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Supreme Court of Samoa |
IN THE SUPREME COURT OF SAMOA
HELD AT APIA
IN THE MATTER of an Application for extraordinary remedies under Part XIX of the Supreme Court (Civil Procedure Rules) 1980)
BETWEEN
FERILA LOKENI-LEPA
of Vaitele-uta, Public Servant.
APPLICANT
AND
PUBLIC SERVICE COMMISSION,
a Constitutional Authority established under Part VII of the Constitution.
RESPONDENT
Counsel: L T Malifa for applicant
R Wulf and S Rimoni for respondent
Hearing: 21 December 2005; 3 March 2006
Judgment: 30 March 2006
JUDGMENT OF SAPOLU CJ
Proceedings
The present proceedings follow on from the judgement of this Court in Public Service Commission v Ferila Lokeni-Lepa (2005) WSSC 27 (judgement delivered on 25 November 2005) in which a motion by the present respondent to strike out the application for judicial review by the present applicant was dismissed. These proceedings are concerned with the determination of that motion for judicial review.
Position under review
The present applicant is a foreign affairs officer in the Ministry of Foreign Affairs and Trade (MFAT) and the present respondent is the Public Service Commission (PSC) established under Article 84 of the Constitution. The position to which these proceedings relate is that of assistant chief executive officer, corporate services, Ministry of Foreign Affairs and Trade.
The said position is a second level position in the public service and in terms of the Public Service Act 1977 as amended by s.55A of the Public Service Amendment Act 1998, it is a contract officer position. The position was advertised in the public service official circular of 18 March 2004 and re-advertised in the public service official circular of 1 April 2004. On 14 April 2004, the applicant submitted her application for the position. The position was again re-advertised in the public service official circular of 10 September 2004 and on 22 September 2004 the applicant submitted a second application. In the public service official circular of 17 November 2004 the position was again re-advertised. It is not clear whether the applicant submitted a separate application for that advertisement. As the affidavit evidence shows, twelve people applied for the position but only seven of them were short-listed for interviews. Two of the applicants who were short-listed later withdrew so that only five applicants remained for interviews. To avoid any possible confusion with the other applicants for the position, I will hereinafter refer to the present applicant for judicial review as Mrs. Lepa.
Selection criteria for position
The job description for the position sets out, inter alia, the duties for the position and the recommended selection criteria. The selection criteria for the position were:
(1) Demonstrated ability to undertake customer based research and identify needs clearly in relation to corporate services division.
(2) Demonstrated ability to formulate appropriate services and assess the extent to which those services fulfil identified needs
(3) Demonstrated ability to effectively plan and manage fixed resources especially human and financial.
(4) Demonstrated ability to lead and encourage the development of public sector reforms for service quality improvement.
(5) Demonstrated ability to plan, organise and evaluate the work of others in order to achieve defined targets/outputs.
(6) Demonstrated ability based on at least 7 years of relevant work experience at the senior management level.
(7) Minimum qualification of a Bachelor’s Degree in management, economics, accounting or any relevant discipline including CPA.
All these selection criteria are shown in the job description as 'essential'. They are based on the criteria provided in s.7 (5) of the Public Service Act 1977 for determining the merit of an applicant to a position in the public service as required by s.6 (4) of the Act.
Relevant constitutional and statutory provisions
The PSC, as already mentioned, is established under Article 84 of the Constitution and it consists of three members who are appointed by the Head of State on the advice of the Prime Minister. One of these members is to be appointed as chairman. Article 87 of the Constitution then sets out the functions of the PSC as the employment arm of government. Clause (1) thereof, which is the relevant provision, provides:
'(1) Subject to the provisions of clause (3), the Public Service Commission shall be responsible for the appointment, promotion, transfer, termination of appointment, dismissal and disciplinary control of the Public Service and shall have such other functions as may be provided by Act.'
As it appears from Article 87 (1), the function of making appointments to the public service, which is the relevant function in these proceedings, has been entrusted by the Constitution to the PSC. The 'Act' referred to in Article 87 (1) is the Public Service Act 1977 which makes provisions on how the PSC is to carry out its function of making appointments to the public service. Section 6 of the Act, as far as relevant, 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 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 appointment is necessary and 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 subsection (5) of section 7 of this Act.'
Section 7 (5) of the Act sets out the criteria for assessing merit and it 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.'
Section 55 of the Act which relates to the appointment to the public service of contract officers then provides, as far as relevant:
'(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.'
As mentioned earlier, the position of assistant chief executive officer, corporate services, in the MFAT is a contract officer position. In terms of s.55, there is no right of appeal to an appointment made to such a position. This explains why Mrs Lepa has chosen to bring these proceedings by way of judicial review.
The interviewing panel
There is no express provision in the Constitution or the Public Service Act 1977 for the appointment of a panel to interview applicants to a position in the public service but it is a longstanding practice for the PSC to appoint a panel to interview such applicants and to make a recommendation for appointment. This practice seems to be based on practical necessity and there was no dispute that it is within the powers of the PSC.
As mentioned earlier, seven applicants for the position in question were short-listed for interviews. Two of those applicants later withdrew and five remained for interviews. The PSC appointed an interviewing panel, which consisted of the chief executive officer of the MFAT as chairperson, the chief financial controller of Samoa Tel, and the assistant chief executive officer, executive contract management division of the PSC. Before the interviewing panel were the seven selection criteria included in the job description of the position as advertised and other relevant material. The panel were to assess each applicant’s merit on the basis of those criteria. Also before the interviewing panel were assessment forms. On 25 January 2005 the panel conducted its interviews. A points system was used to assess each of the applicants on each of the selection criteria. Each member of the panel made his/her own assessment using the points system. These were later put together in a document described as the 'Panel’s Assessment' a copy of which was produced by the PSC to the Court.
