Governor v McLaughlin

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Taylor and Mottley, JJ.A.)
• Judgment Date: 08 August 2006
• Court: Court of Appeal (Cayman Islands)
• Date: 08 August 2006

Court of Appeal

(Zacca, P., Taylor and Mottley, JJ.A.)

GOVERNOR

and

McLAUGHLIN

A. Lynch, Q.C. and Ms. S.M. Look Loy, Crown Counsel, for the Governor;

R.D. Alberga, Q.C. and P.L.S. Simon for the respondent.

Cases cited:

(1) Boddington v. British Transp. Police, [1999] 2 A.C. 143; [1998] 2 All E.R. 203, referred to.

(2) Chief Const. (N. Wales) v. Evans, [1982] 1 W.L.R. 1155; [1982] 3 All E.R. 141, followed.

(3) Hoffmann v. South African Airways, [2001] 2 L.R.C. 277; (2000), 11 BCLR 1211, referred to.

(4) Jhagroo v. Teaching Serv. Commn.UNK(2002), 61 W.I.R. 510; [2002] UKPC 63, followed.

(5) Malloch v. Aberdeen Corp., [1971] 1 W.L.R. 1578; [1971] 2 All E.R. 1278, considered.

(6) Palacegate Properties Ltd. v. Camden London Borough Council, [2000] 4 P.L.R. 59; [2001] A.C.D. 23; (2000), 3 L.G.L.R. 18; 82 P. & C.R. 17, followed.

(7) R. v. Hull University Visitor, ex p. Page, [1993] A.C. 682; [1993] 1 All E.R. 97; [1993] I.C.R. 114, followed.

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

(9) Vine v. National Dock Labour Bd., [1957] A.C. 488; [1956] 3 All E.R. 939, distinguished.

Administrative Law-judicial review-review of void decision-declaration that decision of administrative body ‘void’ means ultra vires and unlawful, not null and of no effect-administrative decision giving rise to irreversible practical consequences remains effective even if declared void

Administrative Law-public officers-dismissal-dismissal of public officer by authorized person effective to remove from public service, even if void and in breach of statutory scheme-entitled to damages for wrongful termination but not for lost salary or pension

The respondent applied to the Grand Court for judicial review of the Governor”s decision to retire him on the ground that his office had been abolished.

The respondent was retired from his post in the Ministry of Agriculture, Environment, Communications & Works by the Governor as it was felt that the office could no longer be justified. However, the Government later advertised an equivalent post and ultimately decided against abolishing the position. The Grand Court (Graham, J.) dismissed the respondent”s application for leave to seek judicial review on the grounds that the office had been properly abolished and there had been no procedural irregularity. The proceedings in the Grand Court are reported at 2001 CILR 249.

On appeal, the Court of Appeal (Zacca, P., Rowe and Taylor, JJ.A.) held that, since the respondent had not been properly consulted, his dismissal had been procedurally unfair and in breach of reg. 29 of the Public Service Commission Regulations. It set aside the judgment of the Grand Court and granted a declaration that the Governor”s decision was void. However, the court declined to grant the respondent”s request for an order that he be reinstated, since this was no longer possible in practice due to the passage of time, and instead remitted the case to the Grand Court for the assessment of damages. The proceedings in the Court of Appeal are reported at 2002 CILR 576.

At the assessment hearing, the Grand Court (Smellie, C.J.) held that, since the decision to dismiss the respondent and the dismissal itself were void and of no effect, he remained a public officer, albeit not in his

previous post, and was entitled to his salary and other related payments for a reasonable period. It awarded damages of $409,624.31 and ordered the Governor to pay 12% of the respondent”s salary into the public service pension fund. The proceedings in the Grand Court are reported at 2004–05 CILR 515.

On appeal against these awards, the Governor submitted that the Grand Court”s method of calculating them was wrong since (a) the respondent did not remain employed in the public service following his dismissal, as the Court of Appeal”s declaration that the dismissal was void meant only that it was unlawful; (b) that the contractual relationship with the respondent had been brought to an end had been demonstrated by the Court of Appeal”s holding that reinstatement was impracticable and was not an appropriate remedy; and (c) in any event, the respondent had only claimed reinstatement and damages and had not sought a declaration that he remained in office despite the Governor”s decision.

