Public Service Commission v Lokeni-Lepa [2005] WSSC 27 (25 November 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

PUBLIC SERVICE COMMISSION
Constitutional Authority established under Part VII of the Constitution.
APPLICANT

AND

FERILA LOKENI LEPA
of Vaitele-Uta, Public Servant.
RESPONDENT

Counsel: R Wulf and S Rimoni for applicant
LT Malifa for respondent

Hearing: 17 November 2005
Judgment: 25 November 2005

JUDGMENT OF SAPOLU CJ

Proceedings

These proceedings are concerned with a motion by the Public Service Commission to strike out a motion for judicial review filed by the respondent in relation to a decision by the Commission to appoint someone other than the respondent to the position of assistant chief executive officer, corporate service, in the Ministry of Foreign Affairs and Trade which is a contract officer position in terms of the Public Service Act 1977. The ground on which the motion to strike out is founded is that a decision made by the Public Service Commission to appoint or not to appoint someone to a contract officer position is not judicially reviewable. In other words, what is being claimed is that such a decision made by the Public Service Commission is not amenable to judicial review.

The respondent who was one of the unsuccessful applicants for the position of assistant chief executive officer, corporate service, in the Ministry of Foreign Affairs and Trade has filed a motion for judicial review of the decision by the Commission not to appoint her but to appoint someone else. The grounds on which the motion is based may be described as illegality, irrationality and procedural impropriety: see Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374 per Lord Diplock at pp 410-416. At the same time the respondent has also filed a statement of claim seeking damages for alleged breach of the right to a fair trial provided under Article 9 of the Constitution and for alleged breach of the freedom from discriminatory legislation provided under Article 15 of the Constitution. Damages are also being sought in the statement of claim for alleged illegality, irrationality and procedural impropriety on the part of the Commission when making its decision not to appoint the respondent.

Whilst counsel for the applicant informed the Court that the motion to strike out raises a novel issue, namely, the public law/private law divide, it is clear that the respondent’s causes of action in her statement of claim also raise novel issues. As a matter of procedure, the filing by the respondent of a motion for judicial review at the same time together with a civil claim seeking damages also raises a novel procedural issue. This is truly a case of novel issues as far as Samoan law is concerned. I must say that it also touches on some of the complex areas of public law. However, I am only concerned in the present proceedings with the applicant’s motion to strike out the respondent’s motion for judicial review.

Background

It is not necessary to refer in detail to the facts which have been alleged for the purpose of these proceedings. It is only sufficient to refer to such facts which will enable the Court to deal with these proceedings in a proper and meaningful way.

The Public Service Commission is established under Article 84 of the Constitution. Its functions are provided in Article 87 of the Constitution which further provides that the Public Service Commission may have such other functions as may be provided by Act. The relevant Act is the Public Service Act 1977. It is clear from the relevant provisions of the Constitution and the provisions of the Public Service Act 1977 that the Public Service Commission is the employment arm of Government. I will refer in detail later to the specific function of the Public Service Commission of making appointments to the public service for that is the Commission’s function which is in issue in these proceedings. But I will turn first to what happened in this case.

The position of assistant chief executive officer, corporate service, in the Ministry of Foreign Affairs and Trade was advertised in the public service official circular of 28 March 2004. It was then re-advertised in the public service official circular of 1 April 2004. The respondent who is a foreign affairs officer in the Ministry of Foreign Affairs and Trade submitted her application for the position on 14 April 2004. However, the position was re-advertised again in the public service official circular of 17 November 2004. There were seven applicants including the respondent to that re-advertisement. A panel of three members was then appointed by the Commission to interview the applicants. The panel was chaired by the chief executive officer of the Ministry of Foreign Affairs and Trade. Two of the applicants withdrew so that only five applicants were interviewed. The report of the interviewing panel to the Commission shows that two members of the panel graded the respondent highest with the applicant who was later appointed by the PSC to the advertised position being graded second. The third member of the panel graded the applicant who was appointed the highest with the respondent second. It was then unanimously agreed between the members of the interviewing panel that the recommendation to the Commission for appointment would be based on the assessments of the majority of the panel. Accordingly, the respondent was recommended for appointment.