The 'Panel’s Assessment' shows that when the individual assessments made by each of the members of the interviewing panel are added together, the applicant who was subsequently appointed by the PSC (the appointee) scored the highest aggregate of points with Mrs Lepa second. However, if the assessments are taken individually, two members of the panel including the chairperson scored Mrs Lepa with the highest aggregate of points with the appointee second. The third member of the panel scored the appointee the highest with Mrs Lepa second. Based on the assessments of the majority, the panel recommended in its selection report to the PSC that Mrs Lepa be appointed. It should be mentioned here that on five of the seven selection criteria the majority of the panel scored Mrs Lepa the highest aggregate of points with the appointee second. On one of the selection criteria she drew with the appointee. And on the criteria of required minimum qualifications the appointee scored the highest aggregate of points with Mrs Lepa fifth.
The decision by PSC
According to the affidavit of Matautia Uefa Ropati, a member of the PSC, when the PSC received the selection report of the interviewing panel, it requested an internal information decision report (ID Report) from its staff for its consideration. This is routine practice by the PSC regarding recruitments to the public service. According to Mr Ropati, the purpose of the ID Report is to review recruitment against the legislation and regulations of the public service and the policies and procedures of the PSC that are in effect at the time. In this case, the ID Report was prepared by VR Levy the principal analyst, organisational development branch for the PSC, and was endorsed by her superior, the assistant chief executive officer, organisational development branch.
In the ID Report, the principal analyst refers to the provision of the Public Service Act 1977 which sets out the criteria for determining merit for appointment to a position in the public service and the selection criteria related to the position in question. The principal analyst then states that the appointee has the highest aggregate of points, which exceeds by forty five points the aggregate of points for Mrs Lepa. This was based on the scores of all three members of the interviewing panel being added up together. She also states that even though two members of the panel scored Mrs. Lepa higher than the appointee, the appointee still exceeds all other applicants in terms of having met all the selection criteria, which are shown as essential. She further states that Mrs Lepa does not meet the selection criteria number 7 which is the minimum qualification requirement for the position. I am not sure about what is meant by 'This criteria by weight is given second equal importance with criteria 4' which is demonstrated ability to lead and encourage the development of public sector reforms for service quality improvement. The ID Report then recommends that the PSC hold a decision on the appointment to be made whilst the chairperson of the interviewing panel be called in to discuss with the PSC the recommendation by the panel in light of Mrs Lepa not meeting selection criteria no. 7 and having scored the second highest aggregate of points. Alternatively, the ID Report recommends that if the first recommendation is not accepted, then the appointee is recommended for appointment. I have referred in some detail to the ID Report as it forms one of the specific grounds of the motion for judicial review.
The PSC did not call in the chairperson of the interviewing panel to discuss the panel’s recommendation as suggested by its principal analyst but proceeded at its meeting of 1 and 3 February 2005 to deliberate on the appointment to be made. At that meeting, according to the affidavit of Mr Ropati, the PSC considered the selection report by the interviewing panel and the ID Report. Mr Ropati also deposes in his affidavit that the PSC in its deliberations had regard to the need to maintain and develop an efficient career service based on recruitment of applicants adequately qualified for the exacting requirements of the public service, and that the PSC had to be satisfied that the applicant appointed to the position had clearly more merit for the position before an appointment was made. Mr Ropati further deposes in his affidavit that the PSC’s determination of merit was in accordance with each applicant’s work experience and competence shown in the performance of duties previously carried out, relevant personal qualities and characteristics, and relevant educational or other qualifications. In other words, Mr Ropati is saying that in its deliberations the PSC had regard to the requirements for making an appointment provided in ss.6 (4) and 7(5) of the Public Service Act 1977.
Mr Ropati further deposes in his affidavit that after consideration of the report by the interviewing panel and the ID Report, the PSC noted that Mrs Lepa did not meet one of the essential criteria, namely, the minimum qualification of a Bachelor’s degree in management, economics, accounting or any relevant discipline including CPA. In the opinion of the PSC this is a crucial requirement for the position given the technical and specialised nature of some of its duties. It is also mentioned that the PSC had access to the personal files of those applicants who were already employed in the public service or have been employed in the service. This must have included the personal file of Mrs Lepa. The PSC also had access to the application forms for the position. Mr Ropati then says that the PSC was also mindful that the applicant had been acting as assistant chief executive officer, corporate services, MFAT for a period of fourteen months while that position was vacant and she was only paid a partial higher duty allowance because she was unable to perform some of the key duties for the position being the management of the human resources of the MFAT. A different senior officer performed those duties. In terms of the selection criteria for the position under review, management of human resources would come under criteria no. 3 of demonstrated ability to effectively plan and manage fixed resources especially human and financial.
It is then stated in Mr Ropati’s affidavit that the PSC was not satisfied that Mrs Lepa had more merit for the position advertised than any other applicant. The reasons being Mrs Lepa did not show a demonstrated ability to perform the human resource management duties for the position and she did not have the minimum qualifications required for the position. It is further stated that the PSC did not appoint the appointee because she was the highest ranked applicant on an aggregate marks approach but because she met all the essential criteria. These criteria reflect the criteria for determining merit for appointment provided in s.7 (5) of the Act as required by s.6 (4).
