.
[106] Earlier in this judgment I have detailed the procedural errors which occurred, starting with the actions (and lack of actions by the H.O.D.) then continuing through to the decision of the P.S.C.
[107] So far as the Second Defendant was concerned, when it come to consider the appeal it had before it to enable a "careful review":-
[108] In her affidavit (para.11) Paula Pouvalu Ma'u deposes that "Cabinet discussed the appeal in detail". What did it discuss? Did it for instance discuss the significance of the Plaintiff's of role as Secretary General of the PSA when she signed the two letters? No indication of the answers to this and other matters are given in the affidavit. No decision setting out the basis of the Cabinet decision was provided.
[109] On that basis alone I conclude that the Cabinet decision cannot have included a careful weighing and consideration of the decision appealed against.
In one respect that is not surprising. The "decision" which the Cabinet was asked to carefully weigh up and consider was sparse to say the least (The annexure to the Tu'ifua Affidavit).
I find accordingly that the decision by the Cabinet did not include a careful weighing up and consideration of the PSC decision because -
[110] I therefore find the Plaintiff is entitled or relief on this ground alone.
[111] Despite my decision there are two further matters raised by the Plaintiff to which I should refer. The Plaintiff submitted in this case there was sufficient evidence viewed objectively by an impartial bystander, to enable the conclusion that Cabinet's decision was biased. Stated briefly the grounds were:
[112] The Second Defendant firmly rejected these submissions. Emphasis was placed on the fact that if there had been any substance in these accusations then
[113] Having considered the matter I have concluded that the Plaintiff has not satisfied me that there is proof beyond reasonable doubt that bias has been made out (which ever test might be applied) on the argument noted above. The decision being appealed is a decision of the Cabinet. It is in my view both unseemly and inappropriate to single out one member of it on the evidence available.
I consider the question whether or not bias attached to the Cabinet decision is better approached from another angle namely, whether there was a prejudgment of the appeal, by the Cabinet as a whole.

TEST FOR BIAS

[114] Before continuing further with the issue of bias it is necessary to determine what is the threshold test to be met by the Plaintiff. The Solicitor-General advised me that the law in Tonga is unresolved on this. In his submission be submitted that the test was whether a fair-minded and informed observer would form the view that there was a real possibility of bias. In other words an objective test based on the House of Lords decision in Porter v. Magill [2002] 2 AC 357. Whether this test or an objective consideration of the suspicion of bias is more desirable was not argued before me. It was not a case where a semantic dissection of the difference between the two words likelihood and suspicion arose. The Plaintiff said, on the one hand, that this was a case of actual bias whenever the 2nd Defendant submitted there was no proper basis to allege any appearance of bias.
[115] The day will no doubt come when this Court will be required to resolve the issue in a case where it is of significance to that case. In the meantime I am prepared to hold that the test should be as submitted by Mr Kefu. This finding is also is consistent with the provisions of S.4 of the Civil Law Act Cap 25.

PREJUDGMENT

[116] The Second Defendant's involvement with the appeal to the Cabinet started with Savingram dated 29 June 2007 from the Cabinet Secretary to the PSC (see para [45]). That document and its contents are important.
[117] First, the heading i.e.
The P.S.A. Survey (P.27) was sent by the P.S.A. to with the letter dated 29 May 2007 (P.28). (see also PARA [77]). It is as I have already said a quite impressive document. It is the reason why both the letters P.28 and P.29 were sent.
No response to the memorandum or letters was sent to the P.S.A. The only follow up was the Savingram to the PSC instigating disciplinary action against the writer of the letters.
One has to ask, why was the Plaintiff singled out? What about the remaining member of the P.S.A. Executive Board?
[118] Secondly. Having decided that disciplinary action should be taken against the Plaintiff, the Cabinet chose to commence this by communicating with the P.S.C. This was quite inappropriate given that this was the body which might have to decide the Cabinets complaint.
[119] Thirdly. Putting aside the last matter for the moment, the approach to the PSC was even more inappropriate if regard is paid to the fact that the only acceptable request should have been to request the H.O.D. to "inquire into and forward a complete report" of the case to the Secretary" (appointed under the Public Service Act) — see Code S 5.
[120] In my view these matters indicate the Cabinet had formed a view when the Savingram was sent, that the signing of the two letters alone was sufficient to found the disciplinary charges. In this regard I note that counsel for the Second Defendant said in his submissions that the substance of the two letters was not in issue.
[121] Furthermore it assumed that the H.O.D. would agree. The H.O.D. did agree. However, before he was entitled to do so, he was required to inquire into the matter he didn't.
[122] I consider that having formed the view from the outset that the Plaintiff had offended, it persisted with that view when it became appraised of the matter as the appeal authority and then to the point when it decided to dismiss the appeal.
[123] As I have already indicated and, to be fair to the Cabinet, these were matters taken into account and others wrongly not taken into account by the P.S.C. Had this not happened and had a proper written decision been provided by the P.S.C. for the Cabinet would a least have been on its guard.
[124] I am therefore left with the conclusion the Cabinet formed a view from the outset of the Plaintiffs guilt and subsequently endorsed the PSC decision which had confirmed the Cabinets initial view.
[125] I am therefore satisfied beyond reasonable doubt that a fair minded and informed observer would form the view that there was a possibility of bias namely a prejudgment. On this ground too, I found the Plaintiff entitled to relief.

JUDGMENT OF OWN CAUSE

[126] Allied to the issue of prejudgment is the question of invalidity arising from the Cabinet judging its own cause. For very much the same reasons mentioned above, again I conclude that the evidence would provide a proper basis for a finding of bias under the head.

AUDI ALTEREM PARTEM

[127] Finally the Plaintiff argued that she had not been afforded a fair hearing before the Cabinet. She had been given the opportunity to make a written submission which she did. The 2nd Defendant submitted that an actual appearance by the Plaintiff with or without legal representation, was never requested before hand, hence the Plaintiff was in effect estopped from raising it now. In this day and age I am very doubtful if that proposition should be regarded as correct. If I am right in this view then at least one could assume the Cabinet would have had to face up to the fact that no where had the P.S.C. apparently dealt with what I see as one of the vital issues in this case. That is the Plaintiff's role which she had raised directly with the P.S.C. and the Cabinet in writing.
[128] I consider that the Plaintiff should have been given the opportunity to appear. I find this to be another ground justifying relief.

ORDERS

[129] For the forgoing reasons I find that the Plaintiff is entitled to orders as follows:
[130] Accordingly there will be the following orders —

ADDITIONAL MATTERS

There are two additional matters which I think warrant consideration.

1. The right of appeal to the Cabinet. To my mind it is inherently wrong that the executive of the Government should hear appeals from the P.S.C. relating to its own servants. This case illustrates why to preserve the appearance and reality of fair dealing any appeal should be to a completely independent judicial authority as is the case in for example New Zealand and Australia.
2. The Disciplinary Regulations should specifically refer to the right of a person charged to appear and be represented by counsel before both the P.S.C. and the Cabinet on Appeal.

NUKU'ALOFA: 27 November 2009
JUDGE

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