When the Public Service Commission received the report of the interviewing panel, its principal analyst, organisational development branch, prepared an information decision report for the Commission’s consideration. This information decision report was endorsed by the assistant chief executive officer, organisational development of the Commission and it recommended the appointment of the applicant who was subsequently appointed by the Commission on the ground that in the opinion of the Commission that applicant had the most merit of all the applicants interviewed for the position that was advertised. In the result, the respondent was not appointed. On 7 February 2005 the Commission wrote to the respondent notifying her that her application was unsuccessful.

Relevant constitutional and statutory framework

In terms of Article 87(1) of the Constitution, the Public Service Commission is responsible for the appointment, promotion, transfer, termination of appointment, dismissal and disciplinary control of the public service and it shall have such other functions as may be provided by Act. The relevant Act as earlier mentioned is the Public Service Act 1977.

Section 2 of the Act defines the expression “contract officer” to mean an officer engaged by the Public Service Commission under a contract of employment for a fixed period or periods of time. The term “officer” is then defined in the same provision to include a contract officer. Section 6, as far as relevant, then provides:

“(1) All appointments to the public service shall be made in accordance with this Act.

(2) ........

(3).........

(4) Subject to the provisions of this Act, the Commission shall in making appointments to the public service , have regard to the need to maintain and develop an efficient career service based on the recruitment of applicants adequately qualified for the exacting requirements of the service, but no appointment to the public service shall be made unless the Commission is satisfied that the person appointed has clearly more merit for the position to be filled than any officer who is qualified and available for the position, and for the purposes of this section merit shall be determined in accordance with sub-section (5) of section 7 of this Act.”

Section 7(5) which provides the criteria for assessing the merit of an applicant to a position in the public service provides:

“(5) For the purposes of this Act, the merit of an officer for promotion shall be determined by:

(a) work experience and competence shown in performance of duties previously carried out by him; and

(b) personal qualities, characteristics, and attributes relevant to the position to be filled; and

(c) relevant educational or other qualifications:

Provided that, where two or more officers who are applicants for a vacancy are adjudged to be equal in merit for promotion, having regard to the matters specified in the foregoing provisions of this subsection, regard shall be given to seniority.”

On reading s.6 and s.7(5) together, it is clear that the criteria for determining the merit of an applicant for promotion are the same criteria to be used by the Commission for determining the merit of an applicant for appointment to a position in the public service. These legislative requirements clearly relate to the decision making function of the Commission when making appointments to positions in the public service.

Section 55 of the Act which relates specifically to the appointment of contract officers provides:

“(1) The Commission may from time to time appoint contract officers to fill any post in the public service.

(2) No appeal may be made in respect of any such appointment as a contract officer.

(3) The terms and conditions of every contract of employment of a contract officer shall be reduced to writing and executed by the Commission for and on behalf of the Government and by the contract officer.

(4) Subject to the terms of the contract of employment with the Government this Act and any regulations made or deemed to be made thereunder shall apply to all contract officers except that, notwithstanding any other provision of this Act, no contract officer shall have any right of appeal under this Act in respect of any appointment, promotion, transfer, classification or grading.”

Counsel for the Public Service Commission in their written submissions point out that the terms and conditions of employment of a contract officer are determined by contract and a contract officer may negotiate the terms and conditions of his contract of employment with the Commission. These terms and conditions would include termination, review and renewal of the contract.

The position of assistant chief executive officer, corporate service, in the Ministry of Foreign Affairs and Trade is a second level position in the public service. It is a contract officer position as counsel for the Commission told the Court. In terms of s.55 A of the Public Service Amendment Act 1998, the Public Service Commission in pursuance of any policy of Cabinet may from time to time determine that any position or class of positions within the public service shall be positions to be filled by contract officers. Counsel for the Commission have told the Court that following the statutory amendment in 1998, second level positions in the public service such as assistant chief executive officer positions were made contract positions. This followed an institutional strengthening program in the public service to create a performance oriented top level of the public service and to enhance accountability in the service.

