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Biribo v Attorney-General [2000] KIHC 1; Civil Case 27 of 2000 (14 December 2000)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 27 of 2000

Between:

TOAWEA BIRIBO
Plaintiff

And:

THE ATTORNEY GENERAL IN RESPECT OF
PUBLIC UTILITIES BOARD
Defendant

For the Plaintiff: Mr Neil Allen
For the Defendant: Ms Pole Tebao

Date of Hearing: 14 December 2000

JUDGMENT

This action arises out of the dismissal of the plaintiff, then one of its revenue officers, by the Public Utilities Board. It was alleged against the plaintiff that he had wrongfully disclosed confidential information. The plaintiff denied having done that, and after having been dismissed, appealed against his dismissal. The points which I have to decide are two, was the plaintiff given any or sufficient particulars of the allegations against him and was he denied natural justice?

Most helpfully, counsel, Mr Neil Allen for the plaintiff and Ms Pole Tebao for the defendant, handed to me at the beginning of the hearing a Schedule of Agreed Facts. I set out so much of the Schedule as is relevant:-

1. The Plaintiff commenced employment with the Public Utilities Board in approximately 1988 as a temporary worker. He was made permanent on 29 April 1991.
   
2. On the 5th day of March 1999 the Chief Executive Officer of the Defendant spoke to the Plaintiff about allegations that the Plaintiff had disclosed account records to selected members of parliament without being authorized to do so. The Plaintiff denied any knowledge of the said disclosure and denied his involvement.
   
3. On the 5th day of March 1999 the Plaintiff wrote to the Chief Executive Officer of the Defendant stating that the allegations against him were false.
   
4. On the 16th day July 1999 the Plaintiff was notified by the Defendant in a letter that he was dismissed from his employment with effect from the 19th day of July 1999. The Plaintiff was advised in this letter of his right to appeal to the Public Utilities Board if he did not feel that he had been given a fair hearing.
   
5. On the 30th day of July 1999 the Plaintiff wrote to the Defendant requesting a hearing before the Board to answer the allegations against him.
   

[Whether the Defendant received this letter on 30th July, as the Plaintiff claims or on 22nd August as the Defendant claims, is in dispute.]

6. On the 21st day of September 1999 the Plaintiff’s lawyer wrote to the Defendant referring to the Plaintiff’s previous letter and stating again that the Plaintiff wished to appeal to the Board and to be heard by the Board. The letter further raised the question whether or not the recommendation of the Public Service Commission was required in the exercise of disciplinary proceedings under the law.
   
7. Since the 7th day of October 1997 the power to dismiss employees of the Defendant vests with the Defendant.
   
8. On Friday the 24th day of September 1999 at 4pm the Plaintiff was advised by the Defendant that there will be a hearing before the Board on Sunday the 26th day of September 1999.
   
9. The Plaintiff attended his lawyer at 4.15 pm on Friday the 24th day of September 1999 advising her that there will be a hearing on Sunday as stated in paragraph 8 above. The Plaintiff’s lawyer wrote a letter to the Chairman of the Defendant that was hand delivered to the Chairman of the Defendant requesting that the hearing be adjourned to enable the Plaintiff’s lawyer to discuss the case with the Defendant in relation to the issues raised in her letter referred to in paragraph 6 above.
   
10. The Defendant’s Board did meet on Sunday 26th September. The Plaintiff attended only long enough to deliver a letter and went away without seeking leave to depart.
    
11. On the 4th day of October 1999 the Plaintiff’s lawyer contacted the Chairman of the Defendant and was advised that the Board had met in the absence of the Plaintiff and had confirmed the Plaintiff’s dismissal.
    
12. On the 4th day of October 1999 the Plaintiff’s lawyer wrote to the Chairman of the Defendant again stating that the Defendant requested a hearing before the Board and requesting that details of the specific allegations against the Defendant be provided prior to the hearing.
    
13. On the 5th day of November 1999 the Chairman of the Defendant advised the lawyer of the Plaintiff that the Plaintiff would not be permitted to be heard before them as the decision had already been made.....
    

