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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS 445 OF 2006 (JR)
BETWEEN:
DOMINICA PHILIP
Plaintiff
AND:
THE NATIONAL EDUCATION BOARD
First Respondent
AND:
THE TEACHING SERVICE COMMISSION DISCIPLINARY COMMITTEE
Second Respondent
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent
Waigani: Injia, DCJ
2007: 16th October
2008: 27th June
JUDICIAL REVIEW – plaintiff reviewing decision of defendants who found her guilty on counts of disciplinary offences – five grounds of review advanced, namely error of law or ultra vires, breach of natural justice, irrelevant considerations, bias and Wednesbury principle of unreasonableness - s.41 Constitution, s.90(3) Teaching Service Act, O.16.r.3 National Court Rules
JUDICIAL REVIEW – practice and procedure - relief sought and grounds relied upon must be properly and sufficiently pleaded in Statement - plaintiff not permitted to challenge primary decision or reargue or rehash arguments raised before primary –decision making body – disciplinary process provided under Teaching Service Act - Part VII Div.4 Teaching Service Act 1988, O.16 rr.3& 6 National Court Rules
JUDICIAL REVIEW – remedies - application for judicial review granted in part - TSCDC’s decisions on other grounds of appeal upheld - remaining grounds under Wednesbury principles of unreasonableness not considered – matter remitted back to TSCDC for rehearing on fresh evidence on bias only.
Cases Cited:
Falsheer v Okuk [1980] PNGLR 101,
Gabir & Ors v Public Service Commission & Ors [1988-89] PNGLR 406.
Jaran v Kerepia [1987] PNGLR 16
Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122.
Sausau v PNG Harbours Board (2006) N3256
Counsel:
G Kogora, for the plaintiff
A Chillion, for the respondents
27th June, 2008
1. INJIA, DCJ: This is an application for judicial review made under O 16 of the National Court Rules. The plaintiff seeks to review the decision of the respondents to find her guilty on three counts of disciplinary offences and impose a penalty of demotion and transfer her out of Madang Teachers College (MTC).
Grounds of review:
2. There are five heads of grounds set out in the amended Statement filed under O 16 r 3 as follows:
"A. Error of law & ultra vires.
B. Breach of (Natural) Justice.
3. By not allowing or giving the Plaintiff a copy of the Investigation Report forming the basis of the charges made against her so as to respond properly and adequately to the charges laid, the First Defendant breached the Plaintiff’s right to natural justice.
C. Irrelevant considerations.
4. That the Second Defendant did not or failed to take into account relevant considerations, and took into account irrelevant considerations in arriving at the decision the subject of this review when it refused or failed to consider the fresh evidence adduced by the plaintiff at the appeal alleging bias.
D. Bias
5. That the decision to charge, demote and transfer the Plaintiff out of MTC was tainted with bias, or was made under circumstances of real likelihood of bias when:
(a) it was based on an investigation report which was conducted in a biased manner.
(b) there was evidence of collusion between the Chairman of TSC, (named )(hereinafter referred to as the MR AJ), Assistant Secretary, Teacher Education & Staff Development, (named)(hereinafter referred to as Mr MT), The Acting Principal of MTC (named) (hereinafter referred to as Mr SP) and Registrar of MTC, (named) (hereinafter referred to as Mr RM) to remove the Plaintiff from her tenure position as Principal of MTC which was not taken into account at all.
(c) There was evidence of large cash payments were made from MTC accounts by Mr MK, Registrar of MTC with approval of Mr SP, Acting Principal of MTC to TSC Chairman and Mr MT prior to and at the time of the Plaintiff’s suspension which also was not taken into account at all.
E. Unreasonableness
6. The Second Defendant’s decision to dismiss the Plaintiff’s appeal and to uphold the decision of the First Defendant by way of penalty to demote the Plaintiff by two
(2) levels from her substantive position level 11 and to transfer her out of Madang Teachers College was harsh, oppressive, excessive and disproportionate to the nature and severity of the charges levelled against the Plaintiff and therefore contrary to Section 41 of the Constitution.