I must point out here that Mrs Lepa in her affidavit of 20 December 2005 deposes that she has performed and have previously carried out all of the duties and responsibilities of the position under review inclusive of those of the management of human resources. This is in direct conflict with what Mr Ropati says in his affidavit that Mrs Lepa was not able to perform the duties of human resources management when she was acting as assistant chief executive officer, corporate services, MFAT, and those duties were performed by a different senior officer. As this conflict could not be resolved on the basis of the affidavits alone, I called for oral testimonies from both parties. On 3 March 2006, when oral testimonies were to be called and cross-examined, counsel for Mrs Lepa told the Court that he and his client have decided not to call any oral testimony but would cross-examine any witness to be called by the PSC to give oral testimony. The PSC then called Faumausili Dr Matagialofi Luaiufi who is the chief executive officer of the PSC. After she confirmed the affidavit which she had filed, she was cross-examined by counsel for Mrs Lepa. Faamausili confirmed what Mr Ropati says in his affidavit. She says that the duties of management of human resources are a very important aspect of the position in question and that Mrs Lepa was not managing the human resources of the MFAT at the time she was acting assistant chief executive officer, corporate services, MFAT. That work was carried out by another senior officer of the ministry. In view of this oral testimony which impressed me as reliable and credible, I have decided to accept what Mr Ropati says in his affidavit as opposed to what Mrs Lepa says in her affidavit.
Grounds of motion for judicial review
The motion for judicial review is based on a number of grounds. These are:
it is then said that the PSC acted illegally, unlawfully and improperly under Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. Counsel for Mrs Lepa in his submissions did not elaborate on how the PSC might have acted illegally, unlawfully and improperly in terms of Council of Civil Service Unions v Minister for the Civil Service. Mrs Wulf as senior counsel for PSC, in her submissions pointed out that the first three grounds of review defined in that case by Lord Diplock are illegality, irrationality and procedural impropriety. Those grounds of review were adopted by this Court in Keil v Land Board et al [2000] WSSC 41 (21st December 2000). I need not go into the question of whether all the grounds of the motion, as already stated, are aptly described as 'errors of law' as that is not an issue in these proceedings.
The remaining grounds of the motion are:-
Ground 1 of the motion, as elaborated in (a) to (e), is expressly stated to be error of law. There is then the assertion that the PSC acted illegally, unlawfully and improperly under Council of Civil Service Unions v Minster for the Civil Service [1985] AC 374. As correctly pointed out by Mrs Wulf for the PSC, the grounds of review defined by Lord Diplock in Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374 at pp 410-411 are illegality, irrationality and procedural impropriety. A fourth ground, namely, proportionality mentioned by Lord Diplock is not in issue in these proceedings. Even though there is a clear overlap between the concept of error of law and the grounds of illegality, irrationality and procedural impropriety, I need not in this judgment explore the full extent of that overlap. The fact that there is an overlap should be apparent from what follows. I also need not deal with the question of whether grounds 1 (a) to (e) are all aptly described as errors of law. I will proceed on the assumption that they are as alleged on behalf of Mrs Lepa.
As for grounds 2, 3, 4 and 5 of the motion, it is not clear whether they are based on the concept of error of law or on the grounds of illegality, irrationality and procedural impropriety with which the concept error of law overlaps. I have decided to deal with grounds 2,3, 4 and 5 on the basis of illegality, irrationality and procedural impropriety as that is the modern classification of the grounds upon which administrative action is subject to control by judicial review. They are also the grounds on which senior counsel for the PSC has dealt with the motion for review in her submissions.
The concept of error of law is described in Judicial Review of Administrative Action (1995) 5th ed by de Smith, Woolf and Jowell where it is started at p. 286:
'The concept of error of law includes the giving of reasons that are bad in law or (where there is a duty to give reasons) inconsistent, unintelligible or substantially inadequate. It includes also the application of a wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, exercising a discretion on the basis of any other incorrect legal principles, misdirection as to the burden of proof, and wrongful admission or exclusion of evidence, as well as arriving at a conclusion without any supporting evidence. Error of law also includes decisions which are unreasonably burdensome or oppressive. Thus whether or not the drawing of an inference from the primary facts, or the application of a statutory term to the facts and inferences drawn therefrom, is held or assumed to be a matter of fact (or fact and degree) or a matter of law, the Court may still hold the decision erroneous in point of law if any of the above defects is present.'
In the same text, the learned authors state in para 9-025 at p. 448:
'If the tribunal is obliged to observe the rules of evidence, in the past the rejection of relevant and admissible evidence was considered a mere ‘error of law,’ but nowadays it may constitute denial of a fair hearing according to the requirements of procedural fairness.'
In Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph, the learned author states in para 2.4.1 at pp 815-816:
'In Peters v Davison [1999] 2 NZLR 164, the Court of Appeal confirmed what Cooke J had suggested 16 years earlier in Bulk Gas Users Group Ltd v Attorney General [1983] NZLR 129 that error of law by a public authority was a ground of review ‘in and of itself.’
The expression ‘error of law’ encapsulates illegality as a ground of review. It is no longer legally relevant (as it once was) to ask whether the error caused the decision-maker to exceed its jurisdiction. All a plaintiff need show is that the decision-maker erred and that error was material (the error must influence the 'outcome of the decision). ‘The error has to be one which affected the actual making of the decision and affected the decision itself’: Peters v Davison [1999] 2 NZLR 164 per Thomas J at p.183.'
Further in para 21.4.2 at pp. 816-817 the learned author states:
'An administrative authority commits a reviewable error of law if it: (a) acts in bad faith; (b) makes a decision which it has no power to make; (c) breaches the rules of natural justice; (d) mis-construes its statute and ‘asks the wrong question’; (c) relies upon irrelevant considerations; or (f) disregards mandatory relevant considerations. An unreasonable finding of fact may also support a finding of error of law, as may inadequacy of reasons or a failure to make a finding of fact on a key issue for decision.'
In Judicial Review (1991) by G DS Taylor, the learned author states in para 14.09 at p.319:
'All grounds, other than fraud and bad faith, are referable to error of law in one or other of the Edwards v Bairstow [1955] UKHL 3; [1956] AC 14 manifestations. Thus, decisions beyond power as to extent have been described as in error of law. The same is true of failure to consider a material fact, giving wrong weight to a relevant factor, breach of jurisdiction, and breach of natural justice. The modern ground of unreasonableness is a direct application of the second Edwards v Bairstow manifestation.'