[Paras 14 to 19 relate to the establishment of a Board of Enquiry. I considered this not to be relevant and counsel conceded that it was not.]

20. Schedule 2 of the Public Utilities Board Ordinance as amended provides for a Board meeting during which employees are permitted to make representations in relation to disciplinary or dismissal control of employees of the Defendant.
    

Because of the agreement on facts I heard the evidence only of the plaintiff and of Mr Tokia Greig, the Chief Executive Officer of the Public Utilities Board.

The plaintiff was, on the 5th March, reproached by the Chief Executive Officer with disclosing account records. The plaintiff denied that he had done so. In July he was dismissed. He appealed, asked for a hearing before the Board. On the 21st September Ms Fleer, the People’s Lawyer, wrote to:

“Chairman and Board of Directors Public Utilities Board Betio:-

Dear Sirs

TOAWEA TIAOTI

I have been approached by Toawea Tiaoti who has sought my legal advice with respect to his dismissal from employment at the PUB for the offence of unofficial disclosure of information which he has denied.

I refer to the most recent letter dated 16 July 1999 from Tiaon Bauntaii for the Chief Executive Officer which advised my client of the decision of the Board and advised him of his right to appeal to the Board if he feels he has not been given a fair hearing. My client certainly has not been given a fair hearing as he has not been heard at all.

My client wrote to you on the 30th of July 1999 advising that he wishes to appeal to the Board. He has not at this stage received a reply. I reiterate on his behalf that he wishes to appeal against the decision of the Board.

---------

I again state that my client wishes to appeal to the Board and to be heard before the Board in respect of the allegations against him. I look forward to hearing from you about when this will take place.”

On the 24th September at about 4 o’clock in the afternoon the plaintiff was told that the Board would hear his appeal on the following Sunday, the 26th. He was not told a time, he said in evidence: according to its minute the Board met at 2.45 pm. The plaintiff, on learning of the meeting on the following Sunday, went straight to Ms Fleer. Ms Fleer wrote another letter:-

“Chairman and Board of Directors

Public Utilities Board

BETIO

Dear Sirs

TOWEA TIAOTI

I have just been informed by Towea that the Board is intending to meet on Sunday to hear the appeal of the accused. I understand that Towea was informed today (Friday) at around 4 o’clock.

I am writing to let you know that Towea is not ready to address the meeting on Sunday. I would appreciate the opportunity to speak to you first prior to the hearing about the evidence against Towea ------------

I apologise for any inconvenience that this may cause to the Board and I request that we speak on Monday about this matter.

Thank you for your cooperation.”

The plaintiff delivered this letter on the Sunday morning between 8 o’clock and 9 o’clock to a watchman at the offices of the Board.

The Board met, saw the letter, discussed the matter and confirmed the dismissal. This is the Board minute:-

2.1 Disciplinary Action: Mr Toawea Tiaoti

A copy of the People’s Lawyer’s letter was circulated informing the Board that Mr Tiaoti was not ready to make an appeal at this meeting. This is despite the notice given in Management’s “in confidence” letter dated 16 July and the officer’s appeal letter issued on 30 July 1999.

In his absence therefore the Board reaffirmed its earlier decision on this case and advised that Mr Tiaoti should take the matter to court if he feels that the decision was still unfair.

Mr Allen referred me to De Smith, Woolf and Jowell “Judicial Review of Administrative Action” (5th ed), particularly to the early part of chapter 9 “Procedural Fairness: Content.” There is no need for me to cite any passages. The principles applicable are clear.

Before I consider them I must, however, remind myself that we are considering what laymen did in the course of their duties. They are not lawyers. We are lawyers and we must be careful not to be legalistic, not to impose a standard on laymen which is too high.

Nevertheless notions of fairness, by which I try to be guided, are universal: one does not have to be a lawyer to understand and appreciate them. Fairness, I suggest, and “natural justice” are the same thing.

I deal with the two points Mr Allen made. First, that the plaintiff was not given particulars of the allegations he had to meet. The plaintiff had been spoken to about the allegations on 5th March. My note of his evidence:-

....went to PUB: saw personnel officer, Tiaon Bauntai. Explained reasons for dismissal – said I could appeal. He said I had been accused of giving out information re Minister’s debts: not given details: advised rights to appeal to Board.