7. Considering the circumstances of the particular case in its entirety, the decision the subject of the review made by the First and Second Defendants is very unreasonable and contrary to the Wednesbury principles."
Evidence
3. The plaintiff relies on her two affidavits sworn on 31st May 2006, and 22nd February 2007 respectively. The respondents have not filed any affidavits but they rely on the written decision of the first respondent (TSCDC) dated 25th November 2005 which is annexed to the Plaintiff s affidavit sworn on 31st May 2006.
Facts
4. The plaintiff is a teacher employed by the Department of Education (DOE). Between 2003 and 2005, until her disciplinary demotion and transfer on 3rd June 2005, she was the Principal of MTC. There is no dispute that she was a "tenure holder" of that position. Between 5th March to 6th December 2004 or January 2005, she took study leave to undertake postgraduate studies in the degree of Master of Education at the University of Perth, Australia. In her absence, Mr SP was appointed to act in the position. Upon her return from studies in December 2004, her efforts to resume duties was resisted by Mr SP and the Teaching Service Commission (TSC). Tensions developed at the school between factions of staff and students aligned to Mr SP and the plaintiff which led to a fight at the college premises on the night of 11th January 2005. On 13th January 2007, the plaintiff was advised that she was suspended from duties pending an investigation into the matter. TSC sent a team of investigators from Waigani to investigate and report back on the incident. Between 14th – 20th January 2005, the investigation team interviewed staff and students. It was understood that an "Investigations Report was compiled and presented to the TSC. On 21st January 2005, the plaintiff was formally suspended from her duties pending investigations.
5. On 15th February 2005, the plaintiff was formally served with three charges. The charges were drafted in the prescribed manner with reference to the section of the Teaching Service Act 1988 (the Act) alleged to have been breached, the conduct alleged to constitute the offence and a statement of alleged facts to support each charge. The first charge was that she "committed a breach of this Act namely Section 108", thereby contravening s 83 (a) of the Act. It was alleged that she took unapproved study leave in Australia. The second charge was that she "wilfully disobeyed or disregarded lawful order made by person in authority" thereby contravening s 83(b) of the Act. It was alleged that she disregarded orders issued by TSC for her not to resume duties until the National Education Board (NEB) decided on her position and conducted meetings with certain staff members and attempted to seize office by force. In collaboration with other named staff members, she demanded and obtained the office keys from Mr SP, seized cheque book and cash book of MTC, prevented 2005 teacher appointees from performing their duties and caused a confrontation which led to one Siegeru Woda being seriously hurt. The third charge was that she engaged conduct which was "disgraceful and improper in your official capacity so as to reflect the teaching profession" thereby contravening s 85 (1) of the Act. It was alleged that she conspired with other named staff members and held unauthorized meetings whilst she was on study leave which resulted in the same events referred to under the second charge. She was given seven (7) days to send her written response to the National Education Board’s Disciplinary Committee (NEBDC).
6. On 16th February 2005 she replied to the charge in writing. In a 6-page written statement, she denied the charges and gave an explanation on each charge. On 13th April, 2005 NEBDC met and heard the matter. The plaintiff attended the hearing. It is not clear from her evidence (see par 36 of her affidavit sworn on 31st May 2006) if she made any oral address. After the hearing NEBDC made its’ recommendation to NEB. On 25th May 2005, NEB made its decision. On 3rd June 2005, it conveyed its decision to the plaintiff in the form of a "Notice of Decision" in Form 14 of the Act. It found her guilty on all three charges. On the first and second charges, she was cautioned. On the third charge, she was demoted two levels down from her substantive level 11 position and also transferred to another college. The notice of penalty did not state reasons for decision. She was advised that if she wished to appeal the decision, she should do so in writing addressed to the TSC Disciplinary Committee (TSCDC) within 5 weeks.