To assert that a body has committed an error of law requires explanation not only as to how the error of law was committed but also why the alleged error is an error of law. This will facilitate understanding of what an applicant for review really has in mind.
The modern classification of the grounds for judicial review into illegality, irrationality and procedural impropriety is defined in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 by Lord Diplock where His Lordship states at pp. 410-411:
'By illegality... I mean that the decision-maker must understand correctly the law that regulates his decision-making power and give effect to it... By ‘irrationality’ I mean what can now be succinctly referred to as ‘Wednesbury unreasonableness’... It applies to a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it... I have described the third head as ‘procedural impropriety’ rather than the failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision.'
The above passage is a succinct statement of the modern grounds for judicial review as the detailed discussions of those grounds in Judicial Review of Administrative Action (1995) 2nd ed by de Smith, Woolf and Jowell and Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph show. It is recommended that anyone who is interested in the subject should refer to and study the relevant parts of those texts.
I will now deal in turn with each of the grounds for review in the order in which they are stated in the motion. This is also the order in which senior counsel for the PSC has dealt with those grounds in her submissions.
Discussion of grounds of the motion
1 (a) Wrongly determining the issue of merit under ss.6 (4) and 7 (5) of the Public Service Act 1977
The way in which this ground of the motion is worded immediately invites problems because it brings into question the distinction between review and appeal. Review is a creature of the common law and is concurred with the correctness of the decision-making making process or the manner in which a decision was made. For instance, in Chief Constable of the North Wales Police v Evans [1982] 3 A11 ER 141, Lord Brightman said at p.151:
'Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which a decision was made.'
An appeal on the other hand is a creature of statute and is concerned with the correctness of the decision itself. At times this distinction becomes blurred and very difficult to draw where the ground for review is based on illegality or irrationality: see, for instance, Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph at pp 737-739. Here, the ground for review is not based on illegality or irrationality but simply says that the PSC wrongly determined the issue of merit under ss. 6 (4) and 7 (5) of the Public Service Act 1977. In other words this ground is expressly directed at the merits of the decision by the PSC to appoint the appointee and not Mrs Lepa to the position in question which is a contract officer position. But the words 'merits of a decision' or 'merits of a determination' are not really appropriate to a motion for review but to an appeal. The usual way to challenge the merits of a decision of a statutory body or tribunal is not judicial review but an appeal if there is a right of appeal provided by statute. In this case, s.55 of the Act provides that no appeal may be made in respect of an appointment to a contract officer position. So the decision by the PSC is not appeallable on the merits.
Thus the way in which ground 1 (a) of the motion is worded is in appropriate. It is therefore dismissed.
1(b) Relying on the individual applicant assessment form, Form 4A, of Christian Fruean, one of the members of the interviewing panel knowing full well the same was altered, changed and /or amended by someone else and not the said Christian Fruean.
In his affidavit of 15 November 2005, Christian Fruean also known as Pepe Christian Fruean and who was one of the members of the interviewing panel confirms that the changes and alterations on the individual applicant assessment in question, Form 4A, are his own and not those of anyone else. The allegation that the individual applicant assessment form, Form 4A, of Christian Fruean was altered, changed and/or amended by someone else and not the said Christian Fruean is therefore completely without foundation. Likewise, the allegation that the PSC relied on the said Form 4A knowing full well that the same was altered, changed and/or amended by someone else and not the said Christian Fruean is also completely without foundation. The Form 4A presented to the PSC with Mr Fruean’s name on it correctly represents Mr Fruean’s assessments of the applicants for the position.
It is also alleged that the absence of any initials to or explanation for the changes to the said Form 4 with the name of Mr Fruean on it is non-compliance with the practices and procedures of good administration. Again I see no substance in this allegation. In any event this allegation does not demonstrate an error of law which is the overall basis of ground 1 of the motion.
Ground 1(b) of the motion is therefore also dismissed.
1(c) Acting upon the secret confidential information decision report (the ID Report) of one VR Levy which report is not part of the administrative law process required for the position of assistant chief executive officer, corporate services, Ministry of Foreign Affairs and Trade (MFAT).
As mentioned earlier, it has been a longstanding practice of the PSC to appoint a panel to interview applicants for recruitment to a position in the public service even though there is no express provision in the Constitution or the Public Service Act 1977 for such a panel. The purpose for this seems to be to facilitate the function of the PSC of making appointments to the public service. It would have been quite an onerous and time consuming task for the PSC if it were also to conduct the interviews for every appointment to be made to the public service given that there are numerous such appointments to be made from time to time.
In practice, as it was also done in this case, an interviewing panel at the conclusion of interviews for a position would submit to the PSC a report together with a recommendation for appointment. Such a report and recommendation are not submitted to the applicants who have been interviewed for them to make any comments. As also mentioned earlier, according to Mr Ropati in his affidavit, when the PSC receives a selection report from an interviewing panel, it is routine practice for the PSC to request an internal information decision report (ID Report) from its staff for its consideration. This would be an in-house report. The purpose of such an ID Report is to review recruitment against the legislation and regulations of the public service and the policies and procedures of the PSC at the time.
