Appeal From the Supreme Privy Council - Essay Example

of Ceylon v. E. F. W. Fernando on Appeal from the Supreme Privy Council PC (Cey) LORD JENKINS February 16. The judgment of their Lordships was delivered by who said: To their Lordships' regret, the plaintiff, it may be for financial reasons, has not appeared to support the decision in his favour pronounced by the Supreme Court, and although counsel for the University have done their best to make up for this by presenting the plaintiff's side of *229 the matter as well as their own, their Lordships have felt some anxiety in dealing with this not altogether easy case in the plaintiff's absence. [His Lordship then stated the facts set out above and continued:] In his amended plaint dated July 24, 1953, the plaintiff alleged that the decision of the commission of inquiry was null and void for a number of reasons. He claimed that the decision was contrary to the principles of natural justice on five grounds, two of which consisted of allegations of bias or disqualification against Professor Mylvaganam by reason of his alleged relationship to Miss Balasingham and Mr. Sivaprakasapillai, and the fact that he was a member of the board of examiners and of the scrutinising committee. The third ground was to the effect that by reason of the first "the maxim that justice should not only be done but also appear to be done" had been violated. The fourth ground comprised the substance of the plaintiff's case and was to the effect that the evidence of the various witnesses who appeared before the commission of inquiry, including the evidence of Miss Balasingham, was taken in the absence of the plaintiff, who was not aware of what evidence was led against him, and that in the circumstances one of the essential elements of natural justice was not observed, inasmuch as the plaintiff was not aware of the case he had to meet. The fifth ground was to the effect that the evidence of the various witnesses was not taken entirely before all the three members of the commission of inquiry, and that such evidence was acted on by the commission, and that this circumstance was also a violation of the elementary principles of justice. The plaintiff further alleged that there was no evidence upon which the commission of inquiry could reasonably find the charge against the plaintiff proved, that the finding arrived at against the plaintiff was one which had not been arrived at in conformity with clause 8, and that the finding and decision were therefore void and of no effect. The allegations of bias or disqualification against Professor Mylvaganam as a member of the commission of inquiry were rejected in both courts as without substance. The allegation to the effect that there was no evidence upon which the commission could reasonably find the charge against the plaintiff proved was (so far as open to the court) clearly ill-founded. The allegation to the effect that the finding was not arrived at in accordance with clause 8 turned on the fact that the Vice-Chancellor appointed two other persons to sit with him as a commission of inquiry to investigate the matter, instead of proceeding to investigate it alone. It was held in both courts that this procedure was not open to objection, inasmuch as this was merely a method, which the Vice-Chancellor was free to adopt if he chose to do so, of satisfying himself of the truth or falsity of the charge, and the Report was a report by him for the purposes of clause 8 although signed by the two other members of the commission as well as himself. The plaintiff having taken no steps to appeal against *230 the decision of the court below on these matters of complaint, their Lordships need say no more about them. There remain the complaints to the effect that the evidence, including that of Miss Balasingham, was taken in the absence of the plaintiff who was not aware of the evidence led against him or of the case he had to meet; and that the evidence of certain witnesses was taken by the Vice-Chancellor in the absence of the other members of the commission. As to these, it is not in dispute that the plaintiff was not present, and was not invited to be present, at the examination of any of the witnesses, or that the Vice-Chancellor did in fact interview two witnesses, namely, Professor Fernando and Dr. Cruze, in the absence of the other members of the commission. Their Lordships may add that it is also admitted that the plaintiff did not at any stage question Miss Balasingham and was never offered an opportunity of doing so. On the other hand, it is not in dispute that the plaintiff was interviewed and questioned at length about the matter by the three members of the commission on May 21 and June 3, 1952. Before the trial judge and in the Supreme Court it was argued for the University that the Vice-Chancellor's functions under clause 8 were administrative and not of the kind described, for want of a better term, as "quasi-judicial," and, accordingly, that the Vice-Chancellor's action in the matter was not open to review by the court. It was, however, argued further that if, contrary to this contention, the Vice-Chancellor's functions under clause 8 were quasi-judicial, the Vice-Chancellor's letter of May 16, 1952, coupled with the information given to the plaintiff at the two interviews, sufficiently apprised him of the nature of the complaint, that he was at these interviews given sufficient opportunity to state his case in rebuttal of it, and, accordingly, that there had been no such breach of the so-called principles of natural justice as was necessary to warrant the intervention of the court in such a case. The trial judge was of opinion that the functions of the Vice-Chancellor