7. The plaintiff engaged Narokobi Lawyers to lodge an appeal on her behalf. In a Notice of appeal lodged on 30th June 2005, the plaintiff raised seven grounds of appeal. On 31st August 2005, TSCDC met and heard the appeal. Two main issues were addressed at the hearing. They were denial of natural justice by reason of TSC’s failure to furnish to the plaintiff a copy of the Investigation report and bias of members of TSC. The plaintiff gave oral address in which she presented "fresh evidence" of certain payment of K18,000.00 allegedly made to by Mr ST and Mr RM to Mr AJ and Mr MT. On 25th November 2005, the TSCDC handed down a 17-page written decision dismissing the appeal.
Crystallization of grounds of review and issues
8. Judicial review relief is a special remedy in public law which is available at common law. It is very much discretionary. The Court guards itself against abuse of its judicial process by busybodies and persons with trivial or misguided complaints over administrative errors or mis-judgments who too often tend to use the Courts as a forum to rehash or reargue their case in as much as the same manner in which they did or would have done before the statutory tribunal or authority which made the decision. The nature of the relief that is available, the grounds on which they are available and the procedure by which an application for judicial review if filed and pursued in court are well defined by rules of court and well established principles of law. It is a restrictive process and not an open forum for people with misguided complaints over administrative errors and mis-judgments to rehash or reargue their case before the Court, on any conceivable ground and raise material and issues which have no basis in law and in the pleadings of proper relief and grounds of review required by the rules of court.
9. The grounds on which judicial review relief is available are set out in Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122. The appropriate relief available in judicial review are set out in O 16 r 1. The relief sought and the grounds relied upon must be properly and sufficiently pleaded in the Statement filed under O16 r 3; they must relate to established and recognized grounds of review at law. The material or evidence relied on must relate to and be relevant to those grounds as expressly pleaded. At the hearing parties will not be permitted to advance grounds which clearly lack merit, or introduce new grounds which are not pleaded and produce evidence or material and raise issues and submissions which have no connection with the grounds pleaded. It is for this reason that at the hearing of the leave application and at the direction hearing upon grant of leave, the court should scrutinize and refine them and even weed out those relief and grounds which are not available in judicial review, or vague; or duplicitous, and clearly lack merit so that only those relief, grounds issues which arise from those grounds and relevant evidence which support those grounds are allowed to proceed to a hearing. A similar exercise should be carried out at the hearing of the substantive application in case some of those matters escape proper scrutiny at the leave or directions stage. Also in this exercise, grounds which offend proper pleading requirement and /or clearly lack merit should be identified at a preliminary stage of the hearing of the substantive application for review and weeded out to prevent waste of court’s time and abuse of court process and only those grounds which merit a judicial hearing and determination should be allowed to proceed to hearing. In conducting this exercise, the Court must bear in mind that the proceedings remain adversarial in character and the Court must avoid engaging in any endeavour to improve the pleadings of the grounds of review in the Statement for the parties in order to grant a relief which may or may not be sought in the Statement.
10. In many instances, the enabling statute will usually provide for a decision-making process in which an administrative appeal or review tribunal or body is empowered to hear and determine appeals from primary decision-making bodies and make a final decision on the appeal or review. In those cases, as a general rule, the appeal or review process must be exhausted first before leave for review is granted: Kekedo v Burns Philp (New Guinea) Ltd, supra; O 16 r (6). The decision the proper subject of judicial review is the decision on appeal or review and not the primary decision. In the primary hearing, the person aggrieved by the decision is expected to put his or her entire case to the decision-making body or authority. An appeal lies from that decision. In the appeal, the plaintiff is expected to put her entire case for review of the primary decision before the appeal body. Judicial review lies against the decision of the appeal body. On judicial review, as a general rule, the plaintiff is not permitted to challenge the primary decision or to reargue or rehash arguments raised before the primary –decision making body. Also on judicial review, as a general rule, the plaintiff on review will not be permitted to rehash his case or arguments raised before the appellate body or to raise new issues which were not raised before the appellate body and considered by it. The primary task of the Court is to review the decision on the record, made by the appeal body and determine whether the grounds of review are established by the plaintiff and the appropriate relief ought to be granted. The review court will not, should not and has no jurisdiction to go outside the scope of matters considered by the appellate body. One of very few exceptions to the general rule is allegations of denial of natural justice under the two constituents of that principle, namely nemo judex in sua causa and audi alterm partem. There are those cases where the plaintiff or another person is directly affected by the decision and claims that he or she was not given an opportunity to be heard by the primary body or the appeal body; or that new evidence may come to light after the decision that members of the decision-making body were unduly influenced in making the decision such that the decision-making process was tainted. In such cases, the plaintiff or such other person may be allowed to address the Court and to adduce "fresh evidence" and opportunity given to prove his or her case. These principles are well established.