In this case, when the PSC received the selection report of the interviewing panel with its recommendation for appointment, that report was referred for an ID Report to VR Levy, the principal analyst, organisational development branch of the PSC. The ID Report that was prepared by VR Levy was endorsed by her superior, the assistant chief executive officer, organisational development branch of the PSC before it was submitted to the PSC for its consideration. As correctly pointed out by senior counsel for the PSC, the ID Report did not contain any information which took the PSC’s consideration outside the perimeters of ss. 6 (4) and 7 (5) of the Act or any new information about any of the applicants for the position in question which may have warranted further enquiries or consultations. The ID Report is an analysis and explanation of the selection report and score sheets by the interviewing panel for the information of the PSC. It also contains two recommendations. The first of these recommendations is for the PSC to hold a decision on the appointment to be made until it has discussed with the chairperson of the interviewing panel the recommendation by the panel in light of Mrs Lepa not meeting selection criteria no. 7 and having scored the second highest aggregate of points. The alternative recommendation if the first was not accepted, was for the appointee to be appointed.
What is not so clear about the present ground of the motion is whether it means that the PSC could not consider or act on the ID Report that was prepared by a member of its staff or whether it means that the PSC if it did consider or act on the ID Report took into account an irrelevant consideration. If what is meant is that the PSC could not consider or act on the ID Report then I do not agree. The PSC is a constitutional body with constitutional and statutory functions to perform. Given the number and extent of those functions, it would be impracticable for the PSC to perform all of them without relying on the expertise and assistance of its staff members. It is a matter of administrative necessity. In fact one would query the justification for the PSC having a staff with the necessary experience and expertise in public service matters if it cannot rely on that experience and expertise in the proper discharge of its functions and the exercise of its powers. It was therefore in order for the PSC to ask for an ID Report from VR Levy its principal analyst, organisational development branch.
If what is meant by ground 1 (c) is that the PSC if it did consider or act on the ID Report took into account an irrelevant consideration then again I do not agree. In the first place, it is clear from the affidavit of Mr Ropati that the PSC did consider the ID Report but it is not so clear to what extent the PSC acted on that Report as there are matters raised in the Report on which the PSC clearly did not act. For instance the PSC did not appoint the appointee because she was the highest ranked applicant on an aggregate marks approach and the PSC did not act on the first recommendation in the ID Report to hold a decision on the appointment to be made until it has discussed with the chairperson of the interviewing panel the panel’s recommendation.
On the question of whether the ID Report contained any irrelevant consideration which the PSC took into account in arriving at its decision, I accept the submission by counsel for the PSC that the ID Report did not contain or raise any irrelevant consideration. The Report refers to the relevant provision of the Act which sets out the criteria for determining merit for appointment. It also provides an analysis and explanation of relevant matters contained in the report and score sheet of the interviewing panel. These are relevant considerations. The Report also does not contain any factual information which took the PSC’s consideration outside the ambit of ss. 6(4) or 7(5) of the Act or any new information about any of the applicants for the position in question which would have required the PSC to carry out further enquiries or consultations.
I have therefore come to the conclusion that ground 1 (c) of the motion should also be dismissed. It is accordingly dismissed.
1(d) Acting upon other and 'additional matters' that are not part of the administrative law process required for the position of assistant chief executive officer, corporate services, MFAT, as evident in paragraphs 2-6 of the memorandum of 21 February 2005 by the PSC to Mrs Lepa.
The memorandum of 21 February 2005 referred to in ground 1(d) of the motion was a memorandum from the chief executive officer of the PSC to Mrs Lepa in reply to her memorandum of 11 February 2005. In paragraph 2 of the said memorandum of 21 February 2005, it is stated by the chief executive officer of the PSC that Mrs Lepa and the other applicants for the position who did not meet all the essential selection criteria should not have been granted the opportunity of an interview. The reason why it was possible for that to happen is also explained in paragraph 2 of the said memorandum.
As it appears from the affidavit of Mr Ropati who is a member of the PSC, some of the factors which the PSC took into account in arriving at its decision on the appointment that was made were that Mrs Lepa did not meet the minimum qualification requirement for the position which was the essential selection criteria no. 7. Mrs Lepa is also said not to be able to perform some of the key duties for the position, namely, the human resources management duties. This factor is related to essential selection criteria no. 3. These essential selection criteria were two of the seven essential criteria which were before the interviewing panel and were used by the panelists for the purpose of their respective assessments of the merits of each applicant for the position. These criteria, and in particular criteria 3 and 7, are based on the criteria provided in s.7(5) of the Public Service Act 1977 for determining merit for an appointment made to the public service as required by s.6(4). So what is said in para 2 of the memorandum of 21 February 2005 about Mrs Lepa not being able to meet all of the essential selection criteria, in particular essential selection criteria 3 and 7, is a very relevant factor to be taken into account by the PSC in the appointment process. Therefore, those factors were not outside the perimeters of the 'administrative law process' relating to the appointment that was made by the PSC.
Paragraph 3 of the memorandum of 21 February 2005 refers to the ID Report that was prepared by VR Levy a staff member of the PSC and the contents of that Report. I have already explained why the PSC is entitled to consult and rely, if necessary, on the expertise of its staff members. I have also explained that the ID Report does not contain any irrelevant factor which the PSC might have taken into account in arriving at its decision. So the ID Report does not fall outside the perimeters of the 'administrative law process' for the appointment that was made.
Parts of paragraph 4 of the memorandum of 21 February 2005 reiterate that the PSC took into consideration the fact that Mrs Lepa did not perform the human resources management duties of the position at the time she was acting assistant chief executive officer, corporate services, MFAT. The PSC was clearly well aware of this matter as it appears from previous correspondence between the PSC and the MFAT. I am satisfied that Mrs Lepa was also aware of those correspondence as it affected the amount of the higher duty allowance that was paid to her for being acting assistant chief executive officer, corporate services, MFAT. Demonstrated ability to effectively plan and manage fixed resources especially human and financial was also one of the essential selection criteria and Mrs Lepa must have been questioned by the interviewing panel on that criteria. In terms of the statutory criteria for determining merit for appointment provided in s. 7 (5) of the Act, this particular factor would relate to competence or relevant work experience if not both. So what is said in paragraph 4 of the said memorandum is a relevant factor and therefore does not fall outside the perimeters of the 'administrative law process' for the position.
