PLAINTIFF WINS CASE AGAINST P.S. COMMISSION

Gisborne Herald, Volume LXXVI, Issue 22946, 14 May 1949, Page 6

PLAINTIFF WINS CASE AGAINST P.S. COMMISSION

(I\A.) WELLINGTON, May 13. Judgment for (he plantiff Cecil William Holmes, public servant, with 30 guineas costs and disbursements was given by Mr. Justico Gresson in Ihe Supreme Court today in an action which Holmes took against three members of the Public Service Commission —11. M. Campbell (chairman), G. T, Bolt and A, 11. O’Keefe.

Holmes had claimed the issue of a writ of injunction restraining the defendants as members of the commission from continuing the annulment of plaintiff's appointment in the public service. Plaintiff had also claimed a writ of certiorari for the removing order made by the defendants on December 23 annulling the plaintiff’s appointment in the public service in order that it might be quashed. Principles of Justice Violated

“The circumstances which, in my opinion, make the action of the commission a violation of the principles of natural justice may be summarised,” said His Honour. The commission, he said, was dealing with the case of a probationer, but not of a probationer who had been in the public service for over three years in respect of whom probation reports, which should have been made, had never been submitted. But such comment as had been made upon his work was highly favourable.

Since the period of probation expired he had been promoted, provisionally, to a more important position. “The notes the commission had regarding the applicant in relation to this position were that he was the only permanent applicant and had been employed as a unit director for some time, that he had proved himself an excellent man and his ‘appointment is recommended.'

“The commission in resolving upon the annulment of the plaintiff’s appointment in the public service,” His Honour continued, “did not act upon any consideration of the probation reports, which might well be a routine administrative matter, but acted after considering certain documents forwarded to it and ucon a report that the plaintiff was proposing to call a stop-work meeting.

No Opportunity for Reply

“The commission after such consideration decided upon the annulment of his appointment because of the ‘attitude of gross disobedience to authority which he had displayod’.”

The judgment continued: “This conclusion was arrived at without allowing the plaintiff any opportunity of challenging or explaining either the documents" or the report, nor any opportunity of dispelling by evidence or argument'the adverse conclusion arrived at by the commission. Such action by the commission was, in my opinion, in relation to a matter which they had to decide judicially, and there was a contravention of that fundamental principle which may be shortly expressed ‘audi alterum partem.'

“This was no matter of form but of substance and of the deepest importance. It is an indispensable requirement of justice that a party must be heard before being condemned, and the provisions of Section £9 of the Public Service Act, 1912, though authorising the annulment of an appointment of a probationer, do not in my opinion justify the mode of proceeding here adopted by the commission.” “It is clear from the minutes,” stated the judgment, “that the commission annulled the plaintiff’s appoinment (as a unit director of the Film Unit) because ‘it was reported that Holmes was pro posing to call a stop-work meeting at the Film studios ' That is. for forming an intention rather than for any actual act. Commission’s Reasons “In the press statement it is his 'attitude of gross disobedience to authority’ which is condemned, though there is a statement that ‘he again endeavoured to hold up the work of the Film Unit by calling a meeting over the unit’s broadcasting system.’ “It is upon this foundation that the commission considered that the plaintiff ‘by his clearly indicated disregard for instructions shoWed himself unlikely to become a satisfactory public servant,’ and that it was justified in having ‘no hesitation in annulling his appointment.’ “Actually.” continued His Honour, “what the commission had was

(a) A photostat copy of a letter allegedly written by the plaintiff to a Mr. Lewin. (b) Notes of a draft resolution allegedly written by this Mr. Lewin. (c) A report that on the afternoon of December 21 plaintiff was propos ing to call a stop-work meeting at the Film studios.

“The commission was instigated to deal with the matter and inasmuch as it had to deal with what was in substance a charge of misconduct, the situ ation required the commission th act judicially. If therefore, they did in fact act administrative’}', in my opinion, they exceeded their administrative functions ”