11. These principles were amply put to the plaintiff’s counsel by this Court in the course of the hearing and addressed by counsel.
12. Ground 1 and 2 are not pursued at the hearing. In any case, these grounds are without merit because s 90 (3) of the Act relates to continuation of suspension. It does not prescribe time limit for laying charges.
13. Ground 6 was not pursued because s 41 of the Constitution is not a proper ground of judicial review: see Sausau v PNG Harbours Board (2006) N3256. In any event, the Wednesbury principles of unreasonable is the proper ground and it is properly pleaded in ground seven.
14. In the written submissions by the plaintiff’s counsel, par 2.11 states that she was not given an opportunity to address or comment on penalty. This is a distinct ground for review and it is not pleaded in the amended Statement and therefore it is not open to the plaintiff to introduce this new ground by way of submissions: see 016 r 6(1).
15. The remaining grounds are 3, 4, 5 and 7. These grounds relate to raise matters which were raised before the TSCDC and considered by it. They are properly raised before this court.
Disciplinary process under the Teaching Service Act 1988
16. Before I determine the remaining grounds of review, it is useful to set out the main steps or features in the disciplinary process set out in Part VII Div.4 ( Serious Offences) & 5 (Proceedings, etc of Disciplinary Committees) of the Act. The term "disciplinary committee" is defined in s 1 of the Act to mean Provincial Disciplinary Committee (PDC), NEBDC or TSCDC. The provisions of Div. 4 and Div. 5 apply to all disciplinary committees. The main features of the disciplinary process are:
17. In the present case the plaintiff does not take issue on compliance with these other procedural steps. Her claim that she was not furnished with a copy of the Internal Investigation Report is not based on a breach of s 87 (2) and (4) of the Act. Her claim is based under the common law principles of natural justice as adopted in s 59 of the Constitution and applied by Courts in many cases in this jurisdiction.
Determination of grounds of review
Ground 3: Denial of natural justice
18. This ground challenges the proceedings before the NEBDC. The plaintiff claims the NEBDC failed to furnish a copy of the Investigation Report to enable her to adequately respond to the charges at the hearing.
19. Mr Kogora of counsel for the Plaintiff submits the report was biased and contained biased and damaging material which were used by NEBDC to find her guilty of the charges. The NEBDC was under a duty imposed by s 59 of the Constitution and the common law principles of natural justice adopted in cases such as Falsheer v Okuk [1980] PNGLR 101, Gabir & Ors v Public Service Commission & Ors [1988-89] PNGLR 406. The duty to act fairly included a right to be heard on the matters contained in the report before decisions on the charges were made.
20. Mr Chillion of counsel for the defendants acknowledges the principle of natural justice does apply to public decision-making bodies such as disciplinary committees, as affirmed in cases which have come before the Courts such as Jaran v Kerepia [1987] PNGLR16. He submits the TSCDC at p12 of its decision correctly found that she had been given all necessary information on the charges and had 7 months to respond to the charges. The investigation report was prepared for internal use and she was not entitled to a copy. The TSCDC correctly found her claims of denial of natural justice to be a falsehood.