Paragraphs 5 and 6 of the said memorandum refer to the appointment of another senior officer of the MFAT to carry out the human resources management duties of the position in question while Mrs Lepa was acting in that position. This is related to what has already been said in relation to paragraph 4 and therefore also comes within the perimeters of the 'administrative law process' for the appointment that was made.
For the foregoing reasons, ground 1(d) of the motion is also dismissed.
1(e) Failing to make the appointment to the position in question upon the recommendation of the interviewing panel
The function of making appointments to the public service is entrusted by Article 87 of the Constitution to the PSC. That is further provided under PART III of the Public Service Act 1977. There is no legal requirement that the PSC is bound to accept a recommendation by a panel it has appointed to conduct an interview of applicants to a position in the public service. This was accepted by counsel for Mrs Lepa. It will be an abdication of its constitutional function and contrary to the provisions of Articles 87 of the Constitution if an appointment made by the PSC to the public service was held to be invalid simply because the PSC failed to make an appointment recommended by an interviewing panel. But this seems to be what ground 1(e) is saying even though counsel for Mrs Lepa did acknowledge that the PSC is not bound by a recommendation for appointment by an interviewing panel. There is no reviewable error of law here.
Ground 1(e) of the motion is therefore dismissed.
2. In not accepting and relying upon the interviewing panel’s report dated 26 February 2005 the PSC acted unreasonably under the Wednesbury principles.
This ground of the motion clearly comes under ‘irrationality’ which is one of the grounds for judicial review stated in Council of Civil Service Unions v Minster for the Civil Service [1985] AC 374 by Lord Diplock at pp. 410-411 in a passage already cited in this judgement. Counsel for the PSC also relies on the some passage in her submissions.
Irrationality in terms of Wednesbury unreasonableness is discussed in Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph where the learned author states at p.832:
'Wednesbury unreasonableness equates with senselessness. Lord Diplock said a decision is irrational if it is ‘so outrageous in its ’defiance of logic or of accepted moral standards that no sensible ’person who had applied his mind to the question to be decided could have arrived at it.’ A plaintiff had to show ‘something overwhelming’. In local authority rating cases, the Court of Appeal has adopted the full range of expressions for Wednesbury unreasonableness: ‘outside the limits of reason’, ‘so outrageous in its defiance of logic or of accepted moral standards’, ‘a pattern of perversity’ and ‘so absurd that he must have taken leave of his senses.’ For the House of the Lords, Lord Diplock’s requirement of senselessness was a fundamental limitation’ on the power of judicial review.’
The Courts typically employ Wednesbury principles when reviewing the decisions of government, Ministers, elected councils or commercial organisations, or where the impugned decision is pre-eminently about policy or involves political or subjective evaluation.'
As the present ground of the motion is expressly placed on the basis of Wednesbury unreasonableness I will approach it with the above passage in mind. Mrs Wulf for the PSC also dealt with the present ground of the motion on that basis.
Now the ‘Panel’s Assessment’ of the five applicants who were interviewed for the position shows that when the individual assessments based on all the essential selection criteria by all three panelists are added together, the appointee scored the highest aggregate of points with Mrs Lepa second. But when the assessments are taken individually, two of the panelists including the chairperson scored Mrs Lepa with the highest aggregate of points with the appointee second. The third panelists scored the appointee with the highest aggregate points with Mrs Lepa second. The panel then recommended to the PSC that Mrs Lepa be appointed based on the assessments of the majority.
In terms of s.7(5) of the Act there are generally three criteria for determining merit for appointment. These are (a) relevant work experience and competence, (b) relevant personal qualities, characteristics and attributes, and (c) relevant educational or other qualifications. The seven essential selection criteria for the position in this case were all based on the criteria for determining merit provided in s.7 (5). However, s.7(5) does not spell out what weight should be given to each of those criteria in making an appointment to a particular position. It would seem such matter depends on the circumstances of each case.
Referring again to the ‘Panel’s Assessments’, the majority of the panelists scored Mrs Lepa with the highest aggregate of points on five of the essential selection criteria with the appointee second while the third panellist scored the appointee with the highest aggregate of points on the same criteria with Mrs Lepa second. On one of the essential selection criteria, all three panellists scored both Mrs Lepa and the appointee with the same aggregate of points. On essential selection criteria no.7 which was the minimum qualification requirement all three panelists scored the appointee with the highest aggregate of points with Mrs Lepa fifth.
According to the affidavit of Mr Ropati, when the PSC considered the report of the interviewing panel and the routine ID Report that was prepared by one of its staff members, the PSC noted that Mrs Lepa did not meet one of the essential selection criteria, namely, the minimum qualification requirement whereas the appointee met all of the criteria. The minimum qualification requirement of a Bachelor’s degree in management, economics, accounting, or any relevant discipline including a CPA was seen by the PSC as a crucial requirement given the technical and specialised nature of some of the duties for the position in question. The PSC also noted that Mrs Lepa was not able to perform some of the key duties of the position, namely, the human resources management duties for the position which were relevant to essential selection criteria no.3. The PSC also noted that the appointee was the highest ranked candidate on an aggregate marks approach but did not appoint the appointee to the position on that basis. Mr Ropati states that the PSC appointed the appointee because she met all of the essential selection criteria and she has more merit than any other applicant for the position as opposed to Mrs Lepa who did not met all of those criteria.
Mr Ropati also states in his affidavit that the holder of the position of assistant chief executive officer, corporate services, MFAT, is responsible for the management of the ministry’s financial, technical and human resources and is the point of contact between the ministry and the PSC regarding the management of human resources and the ministry and the Ministry of Finance regarding the ministry’s budget and other financial matters. Mr Ropati also states that the holder of the position is responsible for the ministry’s 66 local and overseas staff, assets in Samoa and in the overseas diplomatic missions, and a current budget of well over $14 million.
