THE EASTERN CARIBBEAN SUPREME COURT
SAINT VINCENT AND THE GRENADINES
IN THE HIGH COURT OF JUSTICE
CLAIM NO. SVGHCV 2009/0367
BETWEEN:
JOSEPH DASILVA
Claimant
AND
THE CHAIRMAN AND MEMBERS OF THE PUBLIC SERVICE BOARD OF APPEAL
Appearances: Mr. Joseph Delves for the Claimant
Mr. P.R. Campbell Q.C. for the Defendants
2013: July 22
2014: August 5
JUDGMENT
Defendant
[1] THOM J.: Saint Vincent and the Grenadines being a multi-island State has a
total of five airports, being the ET Joshua Airport on the island of Saint Vincent
and airports on the Islands of Bequia, Mustique, Canouan and Union Island.
[2] On November 19, 2006 a light aircraft JB-VAX with the pilot and one passenger
departed the Canouan Airport around 6:30 pm destined for the ET Joshua
Airport. The air traffic control officers on duty in the central tower on the 1 pm to
7 pm shift were the Claimant Mr. DaSilva and Ms. Malaika Jones. Mr. James
Ollivierre another air traffic controller was scheduled to assume duty from 7 pm
to 11 pm.
[3] The estimated flying time between Canouan and ET Joshua Airport for a light
aircraft is approximately 25 minutes. The aircraft did not arrive at ET Joshua at
the scheduled time for arrival. None of the three air traffic controllers realized
that the aircraft had not arrived until approximately 9 pm. A search and rescue
operation was launched but neither the aircraft nor the passengers were found.
[4] An investigation into the disappearance of the aircraft was conducted. It is
common ground that none of the Officers more specifically Mr. DaSilva was
responsible or in any way contributed to the disappearance of the aircraft.
[5] As a result of the incident disciplinary charges were instituted against all three of
the officers pursuant to Section 3.27 of the Civil Service Orders which read as
follows:
“3.27 An officer will be liable to disciplinary action for any
misconduct including general misconduct to the prejudice of
discipline or the proper administration of Government business
and contravention of specific rules and regulations.”
[6] The charges against Mr. DaSilva read as follows:
(1) That you Mr. Joseph DaSilva Air Traffic Controller I I on the 19th
of November 2006 left the ET Joshua Airport control tower prior to the
end of your shift without being relieved leaving an ATC Cadet alone in
the tower in Contravention of Chapter 13 (13.3.4.33) of the Air Traffic
Services Operations Manual.
(2) That you Mr. Joseph DaSilva Air Traffic Controller I I, on the 19th
day of November 2006 by leaving the ET Joshua Airport control tower
prior to the end of your shift without being relieved and leaving an
inappropriately qualified controller as the sole controller on duty with
known traffic in the airspace, other than that which was in the traffic
circuit compromised the safety of the management of the ET Joshua
airspace.
(3) That you Mr. Joseph DaSilva, Air Traffic Controller I I, on the 19th
November 2006 prior to leaving the ET Joshua Airport control tower
failed to correctly hand over the air traffic situation to the controller left
in the tower thus compromising the safety of the management of the ET
Joshua airspace.
(4) That you Mr. Joseph DaSilva Air Traffic Controller I I, on the 19th
day of November 2006 failed in your duty to provide the requisite
supervision of the ATC Cadet on duty, thereby endangering the safety
of flight operations in the ET Joshua airspace.
(5) That you Mr. Joseph DaSilva Air Traffic Controller I I , on the 19th
day of November 2006 failed in your duty as the active controller to
adhere to standard air traffic control separation procedure by failing to
sequence aircraft J8-VAX to land thus endangering the safety of flight
operations in ET Joshua airspace.
(6) That you Mr. Joseph DaSilva Air Traffic Controller I I, on the 19th
day of November 2006 failed in your duty, as the active controller to
adhere to standard air traffic control separation procedures by providing
the required separation and sequencing between aircraft J8-VAX and
aircraft Ll 311 thus endangering the safety of flight operations in the ET
Joshua airspace.
