Jill Spruce v. The University of Hong Kong

CACV000058/1991

Judicial Review - Error of law on the face of the record - Remedies available - Overriding discretion of the Court in relation to remedy.

On appeal from a finding of the High Court that there were no grounds for judicial review it was held that a decision by the University of Hong Kong to dismiss a teacher was susceptible to review by reason of error of law on the face of the record. However, in the exercise of its discretion the Court of Appeal declined to make an order of certiorari quashing the decision and dismissed the appeal. The University was ordered to pay the teacher's costs.

BETWEEN

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Coram: Sir Derek Cons, Ag. C.J., Kempster & Macdougall, JJ.A.

Dates of hearing: 6 - 9, 12 - 13 and 15 August 1991

Date of delivery of judgment: 20 August 1991

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JUDGMENT

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Kempster, J.A. (giving the judgment of the Court):

1. This is an appeal from a reserved judgment of Jones, J. delivered on 4 April 1991 whereby he dismissed the application of Mrs. Jill Spruce (the appellant) for an order quashing the decision of the University of Hong Kong (the University) made on July 26 1990 to terminate her appointment as Senior Lecturer of the Department of Law and for a declaration that the University had failed to make due enquiry into the relevant facts. The appellant also seeks to set aside the direction that she should vacate premises then in her occupation and pay to the University damages for trespass embodied in the formal order of even date by reason of an earlier undertaking which she had given.

2. The Notice of Appeal asks for the order of April 4 to be reversed, for specific orders in respect of costs and "for such further or other order as may be just." At our request Mr. Christopher Smith, for the appellant, has clarified the latter prayer. The appellant seeks an order of certiorari and/or a declaration and/or damages.

3. The facts leading up to the decision impugned are clearly set out in the judgment of Jones, J. Rather than repeat them we will turn to our first task which is to ascertain the terms of the contract of employment concluded between the appellant and the University.

4. By letter dated 29 June 1983 the University of Hong Kong offered the appellant probationary employment as a teacher on conditions therein set out and, subject to such conditions, on the terms of "Terms of Service I" enclosed. "Terms of Service I" were contained in a pamphlet the Fifth Edition of which had been approved by the Council of the University on 28 February 1980 and, by the date of the letter, revised in various particulars on five occasions. The appellant was required to accept the offer by signing and returning a copy of the letter and of "Terms of Service I". It is common ground that on 11 July 1983 she signed and returned a copy of the letter and thereafter came to Hong Kong discharged the duties of a probationary teacher for reward and was called to the Hong Kong Bar. On principles of regularity, quite apart from the terms of a letter to her from the University dated October 25 1985, it is to be presumed or inferred that she and the Secretary of the University also signed the pamphlet albeit that document has not been produced. By like token it is to be presumed or inferred that the pamphlet in question was the Fifth Edition of "Terms of Service I".

The material terms of that edition are as follows:-

"2.    THE CONTRACT

The contract between the University and an appointee shall be defined in a Letter of Appointment and in these Terms of Service, both of which shall be signed by or on behalf of the Secretary on behalf of the University and by the appointee, and shall be subject to the Ordinance and Statutes of the University as amended from time to time. ...

4.     DUTIES

(a)     The duties of a teacher shall be:

5. The University of Hong Kong Ordinance (Cap. 1053) provides as follows:-

Turning to the statutes, Statute X11 reads:-

"...2. The teachers whose services are exclusively at the disposal of the University shall not during the tenure of their appointments engage in outside practice for reward without the consent of the Council."

The appellant's services were not expressed to be "exclusively at the disposal of the University". The services of those teachers whose appointments were subject to the 1972 edition of "Terms of Service I", and term 4(e) in particular, were. A term providing for exclusive service is not to be implied from the nature of the appellant's appointment though requirements that she should not take other employment which would disable her from discharging her duties to the University or adversely affect that institution might well be. Hivac v. Park Royal Scientific Instruments [1946] Ch 169.