in the matter were administrative and not judicial, and consequently that the court had no jurisdiction to interfere, but went on to hold that if he was wrong in this, and such functions were of a quasi-judicial character, the principles of natural justice had been sufficiently complied with by the commission. The Supreme Court took the opposite view, holding that the Vice-Chancellor's functions were not administrative but quasi-judicial, and that the mode of inquiry adopted had violated the principles of natural justice, with the result that the court could and ought to declare the Report of the commission of inquiry, and the consequential decision of the Board of Residence and Discipline under clause 14, to be null and void. At the hearing before their Lordships Mr. Dingle Foot, for the University, disclaimed the contention that the Vice-Chancellor's *231 functions under clause 8 were administrative and not quasi-judicial, but submitted that, on the footing that these functions were quasi-judicial, the claims of natural justice had been fully satisfied. Accordingly (apart from a subsidiary question as to the jurisdiction of the courts in Ceylon to grant declaratory relief in such a case), the present appeal resolves itself into the question whether this inquiry was conducted with due regard to the rights accorded by the principles of natural justice to the plaintiff as the person against whom it was directed. These rights have been defined in varying language in a large number of cases covering a wide field. Their Lordships do not propose to review these authorities at length, but would observe that the question whether the requirements of natural justice have been met by the procedure adopted in any given case must depend to a great extent on the facts and circumstances of the case in point. As Tucker L.J. said in Russell v. Duke of Norfolk [FN6]: "There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth." FN6 (1948) 65 T.L.R. 225, 231; [1949] 1 All E.R. 109, 118. In the earlier case of General Medical Council v. Spackman [FN7] Lord Atkin expressed a similar view in these words: "Some analogy exists, no doubt, between the various procedures of this and other not strictly judicial bodies, but I cannot think that the procedure which may be very just in deciding whether to close a school or an insanitary house is necessarily right in deciding a charge of infamous conduct against a professional man. I would, therefore, demur to any suggestion that the words of Lord Loreburn L.C. in Board of Education v. Rice [FN8] afford a complete guide to the General Medical Council in the exercise of their duties." FN7 [1943] A.C. 627, 638; 59 T.L.R. 412; [1943] 2 All E.R. 337. FN8 [1911] A.C. 179, 182. With these reservations as to the utility of general definitions in this branch of the law, it appears to their Lordships that Lord Loreburn's much quoted statement in Board of Education v. Rice [FN9] still affords as good a general definition as any of the nature of and limits upon the requirements of natural justice in this kind of case. Its effect is conveniently stated in this passage from the speech of Viscount Haldane L.C. in Local Government Board v. Arlidge, [FN10] where he cites it with aprpoval in the following words: "I agree with the view expressed in an analogous case by my noble and learned friend Lord Loreburn. In Board of Education v. Rice [FN11] he laid down that, in disposing of a question which was the subject of an appeal to it, the Board of *232 Education was under a duty to act in good faith, and to listen fairly to both sides, inasmuch as that was a duty which lay on every one who decided anything. But he went on to say that he did not think it was bound to treat such a question as though it were a trial. The Board had no power to administer an oath, and need not examine witnesses. It could, he thought, obtain information in any way it thought best, always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view." FN9 [1911] A.C. 179, 182. FN10 [1915] A.C. 120, 132-133. FN11 [1911] A.C. 179, 182. From the many other citations which might be made, their Lordships would select the following succinct statement from the judgment of this Board in De Verteuil v. Knaggs [FN12]: "Their Lordships are of opinion that in making such an inquiry there is, apart from special circumstances, a duty of giving to any person against whom the complaint is made a fair opportunity to make any relevant statement which he may desire to bring forward and a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice." FN12 [1918] A.C. 557, 560; 34 T.L.R. 325. The last general statement as to the requirements of natural justice to which their Lordships would refer is that of Harman J. (as he then was) in Byrne v. Kinematograph Renters Society Ltd., [FN13] of which their Lordships would express their approval. The learned judge said this: "What then are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and, thirdly, of course, that the tribunal should act in good faith. I do not myself think that there really is anything more." FN13 [1958] 1 W.L.R. 762, 784; [1958] 2 All E.R. 579. Turning now to the actual terms in which the Vice-Chancellor is invested with the quasi-judicial function here in question, it is to be observed that all that clause 8 provides is that where the Vice-Chancellor is satisfied that any candidate has acquired knowledge of the nature or substance of any question or the content of any paper before the date and time of the examination "the Vice-Chancellor... shall report the matter to the Board of Residence and Discipline..." The clause is silent as to the procedure to be followed by the Vice-Chancellor in satisfying himself of the