Nothing to the plaintiff was ever put in writing, apart from the letter of 16th July telling him of his dismissal:-

Dear Sir

UNOFFICIAL DISCLOSURE OF INFORMATION

As you have already been notified your involvement in the recent disclosure of PUB account records to selected MPs has been regarded as a misconduct (NCS D12).

The Board’s deliberations on this case were finally concluded at the last meeting and I am to inform you that your employment with PUB has been terminated with effect from Monday 19 July 1999. The decision also took account of your past misconduct records and the disciplinary actions that have been imposed. However you are reminded of your right to appeal to the Board if you feel you have not been given fair hearing.

No particulars there and the plaintiff had denied being involved anyway.

[I pause to suggest that the Board was wrong to take into account “past misconduct records and disciplinary action .....imposed.” there were three instances in 1992 and 1993 each of a quite different nature. They are irrelevant].

What persuaded me of the force of Mr Allen’s first point was Mr Greig saying that the Board on the Sunday 26th September, had four witnesses lined up to give evidence. I assume that the plaintiff knew nothing of them and would have been taken by surprise by them.

Mr Allen argued that his client was entitled to know to whom, what information he was alleged to have disclosed and when he was alleged to have disclosed it. I accept the argument.

What had struck me from the first time I read the papers is the shortness of the notice of the hearing – late on a Friday afternoon for a hearing on a Sunday. The more so after I heard Mr Greig. It seems that the plaintiff could have been given notice at least a few days earlier than the Friday. The note I have of his evidence:-

No reason why he couldn’t have been informed earlier, apart from administrative.

Ms Tebao argued strongly that the plaintiff well knew the allegations against him: he had asked for a hearing and he would not have done so unless he were prepared for it and at short notice: there was no need for him to be given particulars and he should at any time have been ready to go on with his appeal.

With respect, I think this is putting the plaintiff to too severe tests. He was entitled to the particulars Mr Allen mentioned – to whom, what and when: he was entitled to far more notice of the meeting than he was given, especially as by then he had a lawyer acting who asked for more time. There were Ms Fleer’s letters of the 21st and 24th September. The Board appears to have ignored them which, at the least, was discourteous.

There is only one more matter I mention. During hearing I asked whether an appellant was allowed representation, legal or otherwise, at the hearing. Ms Tebao said in her experience there never had been representation. Neither counsel knew of any statute law in Kiribati, either allowing or prohibiting it. I suggest that to allow representation, if requested, would be one way of avoiding in the future such an unfortunate situation as has arisen in this case.

What orders should I make? The plaintiff claims:-

1. For declaration that the dismissal of the Plaintiff was in breach of natural justice, unlawful and is therefore void: alternatively an Order of Certiorari to quash the decision of the Board of the Defendant to refuse an adjournment.
   
2. Unpaid wages due to the Plaintiff from the date of the alleged dismissal until the date of Judgment.
   
3. Order that the Defendant conduct a hearing in the presence of the Defendant in accordance with the principles of natural justice.
   
4. Costs.
   

The dismissal itself may not have been in breach of natural justice. That was not argued: argued was that the procedure followed on appeal was in breach. Perhaps the alternative in paragraph 1 would be appropriate.

I heard no argument on the payment of wages and so I am not prepared at this stage to give the relief claimed in paragraph 2.

The wording of paragraph 3 is not quite right. I suggest the form should be, “order that the Public Utilities Board conduct a fresh hearing of the plaintiff’s appeal in the presence of the plaintiff, in accordance with the principles of natural justice.”

I order:-

1. That the decision of the Public Utilities Board to refuse an adjournment of the hearing of the plaintiff’s appeal be quashed;
   
2. That the Public Utilities Board conduct a fresh hearing of the plaintiff’s appeal in the presence of the plaintiff, in accordance with the principles of natural justice.
   

As for the claim in paragraph 2 for unpaid wages, I shall hear the parties further if they are not able to reach agreement.

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE