Dilbert v Public Serv Commn

• Jurisdiction: Cayman Islands
• Judge: (Collett, C.J.)
• Judgment Date: 07 January 1988
• Court: Grand Court (Cayman Islands)
• Date: 07 January 1988

Grand Court

(Collett, C.J.)

DILBERT

and

PUBLIC SERVICE COMMISSION and ATTORNEY GENERAL

N. Hill, Q.C. and J. Jenkins for the applicant;

R. W. Ground, Q.C., Attorney General, for the respondents.

Cases cited:

(1) Benn, ReUNK(1964), 6 W.I.R. 500, followed.

(2) Dunn v. R., [1896] 1 Q.B. 116; [1895–9] All E.R. Rep. 907, considered.

(3) Pett v. Greyhound Racing Assn. Ltd., [1969] 1 Q.B. 125; [1968] 2 All E.R. 545.

(4) R. v. Commr. of Police, ex p. TennantUNK(1977), 15 J.L.R. 79; 26 W.I.R. 457.

(5) R. v. South Australia (Governor)UNK(1907), 4 C.L.R. 1497, followed.

(6) Ridge v. Baldwin, [1964] A.C. 40; [1963] 2 All E.R. 66, followed.

(7) Rodwell v. Thomas, [1944] 1 K.B. 596; [1944] 1 All E.R. 700, considered.

(8) Sarran, ReUNK(1969), 14 W.I.R. 47, considered.

(9) Terrell v. Colonial Secy., [1953] 2 Q.B. 482; [1953] 2 All E.R. 490.

Legislation construed:

Grand Court (Applications for Orders of Mandamus, Prohibition, Certiorari and Habeas Corpus) Rules, r.3:

‘Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any enactment . . . .’

Public Service Commission Regulations, 1975, reg. 54, as amended by Public Service Commission (Amendment) Regulations, 1979, reg. 25: The relevant terms of this regulation are set out at page 37, lines 2–35.

Civil Procedure-certiorari-application for leave to apply-Grand Court may not review, nullify or revoke own previous order granting leave to apply for certiorari even if evident that application made out of time-reconsideration only by appeal to Court of Appeal

Administrative Law-public officers-dismissal-may seek prerogative order against Public Service Commission provided recommendation to dismiss not yet acted upon by Governor-once Governor”s decision made declaration only appropriate remedy

Administrative Law-judicial review-natural justice-right to legal representation-board of inquiry under Public Service Commission Regulations, 1975, reg. 54 not obliged to inform accused public officer of statutory right to legal representation though desirable to do so

The applicant applied for orders of certiorari and mandamus to (a) quash a recommendation of the Public Service Commission that she be dismissed from the public service, and (b) direct a re-hearing or, alternatively, her reinstatement. As a further alternative, she also sought a declaration that the proceedings held before the board of inquiry to investigate the charges made against her had been conducted in breach of the rules of natural justice.

The applicant was dismissed from the Civil Aviation Department for alleged misconduct. She had attended a training course in Barbados and upon her return home wrote a letter criticizing and complaining about the course to the director of the training school. He was offended by it and caused the matter to be taken up by her employers. As a result, she was charged with misconduct ‘serious enough to warrant dismissal’ and disciplinary proceedings were instituted against her under the Public Service Commission Regulations, 1975, reg. 54.

In accordance with this regulation, a public officer was appointed to hold an inquiry; he informed the applicant by letter of the date, time and place and invited her to bring any documents or witnesses in support of her case but made no mention of her statutory right to be legally represented at the hearing. She herself did not expressly ask for such representation.

The inquiry was held and its findings formed the basis for the recommendation from the Public Service Commission to the Governor that the applicant be dismissed. Acting upon this advice the Governor ordered the termination of her appointment and she was informed of this decision by letter on January 31st, 1986. Her subsequent appeal to the Governor was rejected. She then successfully applied on June 23rd, 1987 to the Grand Court for leave to apply for an order of certiorari to quash the decision of the Public Service Commission and its confirmation by the Governor and consequently brought the present proceedings. During the proceedings a late application was made for the prerogative orders to issue against the Governor instead of the Public Service Commission but was not granted.