[7] The disciplinary charges were referred by the Public Service Commission (the
Commission) to a tribunal of inquiry chaired by the Chief Magistrate. At the
completion of the inquiry the tribunal submitted a report to the Commission.
The Commission having reviewed the tribunal’s report imposed no sanction on
Mr. James Ollivierre, imposed a fine of $1,000.00 on Ms. Malaika Jones and
ordered the dismissal of Mr. Da Silva.
[8] Mr. DaSilva appealed to the Public Service Board of Appeal (the Board) on the
following grounds:
(1) No reason was given for his dismissal
(2) The Public Service Commission (PSC) appointed a Tribunal
to inquire into events surrounding the disappearance of an
SVG AIR aircraft on November 19, 2006. The Tribunal
conducted its hearing and made a report, yet the PSC opted to
ignore that report and findings and in so doing acted unfairly
and unjustly.
(3) The PSC subjected Mr. DaSilva to disciplinary proceedings
under Regulations 54(2) and (3) but yet purported to dismiss
him under Regulation 54(4). This procedure is improper,
contrary to the principles of natural justice, unreasonable, and
an abuse of power.
(4) The PSC and or the CPO did not have the power to dismiss
Mr. DaSilva under Regulations 54(4) in those circumstances.
Further the Commission failed to follow the procedures under
Regulation 54(2) and acted outside the scope of its powers.
(5) The punishment is unduly harsh and excessive given the
circumstances.
[9] The Board dismissed Mr. DaSilva’s appeal. Mr. DaSilva now seeks judicial
review of the decision of the Board and seeks several reliefs including an order
that he be returned to his post of Air Traffic Controller I I, damages and
costs.
[1 0] The grounds on which the claim for judicial review are based as follows:
(1) The decision to dismiss was in breach of the Civil Service
Orders and contrary to the constitution.
(2) The decision was vitiated by breach of natural justice and by
unreasonableness.
(3) The Board considered extraneous matters in its decision
making process.
(4) There was an unjustified breach of Mr. DaSilva’s legitimate
expectation that his disciplinary proceedings would be
conducted under Regulation 54(2) of Booklet 4 of the Public
Service Commission Regulations.
(5) There was no factual or evidential basis on which
misconduct could be founded and if there were the punishment
of dismissal was harsh.
[11] At the hearing of the claim for judicial review Mr. DaSilva did not pursue ground
1.
[12] It is a well established principle of law that in Judicial Review proceedings, the
Court does not exercise an appellate jurisdiction but rather the Court is
concerned with the decision making process of the Tribunal whose decision is
under review. The grounds on which the Court will do so were outlined by Lord
Dip lock in Council of Civil Service Unions v Minister for the Civil Service1 as
being illegality, irrationality or procedural impropriety. Procedural impropriety is a
very broad ground which includes breach of natural justice and unfairness.
SUBMISSIONS
EXTRANEOUS MATTERS
[13] Mr. Delves submitted that the Board took into consideration extraneous matters
in arriving at its decision. The extraneous matters to which Mr. Delves referred
are the Tribunal’s Report and the contents of the personal file of Mr. Da Silva. It
is not disputed that prior to the commencement of the hearing of the appeal the
Chairman stated that he had examined the personal file of Mr. Da Silva and has
had seen some interesting things and he had brought them to the attention of the
Members of the Board.
[14] Mr. Delves referred to the case Marks v Minister of Home Affairs2 and
submitted that Mr. DaSilva was entitled to have notice of adverse facts likely to
influence the decision of the Board. Mr. Delves also relied on the case of
Wiseman v Boreman3 and the following statement of Lord Dening in Kanda v
Gouvernment of Ma/aya4
1 [1984]3 AER 935 at 950
2 [1984]35 WIR 109
3 [1963]3 AER 275
4 [1962] UKPC 9
“whoever has to adjudicate must not have evidence or
receive representation from one side behind the back
of the other. The court will not enquire whether the
evidence or representation did work ton his prejudice.
Sufficient that they might do so. The court will not go
into the unlikelihood of prejudice. The risk of it is
enough. No one who has lost a case will believe he
has been fairly treated if the other side has had access
to the judge without knowing.