It was submitted for Mrs Lepa that because the majority of the panelists scored her highest on five of the essential selection criteria, she therefore has more merit for the position than any other applicant including the appointee. Senior counsel for the PSC, on the other hand, submitted that this majority merit approach is flawed because it could result in a person being appointed to the public service although such person does not meet all the criteria for determining merit and therefore does not have full competency to perform all of the duties and responsibilities for the position.
I think what must be borne in mind is that the function of making appointments to the public service is entrusted by law to the PSC. A report by an interviewing panel with a recommendation for appointment could be helpful to the PSC in the discharge of its appointment function, but that function still lies with the PSC. So the crucial matter is the decision by the PSC, whether it is rational or irrational in terms of Wednesbury unreasonableness which is expressly relied upon in the present ground of the motion for review.
The interviewing panel in this case was, of course, not unanimous. The members of the panel disagreed in their assessments. The majority of the panel in their assessments were in favour of Mrs Lepa and the minority was in favour of the appointee. Section 7(5) of the Act provides the criteria for determining merit for appointment to a position in the public service. However, it does not spell out what weight is to be given to each such criteria in a particular case. This must be a matter of judgment for the PSC. Section 7(5) also does not spell out how the question of merit is to be determined between an applicant who scores the highest points in the assessments of a majority of two of an interviewing panel but does not meet one of the selection criteria and an applicant who meets all of the selection criteria and scores the highest aggregate of points in the assessment of the minority of the panel. Such a situation must again call for the exercise of judgement on the part of the PSC. After all, if one looks closely at ss.6 and 7 of the Act, the body which has the responsibility of determining merit for appointment to a position in the public service is the PSC and not an interviewing panel. And the PSC, as it was entitled to do, determined in this case that the appointee has more merit than any other applicant for the position. In doing so, the PSC did not take a purely mechanical approach. In this situation the Court should be cautious about substituting the exercise of judgment by the PSC with its own judgment.
The real question then is whether, in terms of the present ground of the motion, the decision by the PSC is irrational in the sense of Wednesbury unreasonableness. The answer must clearly be no. It cannot be said that the decision by the PSC is 'so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it.' Nor can it be said that the decision by the PSC is 'outside the limits of reason,' or 'a pattern of perversity,' or is 'so absurd that the PSC must have taken leave of its senses.' Such descriptions of what amounts to Wednesbury unreasonableness are far removed from this case.
Grounds 2 of the motion is therefore dismissed.
3. In making its decision dated 7 February 2005 appointing the appointee and not Mrs Lepa the PSC took into account irrelevant and improper considerations as in the secret confidential information report (ID Report) of VR Levy and certain other matters listed in paragraphs 2-6 of the PSC’s memorandum dated 21 February 2005.
With respect, the use of the word 'secret' in this ground is inappropriate because of the connotations of that word in the present context. The report by VR Levy was not a 'secret report' but a report requested by the PSC from its staff as a routine matter to analyse and check the report of the interviewing panel.
The present ground would come under ‘illegality’ which is one of the grounds for judicial review stated in Council of Civil Service Unions v Minister of the Civil Service [1985] AC 374 by Lord Diplock at pp 410-411 in a passage already cited in this judgement. The matters which are relevant to this ground of the motion have already been discussed n relation to ground 1(c) and 1(d). I need not repeat that discussion here. Suffice to say that the ID Report prepared by VR Levy and paragraphs 2-6 of the memorandum of 21 February 2005 from the chief executive officer of the PSC to Mrs Lepa do not contain any irrelevant consideration which was taken by the PSC in arriving at its decision not to appoint Mrs Lepa but the appointee. The contents of the affidavit of Mr Ropati which have also been discussed in this judgement particularly in relation to ground 1(d) show the considerations that were taken into account by the PSC in arriving at its decision.
Ground 3 of the motion is therefore also dismissed
4. In making its decision relying on the said secret confidential information decision report (ID Report) and those other matters in paragraphs 2-6 of its memorandum dated 21 February 2005 instead of the report of the interviewing panel, the PSC breached the rules of natural justice in failing to make known or available those maters to Mrs Lepa for their rebuttal and their explanation.
This ground in terms of the classification of the grounds for judicial review provided by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 would come under ‘procedural impropriety’.
In effect what counsel for Mrs Lepa is saying here is that the PSC should have given a copy of the in-house ID Report by VR Levy, a staff member of the PSC, to his client for her to rebut and explain before the PSC made its decision not to appoint her but the appointee. Likewise, what is said in paragraphs 2-6 of the memorandum of 21 February 2005 by the chief executive officer of the PSC to Mrs Lepa about the latter not having performed the human resources management duties of the position in question when she was acting in that position should have been made known to Mrs Lepa to rebut and explain before the PSC made the decision not to appoint her but the appointee. The failure of the PSC to do so was a procedural impropriety.
As already mentioned, it is routine practice for the PSC to request from its staff members an ID Report on the report of a panel which had conducted the interviews of the applicants for a position in the public service. The purpose of an ID Report, according to the affidavit of Mr Ropati, is to review the matters contained in an interviewing panel’s report against the public service legislation and regulations and the PSC’s policies and procedures that are in place. The ID Report that was prepared by VR Levy contains no new factual information that is prejudicial to Mrs Lepa or any other applicant for the position. I have already referred to the contents of that Report and the comments therein. The real issue here is whether the PSC should have made known the ID Report to Mrs Lepa before it made its decision on the appointment that was made.
