HOLMES CASE

Otago Daily Times, Issue 27080, 14 May 1949, Page 8

HOLMES CASE

APPEAL. SUCCEEDS DISMISSAL QUASHED “NATURAL JUSTICE VIOLATED " PA WELLINGTON, May 13. Judgment for the plaintiff, Cecil William Holmes, a public servant, with 30 guineas costs and disbursements, was given by Mr Justice Gresson in the Supreme Court to-day in the action which Holmes took against three members of the Public Service Commission —Messrs R. M. Campbell (chairman), G. T. Bolt and A. H. 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 Holmes’s appointment in the Public Service. Holmes had also claimed a writ of certiorari for the* removing of the order made by defendants on December 23, 1948, annulling his appointment in the Public Service in order that it might be quashed. Appointment Recommended “ The circumstances which, in my opinion, make the action of the Public Service Commission a violation of the principle of natural justice may be summarised,” said His Honor. 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 more than three years, in respect of whom probation reports which should have been made had never been submitted. Such comment as had been made upon Holmes’s work was highly favourable. Since the period of Holmes’s probation expired, he had been promoted, provisionally, to a more important position. “ The notes the commission had regarding Holmes 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 that his ‘ appointment is recommended.’ “ The commission, in resolving to annul Holmes’s appointment in the Public Service,” His Honor continued, “did not'act upon any consideration of probation reports, which might well be a routine administrative matter, but acted after considering certain documents forwarded to it, and upon a report that Holmes was proposing to call a stop-work meeting.” “The commission, after such consideration, decided upon the annulment of his appointment because of ‘ the attitude of gross disobedience to authority which he had displayed,’ ” the judgment continued. “This conclusion was arrived at without allowing Holmes any opportunity of challenging or explaining either the documents or the report, or any opportunity of dispelling by. evidence or argument the adverse conclusion arrived at by the commission. Justice Contravened “ Such action by the commission was, in my opinion, in relation to a matter which it had to decide judicially, and there was a contravention of that fundamental principle, which may be shortly expressed asr ‘audi alteram, partem’ (‘hear the other side ’). “This was rto matter of form, but of substance, and is of the deepest importance,” continued the judgment. “ It is an indispensable requirement of justice that a party must be heard before being condemned, and the provisions of section 39 of the Public Service Act, 1912, though authorising the annulment.of the 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 plaintiff’s appointment (as a unit director of the Film Unit) because ‘ it was reported that Holmes was proposing to call a stop-work meeting at the film studios.’ That is for forming an intention rather than for any actual act. In the press statement it is hisattitude 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 was upon this foundation that the commission considered that the plaintiff, ‘by his clearly indicated disregard for instructions, showed himself as unlikely to become a satisfactory public servant,’ and that it was justified in having ‘ no hesitation in annulling his appointment.’ “Actually,” continued his Honor, “what the commission had was (a), a photostat copy of a letter allegedly written by 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 proposing 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 situation required the commission to act judicially. If, therefore, it did in fact act administratively, in my opinion it exceeded the administrative tions.”Holmes was dismissed from his post in the National Film Unit following the release by the Acting Prime Minister, Mr Nash, of documents which had been handed to him by the police. Included in the documents was a letter signed by Holmes, on Film Unit notepaper to the president of the Public Service Association, Mr J P Lewin. In the letter Holmes had outlined arrangements he had made for a stopwdrk meeting of Film Unit employees. Mr Nash, in releasing the letter to the press, claimed that it was clear evidence that the Communist Party had fomented discontent in the public service over rates of pay and conditions of work.