21. I have read the plaintiff’s main affidavit sworn on 31st May 2006, in particular par 36 where she deposes to attending the NEBDC hearing. She says nothing about asking the charging authority for a copy of the investigation report to prepare her reply. She also says nothing about asking the NEBDC for a copy of the report and asking for opportunity to be given to address the committee on the report. Further, there is no evidence before me that the Investigation Report was amongst the documents used by NEBDC to determine the charge and penalty. She annexes to her affidavit a copy of a letter written by four of the seven teachers charged with disciplinary offences, addressed to NEBDC which complained of bias in the investigation report but the plaintiff is not a signatory to that letter so she cannot rely on it.
22. I have also read her written explanation to the charge and note that it is detailed and comprehensive. She makes no mention of a biased investigation report or that the adequacy of her explanation due was hampered by unavailability of the investigation report.
23. I have also read the facts pleaded under each charge in the notice of charge document. The facts are clearly and sufficiently pleaded. I am satisfied that this information was sufficient to inform the plaintiff of the nature of the factual allegations so that she would give a full explanation to the charges.
24. The plaintiff’s case is based on denial of natural justice under s 59 of the Constitution and the common law principles of natural justice. I know of no principle under the twin principles of natural justice, nemo judex in sua causa and audi alteram partem, which says a public officer charged with a disciplinary offence must be furnished with a copy of the department’s internal investigation file or report on the matter on which charges are drawn up, in order for officer to reply to or adequately reply to the charge. The requirement is to put the charge with which he or she is accused of and be given an opportunity to reply, any thing further would require clear and express statutory prescription.
25. In the present case, there is express requirement in s 87(2) of the Act requiring the Chairman of the disciplinary committee and the authorized officer to provide a copy of all documents to be used by the Committee, in order for him or her to reply adequately to the charge or for purpose of giving the officer an opportunity to be heard on the report at the hearing before the NEBDC. I assume an investigation report of the kind in this case is included on the list of documents if it is to be used at the hearing. Failure to provide copies of an internal investigation report to the member concerned would be appropriately challenged under breach of s 87 (2) of the Act. However, the plaintiff’s case is not based on s 87(2) of the Act. This Court cannot improve her case by introducing this new ground of challenge. This ground is misconceived and without merit.
26. It is clear from the written judgment of TSCDC that at the hearing of the appeal, TSCDC did obtain a copy of the Investigation and furnished it to the plaintiff’s counsel and that her counsel addressed the TSCDC on the matter. At pages 11 -12, the judgment states as follows:
"The Madang Investigation Report is not highly a secretive document however it is a report per se prepared for and by education authorities for their own consumption. The Secretary for Education and The Chairman for Teaching Service commission are custodians of the report. It follows that other interested users must obtain prior permission from the two custodians referred to have access to the report. We see nothing wrong or irregular with that arrangement. This committee was also denied access initially by the Education Department simply because it did not comply with procedures. However a copy of the report was made available to this committee using its powers under Section 87 (2) Teaching Staff Act 1988. Similarly this committee also made a copy available to the member. Counsel for the National Education Board still maintains that the member’s copy was illegally obtained without proper authorization. There is no evidence before the committee to show that the member through her lawyer formally requested for a copy in writing although her lawyer still maintains that her client was refused access. It must be noted that the Madang Investigation Report remains the property of the secretary for Education and the Chairman Teaching Service Commission. Therefore persons who are desirous to have access to it may be granted access only at the discretion of those Officers."
27. A copy of the investigation report was furnished to her by the TSCDC and she had the opportunity to address the TSCDC on the matter. There is no evidence that the TSCDC used the investigation report to make findings adverse to her. The TSCDC rejected the use of the investigation report and it gave reasons for refusing to use the report. There is no specific ground of review which challenges the TSCD’s handling of this particular issue. In these circumstances, there is no proper basis for this court to interfere with the TSCDC’s decision on this point.
28. For these reasons, this ground lacks merit and it is dismissed.
Ground 4: Irrelevant considerations
29. This ground alleges failure on the part of TSCDC to consider evidence adduced by the appellant on bias. It is related to ground 5. The submissions made under this ground are considered under ground 5.