I can see practical difficulties that will arise in the appointment process to the public service if it is right that the PSC should have made known a copy of the ID Report to Mrs Lepa before it made its decision on who to appoint. It would mean that every other applicant who was interviewed for the position could have asked for a copy of the ID Report before the PSC made its decision on who to appoint in order to have the opportunity to rebut and explain anything in the Report that he or she does not like. Because an ID Report provides an analysis or explanation of what is in the report and score sheets of an interviewing panel, the disclosure of the ID Report would necessarily lead to disclosure of what is in the report and assessment sheets of the interviewing panel. And the applicants for a position in the public service who do not like what is in the report of the interviewing panel would ask for a copy of that report too so that they could rebut or explain what they do not like in the report before the PSC makes a decision. Thus disclosure of the ID Report would necessarily lead to disclosure of the contents of the report by an interviewing panel for rebuttals and explanations even before the PSC has made a decision on who to appoint to a position. This will make the selection and appointment process to positions in the public service onerous and cumbersome.
I have already referred to the reasons for the decision of the PSC as set out in the affidavit of Mr. Ropati. It may also be said that the recommendation in the ID Report to appoint the appointee instead of Mrs Lepa should have been made known to Mrs Lepa before the PSC made its decision. If this is right, then in principle it may be said that the recommendation to the PSC in the report of the interviewing panel to appoint Mrs Lepa should also have been made known to the applicants who were not recommended by the panel before the appointment was made. There should be no difference in principle between a recommendation in an ID Report by a staff number of the PSC who was appointed by the PSC and a recommendation in a report of an interviewing panel which was also appointed by the PSC. I can see difficulties that will arise if this is accepted.
There is authority that a Minster is under no obligation to disclose advice he receives from his department in the course of making up his mind whether to grant a planning application: Bushell v Secretary of State for the Environment [1980] UKHL 1; [1981] AC 75 per Lord Diplock at p.102. In R v Secretary of State for Health, ex parte United States Tobacco International Inc. [1992] QB 353, Taylor LJ said at p.371:
'One can understand and respect the need for Ministers to preserve confidentiality as to the in-house advice they receive on administrative and political issues from their civil service staff.'
In Daganayasi v Minister of Immigration [1980] 2 NZLR 130 which was concerned with an application for judicial review of a deportation order issued by the Minister of Immigration based on a factually misleading report prepared by a medical referee appointed by the department, Cooke J (as he then was) held that the decision of the Minister was based on a mistake of fact. The misleading and prejudicial report of the medical referee should have been disclosed to the applicant before the deportation order was made to allow her the opportunity of commenting on the report.
The cases just cited refer to a Minister. I have not been able to find a case which is similar to the present one which involves an appointment made by a Public Service Commission to a position in the public service. However, an ID Report is a routine measure taken by the PSC to check a report from an interviewing panel. The ID Report in this case does not contain any fresh factual information that was misleading or prejudicial to Mrs Lepa. It contains explanations of the report and assessments that were made by the interviewing panel. It also contains recommendations to the PSC based on those explanations. In all the circumstances, I have come to the view that there was no procedural impropriety in the PSC not disclosing the ID Report to Mrs Lepa before it decided on the applicant to be appointed. The PSC has since voluntarily disclosed the Report for the purpose of these proceedings.
As for the matters in paragraph 2-6 of the memorandum of 21 February 2005 from the chief executive officer of the PSC to Mrs Lepa, the PSC as it appears from previous correspondence with the MFAT was already aware that Mrs Lepa had not performed the human resources management duties for the position in question when she was acting in that position. The PSC was entitled to act on that knowledge of its own. Mrs Lepa, on the other hand, must also have known that she did not perform those duties because of the refusal of the PSC, shown in previous correspondence to the MFAT, to pay her a full higher duty allowance due to the fact that she did not perform the human resources management duties for the position. It was therefore not really necessary for the PSC to re-inform Mrs Lepa of what she already knew.
Even though Mrs Lepa in her affidavit of 20 December 2005 deposes that she performed the human resources management duties for the position contrary to what Mr Ropati for the PSC says in his affidavit, Mrs Lepa and her counsel decided not to call any oral testimony to assist the Court in resolving the conflict in the affidavit evidence. Only the PSC called oral testimony. I have accepted that oral testimony as credible and reliable.
Ground 4 of the motion is therefore also dismissed.
Senior counsel for the PSC pointed out in her submissions that there was and is no established practice by the PSC whereby it invariably makes appointments to the public service upon recommendations of interviewing panels. She referred to the affidavit of Mr Ropati which confirms that there is no such established practice and that the PSC makes decisions on appointments to the public service on an individual basis. There was also no evidence produced on behalf of Mrs Lepa to show that the PSC has an invariable practice of making appointments to the public service upon recommendations of interviewing panels.
Senior counsel for the PSC also correctly submitted that for a representation or promise to create a legitimate expectation on the part of a claimant, the representation must come from the decision-maker to the claimant. The memoranda by the chief executive officer of the MFAT were not the memoranda of the PSC. Thus, if those memoranda gave rise to a legitimate expectation on the part of Mrs Lepa, then the PSC cannot be responsible for an expectation created by someone else’s memoranda.
Likewise, the PSC is not aware of how Mrs Lepa obtained access to the report of the interviewing panel which should have been confidential. Thus if someone had given the report of the interviewing panel to Mrs Lepa before the PSC made its appointment, and that report raised a legitimate expectation on the part of Mrs Lepa, then it is not the PSC which created the expectation. And the PSC should not be responsible for a legitimate expectation it did not create.
I accept all of these points raised by counsel for the PSC. Ground 5 of the motion is therefore also dismissed.
For all the foregoing reasons, the motion for judicial review is dismissed. Counsel to file submissions as to costs in 14 days.
Before leaving this judgment, I must express my gratitude to counsel for the PSC for their well prepared and well researched submissions which I have found very helpful.
CHIEF JUSTICE
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