The respondent submitted in reply that (a) he had continued in employment in the public service since the effect of the declaration was that the dismissal was a nullity and of no legal effect; (b) the Court of Appeal had not decided that he could not be reinstated to the public service, but had only refused to reinstate him to his particular post; and (c) he was therefore entitled to damages as if he had not been dismissed.

Held, allowing the appeal and remitting the case to the Grand Court:

(1) The respondent had not remained employed in the public service following the Governor”s decision to retire him and his subsequent dismissal. The decision to remove him from his post, since it had been made by an authorized person, was effective in law to remove him from the public service, even though it was invalid under the regulatory scheme. The declaration by the Court of Appeal that the dismissal was void meant, not that it was a nullity, but nothing more than that it was unlawful because the decision-maker had acted ultra vires his powers. In the context of the decision of an administrative body giving rise to practical consequences that could not be reversed, it was not appropriate to ascribe the same meaning to the word ‘void’ as was applied in, for example, a contract situation, and the Grand Court had erred in concluding that the effect of the declaration was that the respondent remained a public officer (paras. 6–10; para. 15; para. 44).

(2) The respondent was not entitled to be compensated as if he had remained in office, but only for the wrongful termination of his employment, and the case would be remitted to the Grand Court for re-assessment of damages on that basis. The failure to grant an order for reinstatement was a matter of judicial discretion, which could only be challenged by appeal, and the respondent would not be permitted to challenge the order indirectly by claiming his salary and pension as damages (para. 38; para. 40).

1 MOTTLEY, J.A.: On November 29th, 2002 in the Court of Appeal, the present respondent, Dr. McLaughlin, who was the appellant in that appeal, obtained a declaration that the decision of the Governor to retire him and his dismissal from the office of Administrative Officer Grade 1 in the Ministry of Agriculture, Environment, Communications & Works, consequent upon attempts to abolish this office, were void. He sought an order that he be reinstated. The Court of Appeal, however, declined to make that order. Instead of the order for reinstatement, the court concluded that the remedy available to Dr. McLaughlin was damages. The matter was remitted to the Grand Court for damages to be assessed. The Court of Appeal declined to make a finding whether, having regard to all the circumstances, the office of Dr. McLaughlin could be abolished or not. Damages were subsequently assessed by the Grand Court at $409,624.31. In addition, the Governor was ordered to make payment to the public service pension fund in respect of the monthly contribution of 12% of Dr. McLaughlin”s monthly salary. The Grand Court ordered that the Governor pay to Dr. McLaughlin his costs on an indemnity basis with respect to that part of the proceedings relating to the issue of liability for damages and on the standard basis with respect to the issue of damages. The costs were to be taxed. It is against these awards that this appeal has been launched.

Background

2 The facts leading to the purported abolition of the office, and the subsequent retirement from the public service consequent upon the abolition of the office, are set out in the judgment of the court below and the earlier judgment of this court. No useful purpose will be served by rehearsing them.

3 The assessment of damages took place over three days between July 26th and 28th, 2005. Dr. McLaughlin claimed unpaid salary and other loss. He alleged that, since the Court of Appeal had declared that his retirement was void, he remained a public officer, and, as such, was entitled to be compensated by being paid the salary attached to his post. He contended that no question of reinstatement arose because the court”s declaration that his dismissal was void meant that the decision to dismiss was of no effect. He asserted that he still continued to be employed in the public service and as such was entitled to his salary and all other payments that were attached to his salary. Counsel for Dr. McLaughlin contended that when this court declined to order reinstatement, the court meant reinstatement to the particular post that he held, not reinstatement to the public service. He argued that the effect of the declaration by the court that the decision was void meant that it was a nullity and of no legal effect and therefore Dr. McLaughlin continued to be employed in the public service.

4 Counsel for the Governor took issue before the Grand Court with the construction placed on the judgment of this court. In his points of...