30. Ground 5: Bias. There are three arguments on bias. The first argument relates to the NEBDC’s reliance on a biased investigation report to charge and sustain the charges. In my view she was given a copy of the report by TSCDC and given an opportunity to address the committee on the report. There is no challenge to the TSCDC’s handling of this issue. This argument is therefore without merit.
31. The second argument relates to fresh evidence on alleged payments made to Mr AJ and Mr MT which the plaintiff adduced at the hearing before the TSCDC. Ground 4 is framed on the basis that the TSCDC "failed or refused to consider the fresh evidence adduced by the plaintiff alleging bias". In my view, TSCDC’s written decision at pages 14-16 shows that the fresh evidence was considered by the committee. The committee rejected the evidence as lacking in credibility and weight. The question of whether the committee erred in doing so is taken up on the third part of the plaintiff’s case on bias. The second ground and arguments advanced by the plaintiff’s counsel in support of the ground as pleaded is therefore without merit and it is dismissed.
32. The third argument relates to TSCDC’s rejection of the fresh evidence on payment of the money. If the plaintiff succeeds in establishing that the TSCDC committed an error of law in rejecting the evidence and satisfies this Court on the evidence produced before this court that the evidence was sufficient and credible to warrant a finding that the payment was made and as a result the proceedings before the NEBDC and TSCDC were tainted with bias, this Court may grant the relief sought by the plaintiff. It is therefore necessary to examine the findings of the TSCDC on the fresh evidence adduced by the plaintiff.
33. The plaintiff’s evidence before the TSCDC in essence is that Mr SP and Mr RM (Registrar of MTC) paid K18,000.00 from MTC’s funds to the Chairman of TSC and Mr MT to ensure that the plaintiff was removed as principal of MTC. The payment by BSP Cheque was made on or about 31st January 2005 which was about the same time the plaintiff had returned from overseas and waiting to resume duties. The plaintiff was then suspended by Mr AJ before formal charges were laid and put off the payroll from 31st February 2005 up to 31st May 2006. The suspension and charges were a smokescreen to cover up the cash payment. The Plaintiff gave oral evidence and documentary evidence before the TSCDC to support this claim. The documents and a transcript of notes and evidence taken in the TSCDC hearing is not before me. Only the decision is before me.
34. Ms Kogora submits there was evidence of collusion and payment of bribe money by Mr SP and Mr RM to Mr AJ and Mr MT placed before the TSCD but they were not considered by TSCDC. The court should find that the whole disciplinary process was a sham and a set up to rid the plaintiff and sustain Mr SP on the position.
35. Mr Chillion submits the evidence produced before TSCDC lacked weight and credibility and it was correctly rejected by the committee. He submits they remained allegations and were not proved before TSCDC. There is no evidence placed before this Court to support any finding of bias.
The pertinent parts of TSCDC’s decision appears on pages 14-16 of its decision as follows:
"Appeal ground number 5 is easily disposed off. The lawyer is asking this committee to make a hypothetical finding in favor of her client based solely on what her counsel term as ‘salient facts and classified documents’. The member is suggesting that the authorities concerned in her demotion and transfer out from her previous had preconceived and predetermined motives. Be that as it may we ask ourselves this question, what about the fight that occurred on 11 January 2005 resulting in a teaching staff suffering a broken arm? Isn’t that a very serious problem requiring very urgent action and attention by Education Authorities in Port Moresby? We consider it to be very serious, requiring urgent action. In support of this ground of appeal the member has gone to great lengths to show that large sums of money were paid out from the Madang Teachers College account to certain persons (named within the Education Department and Commission). The lawyer for the National Education Board opposed the tendering of these documents.
In the exercise of the member’s rights to be heard the committee allowed the member to tender copies of postal money transfers and other records. A total of ten such items documents were received and marked for identification purposes. However prior to the hearing the member through her lawyer requested for those persons named to be summoned to appear. Upon the committee ruling that it was the member’s responsibility to meet the cost of their attendance the request was abandoned.