6. Provision for consent to outside practice by teachers whose services were exclusively at the disposal of the University is to be found in the "Memorandum of Guidance and regulations governing Outside Practice by Teachers" approved by the Council on 24 June 1982. There is no evidence to suggest that regulations were normally validated by the University in any other manner. The Minute cross refers to documents dated 1 June 1982 (11/682), 25 February 1982 (CM29), 8 February 1982 (366/1181) and documents 276/1081. The Memorandum and regulations are to be found, and as far as the appellant was concerned only to be found not, like other less domestic regulations, in the University Calendar but in "Staff Manual" dated September 1982 and expressed to apply as from 1 April 1983. Subsequent editions of the Manual show changes in the Memorandum and regulations. By the foreword to the September 1982 and later manuals it is specifically stated that "the Staff Manual is issued for information only and does not form part of the University's contracts with its staff." While the appellant was prima facie bound by regulations validly made whether or not she was aware of them she was not so to be bound when the University positively asserted that they formed no part of her contract of employment. The suggestion that she was in some way "statutorily" bound by them is unsustainable. That she was aware of the Memorandum and regulations and was then content to conform with their requirements her letter to the Acting Dean of the School of Law dated 8 November 1983 makes plain.

7. The material passages of the Memorandum and regulations read:-

8. Quite apart from contract the University could not claim that a teacher whose services were exclusively at its disposal had acted without the consent of the Council if he or she had undertaken a commitment to practice with the approval of the Head of Department. Conversely, the University could so claim if he or she had acted without such approval. In the latter eventuality the University would be entitled to invoke Statute XII-2. Hughes v. Metropolitan Rly (1877) 2 App. Cas. 439. Further, we do not consider that a teacher could be heard to invoke approval granted under paragraph 6 of the Memorandum and regulations if he or she had failed to comply with sub-paragraph I(i). But this is academic as far as the appellant is concerned. She was entitled to say that, the Memorandum and regulations being represented as non-contractual, she was free to engage in outside practice so long as the performance of her University duties was not adversely affected within the meaning of term 4(e) of "Terms of Service I Fifth Edition".

9. The agreement which the applicant concluded fully incorporated the promise of and realised the expectation derived both from the autnorised advertisement which she had read namely: "private practice on a basis agreed with the University is permitted" and from the oral representations to similar effect earlier made to her by members of the Law Faculty whether or not they were acting on the University's behalf.

10. The question was canvassed before us as to whether or not a Head of Department could revoke approval for outside practice given to a teacher whose services were exclusively at the disposal of the University so that the University might again rely on Statute XII-2. In our opinion, by analogy with the law applicable to contracts strictly so described and subject therefore to reasonable notice and the terms of the regulations, he could. Tool Metal Manufacturing Co. Ltd. v. Tungsten Electric Co. Ltd. [1955] 1 WLR 761. That this might occur and was also reasonably to be expected must have been known to the appellant not later than 19 May 1988 when she attended a staff meeting at which approval to revocation in certain circumstances was given. In letters to the appellant dated 12 and 13 October 1988 the position was made clear beyond a peradventure. Nonetheless the University had no such contractual right as regards the appellant. Further, the terms of regulation 8 would seem to preclude peremptory action by a Head of Department in any event.

11. On 30 October 1985 the appellant had agreed to an extension of her probationary employment and on 4 June 1986 to reappointment as Senior Lecturer on a substantive basis on the same terms as those agreed in 1983 save that "Terms of Service I Fifth Edition" had become applicable as finally amended on June 30 1983. It follows that at all material times she was a teacher in substantive employment and entitled to engage in outside practice so long as the performance of her University duties did not suffer. Disciplinary proceedings were instituted on the basis that her practice at the Bar had involved breaches of the Memorandum and regulations and adversely affected her University duties within the meaning of "Terms of Service I Fifth Edition" term 4(e)i.

12. In the premises the assumption in the March 1988 Report of the Committee on Personnel Matters, to which the Council had delegated its duty to enquire into the facts as opposed to the exercise of judicial functions, that the Memorandum and regulations applied to the applicant was as ill founded as the implicit finding to the same effect made in its Report dated June 12 1990. Accordingly the findings that the appellant had failed to submit annual returns and had acted in breach of the Memorandum and regulations disclose no breach of contract but the finding that she had engaged in outside practice to the detriment of her University duties does. The propriety of the delegation may be thought established by section 11 of the Ordinance and by the reasoning of the Privy Council in Jeffs v. New Zealand Dairy Production and Marketing Board [1967] AC 551 at p.568.

13. The error of law was repeated by the Sub-Committee, to which the Senate had delegated preliminary advisory functions, in its Report recommending dismissal for good cause; the cause being neglect of the appellant's duty as a University teacher. By a majority the Senate accepted that Report and forwarded it to the Council as its advice on the findings of the Committee on Personnel Matters pursuant to section 12(9) of the Ordinance.