The applicant submitted that the inquiry had been conducted in breach of the rules of natural justice and, therefore, the decision to dismiss her was not valid. She alleged that when she was invited to the hearing she was told that she did not need to be represented at that stage and that she would have an opportunity to be represented and to call witnesses on a subsequent occasion. She also alleged that she was never invited to cross-examine the witness who testified against her.

The respondents submitted in reply that (a) the applicant”s request for leave to apply for certiorari had been made out of time (the statutory time-limit being six months) and consequently leave should not have been granted; (b) her dismissal had ultimately been the decision of the Governor (and not the Public Service Commission) and the court was not empowered to issue prerogative writs against the Governor; (c) the proceedings of boards of inquiry instituted under reg. 54 were not subject to the rules of natural justice as they functioned on behalf of the Crown and to allow judicial review on these grounds would be tantamount to placing a fetter upon the Crown”s right to dismiss at pleasure; and (d) in any event, the inquiry had not been conducted in breach of those rules because the applicant”s allegations were unfounded in fact.

Held, dismissing the application:

(1) As leave had been granted by a judge of the Grand Court for the appellant to apply for an order of certiorari, the Grand Court itself had

no jurisdiction to review, nullify or revoke that leave on the basis that the application for it had been made out of time; any such challenge could only be made by appeal to the Court of Appeal. For this reason, the court was bound to treat the grant of leave on which the present proceedings were based as valid (page 38, line 33 – page 39, line 10).

(2) The court would not, however, issue prerogative orders against the Public Service Commission in pursuance of that leave. Although the Commission”s powers were limited to recommending the dismissal of a public officer, prerogative orders would lie against it if it did not follow the statutory procedures for dismissal specified in the Public Service Commission Regulations, reg. 54 or if, in following those procedures, it failed to observe the rules of natural justice. But the applicant had failed to establish that the Commission or its board of inquiry had acted improperly since the court was satisfied that her allegations were unfounded and the board”s failure to inform her of her right to be legally represented did not in any event constitute a breach of natural justice. It would nonetheless be desirable for a future board to inform a public officer of this right before an inquiry was commenced (page 43, lines 19–40; page 45, lines 31–36).

(3) Moreover, the Commission”s recommendation in favour of dismissal had already been acted upon by the Governor at the time the present proceedings were started. Not only did this have the consequence that the Governor”s decision could not be questioned by judicial review in the courts of the Cayman Islands (because prerogative orders would not lie against the Governor as the Crown”s representative in the Islands) but it also meant that it was too late to issue prerogative orders against the Commission, since this would amount to an indirect attempt to challenge the Governor”s decision. The only remedy available in appropriate circumstances, once the Governor had made his decision, would be a declaration but as no impropriety had been disclosed no declaration could be granted (page 41, line 16 – page 42, line 17; page 46, lines 10–20).

COLLETT, C.J.: On July 16th, 1987 a notice of motion was
filed in this court on behalf of the applicant, Ailean Dilbert, pur-
15	suant to leave granted by Hull, J. on July 8th, 1987 seeking orders
of certiorari and mandamus directed against a purported decision
of the Public Service Commission ordering the dismissal of the
applicant from the Public Service for alleged misconduct. The
court is asked to quash that decision and to direct a re-hearing or,
20	alternatively, the reinstatement of the applicant. As a further
alternative a declaration is sought that proceedings held before a
board of inquiry on December 6th, 1985 to investigate the
charges of misconduct were conducted in breach of the rules of
natural justice.
25	The brief history of this matter is that the applicant had been
employed in the public service of the Cayman Islands for some 11
years as an air traffic control assistant in the Civil Aviation
Department. Some time during 1984 she was selected to attend a
training course operated by the Air Traffic Control of Barbados
30	at which she had unhappy experiences. Having returned home
she wrote a personal letter to a Mr. Archer, the technical director
of the school, in terms which appear to have been highly critical
of the conduct of the school, its instructors and the applicant”s fel-
low students and which seem to have caused grave exception to
35	be taken by Mr. Archer. As a result, on September 19th, 1985,
the Director of Civil Aviation wrote a memorandum to the appli-
cant calling upon her to show cause under the Public Service
Commission Regulations 1975, reg. 54 why she should not be dis-
missed from the public service for (i) misconduct and (ii) breach
40	of Administrative

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