Jill Spruce v. The University of Hong Kong

CACV000058A/1991

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BETWEEN

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Coram: Hon. Sir Derek Cons, V.P., Clough & Macdougall, JJ.A.

Date of hearing: 4 December 1991

Date of delivery of judgment: 4 December 1991

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JUDGMENT

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Sir Derek Cons, V.P.:

1. On the 26th July 1990 the Council of the University of Hong Kong, after due enquiry and receiving the advice of the Senate as required by s. 12 sub-s. 9 of the University of Hong Kong Ordinance, Cap. 1053, dismissed Mrs. Jill Spruce from her post as Senior Lecturer in the Department of Law. On the 4th of April this year her application for judicial review of that decision was refused in the court below.

2. On appeal to this court it was held, on the 20th of August this year, that the proceedings within the university were tainted by an error of law, that is a misunderstanding that a particular memorandum and regulations were  applicable to Mrs. Spruce. Nevertheless in its discretion this court declined to made an order of certiorari. Mrs. Spruce applies this afternoon for leave to appeal further to Her Majesty in Council.  We have had the great advantage of a detailed skeleton argument from her counsel delivered a few days ago which has saved considerable time in court this afternoon.

3. The appropriate Order in Council provides that:

"an appeal shall lie -

4. The notice of motion sets out some ten questions which it suggests are of the requisite great general or public importance. In my view only one, or perhaps half of one, does fall within that category. The difficulties which need to be resolved in the present instance -principally whether this court had the discretion in the circumstances to refuse to make the order - are discussed in various parts of Professor Wade's book on Administrative Law, and in particular at passages commencing at pp. 299, 348 and 561 of the Sixth Edition. Submissions upon the lines mentioned there were encapsulated in the argument before us in a document by Mr. Smith, who appeared for Mrs. Spruce in the appeal, as he does today, and headed "Submission as to discretion and remedies". They were dealt with in the judgment of this court from p. 13 onwards. The question for consideration as it is framed at the moment is "whether a court can, by the exercise of discretion, overcome an express statutory prohibition". In my opinion that raises a question of sufficient importance and I would give leave accordingly.

5. It is also suggested that, under the "or otherwise" provision of the rule, leave should be given by reason of this court's failure to award damages. It was observed by the bench in the course of the appeal that no claim for substantial damages had been made in the papers before the judge below nor in the notice of appeal. No such claim was pursued in the most detailed skeleton argument which was submitted oh that occasion, or in any other way. For my part I would not grant leave on that basis.

6. The second suggestion under the "or otherwise" provision relates to the exercise of the discretion itself. In my view any argument in that respect will be fully covered by arguments on the question I have already mentioned.

7. Finally there is the question as to whether Mrs. Spruce has an appeal as of right. As to that Mr. Chang for the University has adopted a cautious approach. But it is clear, at least in my view, that Mrs. Spruce has a claim to a civil right in the sense of a right to teach for reward in the University of Hong Kong: c.f. P.J. Miers v. The Royal Hony Kong Jockey Club [1991] 2 HKLR 1. According to an affidavit filed since our decision was given the salary she earned in that position was approximately $450,000 in the financial year ending on the 31st March 1990.  In addition she had the benefit of an apartment at considerably less than its market value, so that the total would be well above the half million prescribed by the rule. I am not aware of any authority which helps to evaluate a continuing right of that nature and no authority has been quoted to us. It is possible, on the slender authority of a bracketed comment in the advice of their Lordships in Miers case - "that he earned a substantial income (well in excess of $200,000 a year) - that it may be proper to take an annual value. Alternatively Mrs. Spruce's income between the time of her dismissal from the university and at least the hearing of her appeal in this court would have been more than the requisite amount. So for my part I am satisfied that there is additionally an appeal as of right to Her Majesty in Council.

8. If my Lords agree, as I understand they do, I would suggest that the leave is made subject to the usual conditions, that is provision of security in the sum of $200,000 to be approved by the Registrar of this court and that the record be prepared and despatched within a period of three months.

Clough, J.A.:

9. I  agree.

Macdougall, J.A.:

10. I also agree.

Representation:

Christopher Smith (M/s. Herbert Smith) for the applicant

Denis Chang, Q.C., and Winston Poon (M/s. J.S.M.) for the respondent