14. The minute of the meeting of the council held on 26 July 1990 shows that it took a different view of the "good cause" shown by the findings and, it may be, attributed particular importance to the unhappy personal relationships and breakdown of trust which had developed between the appellant and the Head of her Department and, possibly, other members of the Faculty:-

"2. The Council, in the matter of Mrs. D.J. Spruce, Senior Lecturer in law:

15. For reasons already explained "the facts as determined by the enquiries" were vitiated by error of law on the face of the record as to the applicability to the appellant of the Memorandum and regulations. We cannot accept that the Council would assuredly have resolved as it did had the soundness of the appellant's contention as to the terms of her contract been appreciated. The pattern of her behaviour was inclusive of consistent denial of the applicability of the Memorandum and regulations to her contract of employment and of false explanations for failures to meet teaching commitments; perhaps reflecting an appreciation that such failures had been detrimental to the performance of University duties.

16. We find the decision to terminate the appellant's employment, which she has challenged by way of judicial review rather than by appeal to the Chancellor or claim for damages for wrongful dismissal, susceptible to an order to quash.

17. The other grounds of appeal rely upon certain procedural irregularities. As fully explained by Jones, J. none resulted in unfairness to the appellant or objectively justified the deep sense of grievance she undoubtedly feels. Indeed, the University was at pains to heed the frequent suggestions made by solicitors acting on her behalf during the course of the disciplinary proceedings. There was due enquiry and no call for the court's intervention in the context of procedure has been made out.

18. We are bound by Privy Council authority to find that error of law on the face of the record does not necessarily import excess of jurisdiction on the part of the University albeit there is strong and almost contemporaneous House of Lords persuasive authority to the contrary,. South East Asia Fire Bricks Sdn Bhd v. Non-Metallic Mineral Products Manufacturing Employees Union [1981] AC 363; In re Racal Communications Ltd. [1981] AC 374 at p.383 per Lord Diplock. The error in the present instance is not one which goes to jurisdiction and accordingly the decision of the Council remains intra vires and effective until and unless quashed and no remedy other than certiorari would seem appropriate. Punton v. Ministry of Pensions [1964] 1 WLR 226. No claim for substantial damages has been pursued at any stage of these proceedings. The allegation below was that

"the Applicant has suffered loss and damage in that the Applicant has incurred, in the course of the proceedings instituted for the termination of her appointment, costs and expenses up to and including the date of the decision on 26th July 1990, and continuing."

19. The "continuing" costs will be dealt with in the order of this court. Earlier costs are clearly not an apt subject of an award of damages. Damages can only be awarded where the court is satisfied, "that, if the claim had been made in an action begun by the applicant at the time of making his application he would have been awarded damages": Supreme Court Ordinance (Cap. 4) Sec.21K(4)(b) and RSC 0.53, r.7(1)(b). Even had we been satisfied that the applicant would necessarily have succeeded in a claim for wrongful dismissal, which we are not, an order for damages would not be appropriate.

20. If this court makes an order of certiorari quashing the decision of the Council of the University the effect will be, retrospectively, to reinstate the appellant as a substantive teacher in the employment of the University. Having regard to the unhappy relationships and breakdown of trust already mentioned and to alternative arrangements which the University must at least have put in train since July 26 1990 we do not think it a wise or proper exercise of discretion to make such an order. That we have a discretion seems to be beyond argument. Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155. We regard the first consideration as so cogent that even if excess of jurisdiction or unfairness had been established we would not have thought it proper for this court so to exercise its discretion as to make an order of certiorari or, bearing the matters set out in Section 21K(2) of the Supreme Court Ordinance and RSC 0.53, r.1(2) in mind, a declaration having like effect. It would be tantamount to decreeing specific performance of a contract of personal service. Whitwood Chemical Co. v. Hardman [1891] 2 Ch 416 at p.426 per Lindley, L.J.

21. In the event we dismiss this appeal but, subject to submissions by counsel, order the University to pay the appellant's costs before Godfrey, J., before Jones, J. and, in so far as not already subject to an order in her favour, before this court.

Representation:

Mr. Christopner Smith & Mr. Tim Kwok (M/s Herbert Smith) for Applicant/Appellant

Mr. Denis Chang, Q.C. & Mr. Winston Poon (M/s J.S.M.) for Respondents