. . . The Board finds itself in agreement with the view
expressed by Rigby J in these words: In my view the
furnishing of the findings of the Board of Inquiry to the
Adjudicating Officer appointed to hear the disciplinary
charges coupled with the fact that no such copy was
furnished to the Plaintiff, amounted to a denial of
natural justice as to entitle this court to set aside those
proceedings on this ground.
[15] Mr. Delves next submitted that only in rare and exceptional circumstances would
a Court countenance nondisclosure of irrelevant material considered by a
tribunal as in the case of Official Solicitor v K et al5, where the nondisclosure
concerned a confidential report in a wardship case involving a child. Disclosure
would have harmed the child and therefore was not in her best interest. Likewise
in Glenrov Clarke v Commissioner of Po/ice6 the Court held that it was in the
interest of national security that the subject report not be disclosed to the party.
In Mr. DaSilva’s case it is not a situation where the Board considered and then
withheld the irrelevant material because of national security or any bonafide
reason. Mr. Da Silva was simply not provided with the information. Mr. Delves
further submitted that the consequence of the Board taking irrelevant matters
into consideration, matters which Mr. DaSilva was not aware of, is that the
decision of the Board is a nullity. Mr. Delves relied on the cases of Barnwell v
The Attorney-GeneraF; and Ridge v Baldwin8.
[16] Mr. Delves next submitted that the decision being a nullity the Court reviewing it
is permitted to substitute its decision for that of the body which first determined
the matter in question being Mr. DaSilva’s dismissal.
[17] Mr. P.R. Campbell QC submitted that the remarks of the Chairman were made
on the 26th June 2009 when the Board convened on the first occasion. The
Board next convened on 17th July 2009 and there is no evidence that Mr. Da
Silva sought to ascertain from the Chairman at any stage of the proceedings
what he meant by those remarks. The Court therefore cannot speculate as to
what matters those words were meant to refer, nor can the Court draw any
inference whether favorable or unfavorable to the Claimant. Mr. Campbell Q.C.
further referred to Section 87(8) of the Constitution which provides for the Board
5 [1963] 3 AER 191
6 [1994] 31 JLR 570
7 [1993] 49 WIR 88
8 [1963] 2 AER 66
to regulate its proceedings notwithstanding any vacancy or absence of any
member, and submitted that if the framers of the Constitution have sanctioned
the Board to make valid decisions even with the participation in its deliberations
of unauthorized persons, the framers did not intend that decisions of the Board
should be invalidated by reason of unspecified and unparticularised remarks of
the Chairman at a preliminary hearing, also in the absence of any concurrent or
subsequent complaint at those proceedings – See Sherman Me Nicholls v
Judicial and Legal Services Commission9.
Court’s Analysis
[18] Section 87 (6) of the Constitution makes provision for the Board to make
Regulations for the procedure to be followed in appeals. The only regulations in
effect are the Public Service Board of Appeal (Notification) Regulations. These
regulations provide that appeals to the Board are to be made in writing within
twenty (28) days from the date that the decision is addressed to the Officer and
must be addressed to the Chairman of the Board. The application must state the
decision appealed against and the grounds of the appeal.
[19] No regulations have been made in relation to the procedure for the hearing of
appeals.
[20] It is a well settled principle of law that tribunals such as the Board must observe
the principles of natural justice. The Board must act fairly.
[21] It is also a well settled principle of law that where a tribunal takes into account
matters in its decision making process of which the party affected was not aware
this would render the decision a nullity – Marks v Minister of Home Affairs and
Kanda v Gouvernment of Malaya. In Marks v Minister of Home Affairs one
of the reasons for the Court quashing the Minister’s decision to refuse the
renewal of the Appellant’s work permit was that although the Minister was not
required to give reasons for his decision he had a duty to act fairly and since he
had considered facts adverse to the renewal of the work permit which had not
been disclosed to the Appellant and the Appellant had not been given an
opportunity to make representations in response, the Court found that the
Minister had not acted fairly and that his decision was a nullity.