It should also be mentioned here that the Public Service Act 1977 makes certain distinctions between positions in the public service which are contract officer positions and positions which are not. One of these distinctions is that appointments made by the Public Service Commission to contract officer positions are not subject to any right of appeal whereas appointments made to other positions are subject to a right of appeal. This does not include the appointments to the public service of non-officers like probationers, temporary employees or wage workers for which no right of appeal is provided. What this means, if the argument by counsel for the Public Service Commission is correct that decisions of the Commission making appointments to contract officer positions are not amenable to judicial review, is that appointments made by the Commission to such positions would be legally immune. The reason is that such appointments are also not subject to any right of appeal and there is no other legal recourse for an unsuccessful applicant who is dissatisfied with a decision of the Commission not to appoint him or her. This is one of the points that was stressed by counsel for the respondent in opposing the argument for the Commission.

Is a decision by the Public Service Commission to make an appointment to a contract officer position in the public service amenable to judicial review

In making an appointment to a contract officer position under the Public Service Act 1977, the Public Service Commission is performing a decision making function pursuant to the power given to it under s.55 of the Act to appoint contract officers to fill any post in the public service. Such a function would be a public function. In my opinion the performance of that public function is amenable to judicial review. Parliament has laid down in s.6 (4) and s.7 (5) of the Public Service Act 1977 the criteria to be followed and applied by the Commission in assessing the merit of an applicant for appointment to a position, including a contract officer position, in the public service. It is the duty of the Court in the exercise of its supervisory jurisdiction to ensure that the requirements laid down in the Act by Parliament to be applied when making appointments to contract officer positions in the public service are observed and that the decision to appoint which was reached was arrived at according to law. The remedy provided by law to enable the Court to perform that duty is judicial review. In saying this, I am not in any way suggesting that in this case the Public Service Commission did not apply or properly apply the legislative criteria for making appointments to positions in the public service or that its decision was not arrived at according to law. That is not an issue in these proceedings. What is in issue here is whether the decision made by the Commission to appoint someone else and not the respondent to the contract officer position of assistant chief executive officer, corporate service, in the Ministry of Foreign Affairs and Trade is amenable to judicial remedy.

From what has been said that I am not able to accept the argument by counsel for the Public Service Commission that it is the intention of Parliament to be gathered from the provisions of the Public Service Act 1977 that a decision by the Commission to make an appointment to a contract officer position in the public service is not judicially reviewable. With respect, I cannot find such a parliamentary intention in the Act. If the argument by counsel is right, it would be tantamount to saying that it is the intention of Parliament that even if a decision to make an appointment to a contract officer position was reached without due regard to the criteria laid down by Parliament itself, such a decision cannot be judicially reviewed to bring it in line with the expressed will of Parliament. The decision is legally immune. That cannot be the intention of Parliament. If one refers to the criteria laid down for the making of appointments to positions in the public service, including contract officer positions, they are expressed in mandatory terms. Section 6 (4) of the Act provides that in making appointments to the public service the Commission shall have regard to the need to maintain and develop an efficient career service based on the recruitment of applicants who adequately qualified. Section 6 (4) then goes on to provide that no appointment to the public service shall be made unless the Commission is satisfied that the appointment is necessary and that the person appointed has clearly more merit than any other officer who is qualified and available for the position. Section 6 (4) then concludes that for the purposes of this section merit shall be determined in accordance with the provisions of s.7 (5). If one refers to s.7 (5), it provides that the merit of an officer shall be determined by the criteria set out in paragraphs (a), (b) and ( c) of that provision. Then in the proviso to s.7 (5), it is there provided that where two or more officers who are applicants for a vacancy are adjudged to be equal in merit, regard shall be given to seniority. By the repeated use of the word shall in s.6 (4) and s.7 (5), it is clear that the legislature has expressed itself in mandatory terms and that it is quite serious about the matter. I am therefore of the respectful view, that an appointment made to a contract officer position without due regard to the legislative requirements laid down by Parliament is amenable to judicial review.

To further support their argument that a decision by the Public Service Commission to make an appointment to a position of contract officer is not judicially reviewable, counsel for the Commission submitted that the Public Service Act 1977 makes a clear division between employees in the public service who are non-contract officers and employees who are contract officers. It was then said that the employment of non-contract officers is governed by public law and the employment of contract officers is governed by private law. As I understand the argument by counsel for the Commission, the employment of non-contract officers being governed by public law is amenable to judicial review whereas the employment of contract officers being under private law is not amenable to judicial review.