truth or falsity of a given allegation. If the clause contained any special directions in regard to the steps to be taken by the Vice-Chancellor in the process of satisfying himself he would, of course, be bound to follow those directions. But as no special form of procedure is prescribed it is for him to determine the procedure to be followed as he thinks best, but, to adapt to the present case the language of the judgment of this Board in De Verteuil v. Knaggs, [FN14] subject to the obvious implication that *233 some form of inquiry must be made, such as will enable him fairly to determine whether he should hold himself satisfied that the charge in question has been made out. FN14 [1918] A.C. 557, 560. As was said by Lord Shaw of Dunfermline in Local Government Board v. Arlidge, [FN15] of the authority there concerned, it "must do its best to act justly, and to reach just ends by just means. If a statute prescribes the means it must employ them. If it is left without express guidance it must still act honestly and by honest means." FN15 [1915] A.C. 120, 138. In the present case no shadow of doubt is cast upon the honesty and bona fides of the Vice-Chancellor or of those who sat with him in the commission of inquiry. So far as the plaintiff is concerned, it appears to their Lordships that he must be taken to have agreed, when he became a member of the university, to be bound by the statutes of the university, including clause 8, and in the event of clause 8 being put in operation against him could not insist on the adoption by the Vice-Chancellor of any particular procedure beyond what the clause expressly or by necessary implication requires. In the absence of any express requirement he is thrown back on the necessary implication that the Vice-Chancellor's procedure will be such as to satisfy the requirements indicated in the passages from De Verteuil v. Knaggs, [FN16] Local Government Board v. Arlidge, [FN17] and Byrne v. Kinematograph Renters Society Ltd., [FN18] to which their Lordships have just referred, and thus to comply with those elementary and essential principles of "fairness" which must as a matter of necessary implication be treated as applicable in the discharge of the Vice-Chancellor's admittedly quasi-judicial functions under clause 8, or in other words, with the principles of natural justice. FN16 [1918] A.C. 557, 560. FN17 [1915] A.C. 120, 132. FN18 [1958] 1 W.L.R. 762, 784. The question then is whether the Vice-Chancellor did in the course he took satisfy those principles. The plaintiff's contention to the effect that he was not adequately informed of the case he had to meet, and was not given any adequate opportunity of meeting it, and that the course taken by the Vice-Chancellor or the commission of inquiry in these respects failed to satisfy the requirements of natural justice, depended almost entirely on the admitted fact that Miss Balasingham and the other witnesses were not questioned in the presence and hearing of the plaintiff, who consequently was not able to question them on the statements they made. The further admitted fact that two witnesses were questioned by the Vice-Chancellor alone and not by all three members of the commission does not, their Lordships think, add anything to this basic complaint. But this did not, in their Lordships' view, in itself involve any violation of the requirements of natural justice. To adapt Lord *234 Loreburn's words in Board of Education v. Rice, [FN19] the Vice-Chancellor was not bound to treat the matter as if it was a trial, had not power to administer an oath, and need not examine witnesses, but could obtain information in any way he thought best. FN19 [1911] A.C. 179, 182. It seems to their Lordships to follow that inasmuch as the Vice-Chancellor, when the alleged offence under clause 8 was brought to his notice, was not bound to treat the matter as a trial but could obtain information about it in any way he thought best, it was open to him, if he thought fit, to question witnesses without inviting the plaintiff to be present. But, while there was no objection to the Vice-Chancellor informing himself in this way, it was undoubtedly necessary that before any decision to report the plaintiff was reached, he should have complied with the vital condition postulated by Lord Loreburn, which adapted to the present case may be stated as being to the effect that a fair opportunity must have been given to the plaintiff to correct or contradict any relevant statement to his prejudice. The university's contention is that this condition, which resolves itself into the two requirements that the plaintiff should be adequately informed of the case he had to meet, and given an adequate opportunity of meeting it, was complied with in its first branch by the letter of May 16, 1952, and what plaintiff was told at the first interview on May 21, 1952, and in its second branch by what passed at that interview and at the second interview on June 3. As to what took place at the two interviews, the trial judge accepted the evidence of the Vice-Chancellor in preference to that of the plaintiff. The Vice-Chancellor's evidence, and indeed the plaintiff's own admission, make it abundantly plain that at the outset of the first interview the plaintiff was told that Miss Balasingham had made this charge against him and the nature of the charge was explained to him in detail. [His Lordship then referred to relevant passages from the Vice-Chancellor's and the respondent's evidence, and continued:] Their Lordships are satisfied that there is no substance in the complaint made by the plaintiff to the effect that the reference in the letter of May 16, 1952, to "one or more of the papers set at the