[22] In Kanda the issue before the Privy Council was whether the adjudicating officer
having had in his possession the Report of the Board of Inquiry which was not
provided to the Appellant Kanda rendered the decision to dismiss the Appellant a
nullity. The Court in finding that the dismissal was a nullity opined that:
g [2010] UKPC 6
“If the right to be heard is to be a real right which is
worth anything, it must carry with it a right in the
accused man to know the case which is made against
him. He must know what evidence has been given and
what statements have been made affecting him and
then he must be given a fair opportunity to correct or
contradict them. This appears in all the cases from the
celebrated judgment of Lord Loreburn, L.C. in Board
of Education v Rice [1911] A. C. at P. 182 down to the
decision of their Lordship’s Board in Ceylon
University v Fernando [1960] 1 WLR 223. It follows
of course, that the judge or whoever has to adjudicate
must not hear evidence or receive representations from
one side behind the back of the other. The Court will
not enquire whether the evidence or representations
did work to his prejudice. Sufficient that they might do
so. The Court will not go into the likelihood of
prejudice. The risk of it is enough. No one who has
lost a case will believe he has been fairly treated if the
other side has had access to the Judge without his
knowing.”
[23] I agree that where an allegation of consideration of extraneous matters is made,
the onus is on the party so alleging to identify the material which should not have
been considered. The party cannot simply without more suggest that the
decision is a nullity because it was reached with the consideration of unspecified
irrelevant material. This principle is illustrated in the case of R v Lancashire
County Council exparte Huddleston1o; and Cammack Chase v DC v Kel/y11.
In Cammack Chase v DC the Court refused to grant relief to prospective student
who was refused a discretionary maintenance award. The student had an
excellent academic and personal record so she could not understand why she
was unsuccessful. She was suspicious that something extraneous may have
influenced the Council’s decision but she was unable to specify what it might
have been.
[24] The case at bar can be distinguished from Cammack in that Mr. Da Silva has
specified the material which the Board had before it and which was not in his
possession.
[25] It also does not matter whether the comment was made by the Chairman at a
preliminary hearing of the matter or during the hearing of the matter. I agree that
on hearing the statement of the Chairman Mr. Da Silva through his Counsel
could have made a request for the material to be provided. What is critical is that
the Chairman and Members had in their possession material which was
considered by them and that material was not made available to Mr. Da Silva or
his Counsel. The Board being required to act fairly had a duty to provide Mr. Da
Silva with material which the Board had before it, and permit Mr. Da Silva to
respond to the information if he found it necessary to do so. Moreso it is not
disputed that the personal file of Mr. Da Silva contained adverse reports in
relation to other matters.
10 [1986]2 AER 941
11 [1978]1 WLR 1
[26] The appeal having been conducted in circumstances where the Board had
material before it which was not in the possession of Mr. Da Silva or his Counsel
and to which Mr. DaSilva could not respond, rendered the hearing of the appeal
unfair and this amounted to a procedural impropriety. On this basis Mr. Da
Silva’s claim for judicial review succeeds. Having so found it is not necessary for
me to consider the other grounds raised by Mr. Da Silva.
[27] In conclusion I find that the decision of the Board was unfair and a nullity and
that there should be a rehearing of the appeal before a differently constituted
Board with all material before the Board presented to Mr. Da Silva or access to
such material be granted to him at least one month before the hearing save and
except any privileged material. I have taken judicial notice that the Board is now
differently constituted than the Board which heard Mr. Da Silva’s appeal save
and except the Chairman. I have also taken into consideration the provisions of
Section 86 of the Constitution which makes provision for an acting appointment
to be made where for any reason a member is unable to exercise the functions
of the office.
ORDER
(i) Judgment is entered for the Claimant.
(ii) Certiorari is granted and the decision of the Public Service
Board of Appeal is quashed.
(iii) The matter is remitted for a rehearing of the appeal de novo
before a differently constituted Board of Appeal. The rehearing
shall take place within 3 months.
(iv) The Defendant shall pay the Claimant costs in the sum of
$7000 .
.. ~.
Gertel Thorn
High Court Judge