With respect, the employment by the Public Service Commission of a person as a contract officer would involve a two stage process. At the first stage, the Commission has to make a decision whether or not to appoint a particular person to a contract officer position. When the Commission makes its decision to appoint a particular person to such position, then the second stage arises and it involves the making of a contract of employment between the Commission acting on behalf of the Government and the person appointed. It is the first stage of that process which the respondent has challenged by way of judicial review. So the issue is whether the decision by the Commission not to appoint the respondent but to appoint someone else to the contract position in question is amenable to judicial review. The second stage of the process has not arisen in respect of the respondent because she was not appointed and therefore the Commission did not have to consider entering into a contract of employment with her. Thus no contract of employment has come into existence between the Commission on behalf of the Government and the respondent.

To further answer the question whether the decision by the Commission not to appoint the respondent but to appoint someone else to the contract position in question is amenable to judicial review, I will refer to some of the English authorities which appear relevant. In the first of these authorities which is the case of Cocks v Thanet District Council [1983] UKHL 1; [1983] 2 AC 237, the plaintiff had applied to the Thanet District Council, which is the local housing authority, for permanent accommodation but the Council refused his application and provided him with temporary accommodation. The plaintiff then brought a private law action against the Council as defendant seeking a declaration, mandatory injunction and damages. The defendant Council opposed the proceedings taken by the plaintiff claiming that the plaintiff should have moved for judicial review instead of proceeding by a private law action. At the High Court, the Judge held that the plaintiff was entitled to proceed in his private law suit. On a leapfrog appeal to the House of Lords, it was held that the plaintiff should have proceeded by judicial review. Lord Bridge who delivered the leading judgment, with which the other Law Lords concurred, said at pp 292-293:

“[It] is necessary to analyse the functions of housing authorities under the Housing (Homeless Persons) Act 1977. These functions fall into wholly distinct categories. On the one hand, the authority are charged with decision-making functions. It is for the housing authority to decide whether they have reason to believe the matters which will give rise to the duty to inquire or to the temporary housing duty. It is for the housing authority, once the duty to inquire has arisen, to make the appropriate inquiries and to decide whether they are satisfied, or not satisfied as the case may be, of the matters which will give rise to the limited housing duty or the full housing duty. These are essentially public law functions. The power of decision being committed by the statute exclusively to the housing authority, their exercise of power can only be challenged before the Courts [by judicial review]..... On the other hand, the housing authority are charged with executive functions. Once a decision has been reached by the housing authority which gives rise to the temporary, the limited or the full housing duty, rights and obligations are immediately created in the field of private law. Each of the duties referred to, once established, is capable of being enforced by injunction and the breach of it will give rise to a liability in damages. But it is inherent in the scheme of the Act that an appropriate public law decision of the housing authority is a condition precedent to the establishment of the private law duty.”

In the next case of Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1990] 1 Med. L.R. 328, Nourse L J in the English Court of Appeal said at p. 332:

“In order that there may be no doubt about the matter, I will add that if a practitioner wishes to question an initial decision by the committee not to accept his application to be included on their list of doctors, he must in that case take proceedings for judicial review. At that stage no contract had come into existence and the practitioner’s only right is a public law right to have his application properly considered. There is the same two-stage process as there was in Cocks v Thanet District Council [1983] 2 AC 286, albeit that there the private law rights and duties which arose at the second stage were statutory and not contractual. At pp 292-293 Lord Bridge of Harwich said:

‘Once a decision has been reached by the housing authority which gives rise to the temporary, the limited or full housing duty, rights and obligations are immediately created in the field of private law. Each of the duties referred to, once established, is capable of being enforced by injunction and the breach of it will give rise to a liability in damages. But it is inherent in the scheme of the Act that an appropriate public law decision of the housing authority is a condition precedent to the establishment of the private law duty.”

Similarly in the present case, an appropriate public decision of the committee is a condition precedent to the creation of the contract and the private law rights and duties arise which under it.”

Neill L J in the same case said at pp. 330:

“Had the FPC (Family Practitioner Committee) at the outset declined to include Dr. Roy’s name on the medical list, Dr. Roy would have had no contractual remedy, but he could have tested the lawfulness of the decision of the FPC by seeking judicial review. At that stage, he had a public right to have his application considered by the FPC in accordance with the law. But once a contract came into existence between the FPC and Dr. Roy, rights and duties were created in the field of private law.”