final examination" left him under the impression that some additional charge was being made against him, the precise nature of which was not sufficiently explained. Apart from the fact that (according to the plaintiff) Mr. Keuneman asked him towards the end of the first day "how he had fared in his practical examination?" nothing was said to suggest that the commission was in any way concerned with anything other than the German translation. It must, therefore, have been clear to the plaintiff (as the fact was) that the only charge which was being pursued related exclusively to that matter. *235 Their Lordships are, accordingly, satisfied that the plaintiff was adequately informed of the case he had to meet. As to the adequacy of the opportunity of meeting the case alleged against him afforded by the two interviews, the plaintiff in his evidence complained that the interviews were not fairly conducted in the respects that he was plied with questions which he was not given a chance of answering fully and was prevented from saying all he wanted to say. The trial judge rejected these complaints and accepted the Vice-Chancellor's evidence to the effect that the two interviews were fairly conducted. Their Lordships see no reason for dissenting from this finding. Their Lordships are therefore satisfied that the interviews, so far as they went, were fairly conducted and gave the plaintiff an adequate opportunity of stating his case. But it remains to consider whether in the course they took the interviews must be held to have fallen short of the requirements of natural justice on the ground that the plaintiff was given no opportunity of questioning Miss Balasingham. She was the one essential witness against the plaintiff, and the charge in the end resolved itself into a matter of her word against his. In their Lordships' view this might have been a more formidable objection if the plaintiff had asked to be allowed to question Miss Balasingham and his request had been refused. But he never made any such request, although he had ample time to consider his position in the period of 10 days or so between the two interviews. There is no ground for supposing that if the plaintiff had made such a request it would not have been granted. It therefore apears to their Lordships that the only complaint which could be made against the commission on this score was that they failed to volunteer the suggestion that the plaintiff might wish to question Miss Balasingham, or, in other words, to tender her unasked for cross-examination by the plaintiff. Their Lordships cannot regard this omission, or a fortiori the like omission with respect to other witnesses, as sufficient to invalidate the proceedings of the commission as failing to comply with the requirements of natural justice in the circumstances of the present case. Counsel for the university very properly referred their Lordships to passages in Osgood v. Nelson [FN20] and in other authorities which tend at first sight to state the requirements of natural justice more favourably to the party charged than do the authorities to which their Lordships have so far referred; see in particular the references to cross-examination in Osgood v. Nelson. [FN21] But their Lordships are satisfied that when the facts and circumstances of these cases are looked into they contain nothing to justify the conclusion that the requirements of natural justice were not sufficiently observed on the facts and in the circumstances of the case now before them. FN20 (1872) L.R. 5 H.L. 636. FN21 15 Ibid. 646, 660. In conclusion, their Lordships would observe that they are at *236 a loss to understand how the Supreme Court, while apparently accepting the trial judge's favourable assessment of the reliability of the evidence of the Vice-Chancellor, found it possible to reach the conclusion that not even the gist of Miss Balasingham's evidence was communicated to the plaintiff. Their Lordships would also venture the criticism that the Supreme Court tended to regard the case much as if it involved an appeal from or rehearing of a trial held before the commission rather than an invocation of the limited jurisdiction of the court to restrain the abuse of quasi-judicial proceedings, where the sole issue is whether the result, be it right or wrong, was arrived at with due regard to the principles of natural justice. The plaintiff might have fared better if the charge against him had been tried in accordance with the more meticulous procedure of a court of law, which would have included as of course the tendering of Miss Balasingham for cross-examination. But that is not the question. The question is whether, on the facts and in the circumstances of this particular case, the mode of procedure adopted by the Vice-Chancellor, in bona fide exercise of the wide discretion as to procedure reposed in him under clause 8, sufficiently complied with the requirements of natural justice. In their Lordships' opinion it has not been shown to have fallen short of those requirements. Their Lordships' conclusion on the merits of the case makes it unnecessary for them to consider the university's submission to the effect that the court had no jurisdiction to grant the declaratory relief sought by the plaintiff. For these reasons their Lordships are of opinion that this appeal should be allowed, the decree of the Supreme Court of Ceylon dated December 13, 1956, set aside and the decree of the District Court of Colombo dated August 31, 1954, restored, and they will humbly advise Her Majesty accordingly. The plaintiff must pay the costs of the present appeal and also the costs of the action in the District Court and of the appeal to the Supreme Court. Read More