Having considered all the material and evidence on this ground of appeal the committee was of the view that they have no bearing on the innocence of the member or the excessive severity of the punishment. The committee is mindful of the fact that all documents and materials tendered have not been subjected to any form of examination or scrutiny to establish their truth or authenticity. Furthermore those persons named as recipients of those monies have not been given the opportunity to be heard. To do so would be a breach of those persons’ fundamental rights and a clear act of denial of natural justice. In response to lead questions asked by her lawyer the member told the Committee that she has heard that large sum of monies were paid to certain officers within the Education Department. Technically her responses were hearsay in nature and so the Committee cautioned itself of not placing too much emphasis on their credibility. However for the purposes of this appeal hearing the committee will except all exhibits and evidence pertaining to this ground of appeal as they are.
We fail to understand how the so called un-tested ‘salient facts and classified documents’ could have a bearing on the member’s innocence of the offence or the excessive severity of the punishment. We agree that such evidence may prove very useful in other forms if properly tested and their credibility and sources authenticated. In its current form the committee is of the view that it would be unsafe to rely on such information. The end result is that appeal ground 5 is dismissed."
36. There is no evidence or material in the form of certified records of proceedings before TSCDC placed before me from which I could make my own assessment on the evidence and make findings. The oral evidence given and the documents tendered in support of the allegation of payments are not before me. The plaintiff should have utilized the discovery provisions in r 7 (4) & (5) of the National Court (Judicial Review) Amendment Rules 2005 to require the respondents to produce those material.
37. On a close examination of the TSCDC’ decision on the issue of fresh evidence quoted above, I am of the view that the committee failed to conduct a proper hearing on the "fresh evidence". The allegations were of a serious nature and the Committee should have fully utilized its evidence gathering powers under s 86 and s 87 (4) of the Act to require the attendance of the Mr SP, Mr RM, Mr MT and TSC Chairman plus any other relevant witnesses to give evidence on the matter and to be examined and to hear their side of the story. It would also give them opportunity to test the evidence given by the plaintiff. The TSCDC would then have assessed the evidence and made findings as to whether the payments were made and whether such payments influenced their decisions, if any, in instigating the charges to be laid and also whether the proceedings of NEBDC were influenced by those who received the payment. If these facts were established by the evidence, it would have been open to TSCDC to allow the appeal on this ground alone and quash the entire disciplinary proceedings. The issues raised by the fresh evidence were serious and of importance to the TSC and the teaching service and required proper determination. The interest of justice, fairness and good administration demanded the fresh evidence be accorded significance and fully and properly tried. The committee should have facilitated ample opportunity for all persons affected by the allegations to attend the hearing and to give their evidence and address. The DOE should be in a position to fund the reasonable travel and accommodation costs of witnesses, most of whom would be its own officers, which are associated with their attendance at the hearing. The TSCDC unfairly required the plaintiff to meet those witnesses’ expenses. In my view the plaintiff was not accorded a fair hearing by the TSCDC on the issue of fresh evidence on the payments allegedly made to the named persons. In the circumstances, it is only fair and proper that the matter should be remitted back to the TSCDC for a rehearing and proper determination on this issue alone. This court is in no better position to make any such determination owing to lack of evidence.
38. For these reasons, I grant the application for judicial review, quash the decision of TSCDC on the fresh evidence on bias and remit the matter back to TSCDC for rehearing on this issue alone. I uphold TSCDC’s decision in respect of the other grounds of appeal. In the meantime, the decision of NEBDC shall remain in force pending the rehearing and determination on the issue of fresh evidence on bias, by TSCDC.
39. Having reached this conclusion, it is unnecessary to determine the remaining ground under the Wednesbury principle of unreasonableness. I also consider it unnecessary to consider the question of damages. The plaintiff may seek damages in lost employment entitlements before the TSCDC if she succeeds on the question of bias and she is restored to her former position and position level.
40. The formal orders of the Court are:
______________________________________
Stevens Lawyers: Lawyer for the plaintiff
Solicitor-General: Lawyer for the defendants
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