Rowan Pennington-Benton Instructed by Charles Russell Speechlys LLP (London) for the Respondents
Lord Hodge:
This appeal has at its heart the assertion that a judge, who had heard a judicial review application, failed to exercise a discretion to bring in a new party to the legal process, although none of the parties had requested that he do so. The appellant (“Dr Chang”) also submits that the judge failed to take other steps to arrange that a decision which was material to the outcome of the application be fully investigated at trial, although not requested to do so.
(1) Factual background
Dr Chang is a medical doctor who was initially appointed by the Public Service Commission (“PSC”) and who at the relevant time held the post of Specialist Medical Officer (Anaesthetics) (“SMO”) at the Port of Spain General Hospital. As a result of healthcare reforms in the 1990s the hospital came to be controlled and managed by the North West Regional Health Authority (“NWRHA”). Dr Chang on account of his post as SMO purportedly became responsible for the supervision of doctors who were employees of the NWRHA but he regarded that as inconsistent with the regulations which govern the post of SMO. A dispute arose as to whether Dr Chang was required to supervise such employees and he was suspended for a time. When he returned to work, he again refused to supervise NWRHA doctors and therefore could not be rostered to work at the hospital.
On 26 April 2002 Dr Chang applied to the PSC for early retirement purportedly under regulation 51(1)(c) of the Public Service Commission Regulations. He gave as his reasons for seeking early retirement his age, that his peace of mind had been disturbed by the events which had affected serving medical officers in public service in recent years and that his children had reached an age which required him to earn sufficient money to educate them. In a further letter dated 1 May 2002 Dr Chang amended his application to include the words “with effect from 1 May 2002” to give notice of when he wished his retirement to take effect.
Dr Chang stated in his letters of 26 April and 1 May 2002 that he had been assured by the hospital’s Medical Chief of Staff that his application would receive favourable consideration. Steps were then taken by the respondents to process Dr Chang’s request. By letter of 12 June 2002 the Ministry of Health requested Dr Chang to provide certain information to facilitate the processing of his entitlement to retirement benefits and he responded with the requested information. Dr Chang was absent from work from 1 May 2002 onwards. On 10 September 2002 he ceased to be paid his salary. On the same day, the Medical Chief of Staff at the hospital wrote to the Permanent Secretary at the Department of Health to enquire about the progress of Dr Chang’s application for early retirement as he had not been rostered for work in the hospital because he refused to supervise NWRHA doctors.
Dr Chang wrote to the PSC on 16 September 2002 stating that he had decided to withdraw his application for early retirement. He appears to have received no response. On 22 October 2002 Dr Chang wrote to the respondents to protest that payment of his salary had been stopped unlawfully and to request the resumption of its payment.
After further letters failed to resolve the issue, Dr Chang obtained leave to institute judicial review proceedings concerning the lawfulness of the withdrawal of his salary payments. It is not necessary to narrate all the procedural steps in those proceedings. The Board refers only to those steps which are germane to the challenge which Dr Chang now makes. On 11 August 2006 the respondents lodged an affidavit by Ms Shirley Belle which asserted that, in accordance with a circular issued by the PSC dated 5 December 2000, the proper practice for handling early retirements was for the relevant government department to process them. She asserted that the period from 1 May 2002 until 9 September 2002 was to be treated as Dr Chang’s taking of vacation and pre-retirement leave consequent upon his application for early retirement. That application was still being processed on 9 September 2002. She explained that on 8 November 2002 the PSC submitted Dr Chang’s letter of 16 September 2002 to the Ministry of Health asking for comments and recommendations. The second respondent (the Permanent Secretary at the Ministry of Health) responded in a memorandum of 11 March 2003 in which she informed the Director of Personnel Administration of the PSC that Dr Chang should be regarded as having relinquished his appointment when he failed to resume his duties after using up his vacation leave. She asserted that, in those circumstances, Dr Chang was not entitled to be paid any salary after 9 September 2002.
Those documents formed the initial battle lines of the parties. But matters became more complicated as a result of four letters (“the four letters”) which, as explained below, gave rise to an assertion that the PSC had accepted Dr Chang’s retirement as from 9 September 2002. The first letter was from the PSC to Dr Chang dated 13 October 2009, which responded to his letter of 16 September 2002 in which he had sought to withdraw his application for early retirement. In this letter the PSC stated tersely that it “had already retired you from the Public Service with effect from 9th September, 2002”. Unsurprisingly, in the second letter, dated 21 December 2009, Dr Chang responded by asking to be informed of the date when the decision to retire him had been made. This in turn gave rise to the third letter, dated 26 January 2010, in which the PSC informed Dr Chang that the decision was made at a meeting on 1 October 2002. The fourth letter was a letter to Dr Chang from the second respondent dated 28 July 2011, in which the Permanent Secretary noted that the PSC had retired him with effect from 9 September 2002, informed Dr Chang that he qualified for a retirement pension from the age of 55, and requested documents to enable his retirement benefits to be processed.
In an application dated 4 March 2015, Dr Chang’s legal team applied for leave to adduce as fresh evidence the four letters which, they said, “would have a material effect upon the decision of the court” in the determination of the judicial review application. In his supporting affidavit, Dr Chang stated that he had been advised that the letters were material evidence for the proper determination of whether the respondents had wrongly stopped the payment of his salary with effect from 10 September 2002. Ironically, in view of the way matters progressed in the judicial review hearing, the respondents opposed the admission of the four letters into evidence. Rampersad J in a decision dated 17 April 2015, at the outset of the hearing on the judicial review application, allowed the four letters to be adduced as fresh evidence. The hearing consisted of the cross-examination of Dr Chang. Thereafter, Rampersad J ordered the parties to file and exchange written submissions by 1 July 2015 and any reply submissions by 15 July 2015.
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