The passages which I have cited from Cocks v Thanet District Council [1983] 2 AC 286 and Roy v Kensington and Chelsea and Westminister Family Practitioner Committee [1990] 1 Med. L.R. 328 were cited with approval by Lord Lowry in Roy v Kensington and Chelsea and Westminister Family Protection Committee [1992]1 AC 624 when that case reached the House of Lords. All these cases were cited by counsel for the Public Service Commission and I am grateful to them for their industry.

The public law/private law divide as discussed and applied in the English cases just cited is now very much part of English administrative law: see the leading English text in this area of the law Judicial Review of Administrative Action (1995) 5th ed by de Smith, Woolf and Jowell pp 155-201. However, this dichotomy has not been accepted in New Zealand: see the New Zealand text Judicial Review (1991) by G D S Taylor at paragraph 2.024 at p. 45. I need not in this case go into the question of whether the public law/private law divide should be applied in Samoa. I am, for the purposes of these proceedings, content to apply it as it was sought by counsel for the Commission without apposition from counsel for the respondent who really had very little time to prepare a meaningful reply but nonetheless generously consented to counsel for the Commission proceeding with their strike out motion. The issue will have to be confronted and resolved at some time, perhaps in another relevant case.

The facts of R v East Berkshire Health Authority, ex parte Walsh [1984] 3 A11 ER 425, another English case cited by counsel for the Public Service Commission, distinguishes that case from the present case. In that case, the East Berkshire Health Authority which was a public authority suspended and then dismissed one of its employees who was employed under a contract of employment as a senior male nursing officer. Following his dismissal, the employee sought judicial review of his dismissal. One of the grounds on which judicial review was sought by the employee was that there had been breaches of the rules of natural justice in the procedures leading up to his dismissal. The Health Authority raised as a preliminary point whether it was appropriate for the employee to question his dismissal by bringing proceedings for judicial review. In the Court of Appeal, it was held that the employee was not entitled to bring proceedings by way of judicial review to question his dismissal; he should have proceeded in private law under his contract of employment which gave him private law rights.

The difference between that case and the present case is that in the present case no contract of employment has come into existence between the Public Service Commission on behalf of the Government and the respondent because she was not appointed to the contract position that was advertised. So no contractual issue, which will be of a private law nature, has arisen. The present respondent is also not bringing her motion for judicial review in the context of a contract of employment because no such contract has come into existence. The respondent’s motion for judicial review is directed at the decision of the Public Service Commission not to appoint her but someone else. That decision contains a public law element and was made before any contract of employment which may give rise to private law rights came into being. In fact up to now there is still no contract of employment between the Government and the respondent simply because she was not appointed.

From the English cases which have been cited, I am of the opinion that the argument by counsel for the Commission that the decision by the Commission not to appoint the respondent is not amenable to judicial review does not take into account the fact that when an appointment is made to a contract position in the public service, what is involved is a two stage process. At the first stage the Commission would be carrying out a decision making role as to which of the applicants to a contract officer position which has been advertised should be appointed. In carrying out that role, the Commission would be performing a public function pursuant to the power given to it under s.55 of the Public Service Act 1977 to appoint any contract officers to fill any post in the public service. The performance of that public function requires the Commission to comply with the legislative criteria laid down in the Act for making appointments to the public service and to act according to law. It is a process which creates public rights and duties and attracts judicial review which is a public law remedy. Once an appointment is made the second stage of the two stage process comes into operation. This involves the negotiation and formation of a contract of employment between the Commission on behalf of the Government and the applicant who has been appointed. The creation of a contractual relationship between the Government and the successful applicant gives rise to rights and obligations in private law, and judicial review being a public law remedy would not be appropriate. A remedy if required would have to be in private law. The respondent’s motion for judicial review is directed at the first but not the second stage of the two stage process already mentioned. The second stage which gives rise to private law rights and obligations was not reached in respect of the respondent because she was not appointed and therefore no contract of employment has come into existence.

Decision

For the foregoing reasons the strike out motion is dismissed.

CHIEF JUSTICE