Public Service Commission v Lai Swee Lin Linda: Judicial Review & Public Law

The Public Service Commission appealed a High Court decision granting Ms. Linda Lai Swee Lin leave to apply for judicial review of the PSC's decisions to extend her probation and terminate her employment as a Senior Officer Grade III. The Court of Appeal allowed the appeal, holding that the matters complained of by Ms. Lai were not susceptible to judicial review as they pertained to a contractual employment relationship and did not involve an element of public law.

1. Case Overview

1.1 Court

Court of Appeal

1.2 Outcome

Appeal allowed.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Appeal regarding judicial review of Public Service Commission's decisions on employee probation and termination. Court held no public law element.

1.7 Decision Date

28 January 2001

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Public Service Commission	Appellant	Government Agency	Appeal allowed.	Won	Jeffrey Chan, Hema Subramaniam
Lai Swee Lin Linda	Respondent	Individual	Appeal dismissed	Lost	Harpreet Singh Nehal, Rama S Tiwari, Adrian Kwong

3. Judges

Judge Name	Title	Delivered Judgment
Chao Hick Tin	Justice of the Court of Appeal	Yes
Lai Kew Chai	Judge	No
L P Thean	Justice of the Court of Appeal	No

4. Counsels

Counsel Name	Organization
Jeffrey Chan	Attorney General's Chambers
Hema Subramaniam	Attorney General's Chambers
Harpreet Singh Nehal	Drew & Napier
Rama S Tiwari	Drew & Napier
Adrian Kwong	Drew & Napier

4. Facts

Ms. Lai was appointed as a Senior Officer Grade III at the Land Office, Ministry of Law, in November 1996.
Ms. Lai's letter of appointment stated her tenure was 'Permanent' with a one-year probationary period.
The Civil Service Instructions Manual (IM) was applicable to Ms. Lai's employment.
Ms. Lai did not receive any adverse reports or notification of shortcomings during her probationary period.
Ms. Lai sent an email highlighting a backlog of work and alleging inaccurate reporting by senior officers.
Ms. Lai was verbally informed that her appointment would not be confirmed due to frictions with a Director of Alienation.
Ms. Lai received a letter extending her probationary period nine months after the initial period ended.
Ms. Lai's service was terminated by the Senior Personnel Board F.

5. Formal Citations

Public Service Commission v Lai Swee Lin Linda, CA 69/2000, [2001] SGCA 5

6. Timeline

Date	Event
1979-01-01	Ms. Lai graduated from the University of Malaya with an LL B degree.
1991-01-01	Ms. Lai migrated to Singapore.
1993-01-01	Ms. Lai graduated from the National University of Singapore with an LL M degree.
1994-01-01	Ms. Lai became a Singapore citizen.
1996-11-19	Ms. Lai received letter of appointment as Senior Officer Grade III at the Land Office, Ministry of Law.
1996-11-28	Ms. Lai assumed duty at the Land Office.
1997-06-30	Ms. Lai was requested to take on added responsibilities.
1997-11-27	Ms. Lai was expected to be informed of confirmation, extension of probation, or termination.
1998-05-29	Meeting of senior officers in the Land Office regarding land title delays.
1998-05-30	Ms. Lai sent an email alleging inaccurate reflection of work backlog.
1998-05-31	Ms. Lai was verbally informed that her appointment would not be confirmed.
1998-06-01	Ms. Lai was re-designated as Head (Remnant Land).
1998-08-19	Ms. Lai received a letter stating her probationary period was extended.
1998-09-01	Ms. Lai wrote to the new Commissioner setting out her grievances.
1998-09-01	Ms. Lai requested a transfer to the State Land Division.
1998-09-01	Director of Alienation 1 informed Ms. Lai that the Commissioner did not approve the transfer.
1998-09-01	Ms. Lai was informed to look for another job elsewhere.
1998-09-30	Ms. Lai sent a letter to the Permanent Secretary of the Ministry of Law.
1998-09-30	Deputy Director (Human Resources) of the Ministry wrote to Ms. Lai regarding appeal submission.
1998-11-27	Ms. Lai's extended probation ended.
1998-12-17	The Senior Personnel Board F terminated Ms. Lai's service.
1998-12-20	Ms. Lai wrote to the Minister for Law, stating her grievances.
1998-12-26	Ms. Lai wrote to the Minister for Law, stating her grievances.
1998-12-29	The Deputy Secretary of the Ministry of Law advised Ms. Lai to appeal to the Appeals Board.
1999-01-23	Ms. Lai appealed to the Appeals Board.
1999-03-22	The Appeals Board turned down Ms. Lai's appeal.
1999-04-03	Ms. Lai appealed for a second chance in a contrite letter to the Appeals Board.
1999-04-07	The Appeals Board advised Ms. Lai to appeal to the PSC.
1999-05-22	Ms. Lai appealed to the PSC.
1999-05-25	Ms. Lai was informed that she was out of time for the appeal.
1999-05-28	Ms. Lai requested for a waiver of the time requirement.
1999-06-03	Waiver of time requirement was granted.
1999-06-10	Ms. Lai submitted her appeal to the PSC.
1999-07-21	Ms. Lai was informed by the PSC that her appeal was unsuccessful.
2000-01-20	Ms. Lai initiated proceedings seeking leave to apply for the order of certiorari and mandamus.
2001-01-29	Court of Appeal decision.

7. Legal Issues

Judicial Review
- Outcome: The Court of Appeal held that the matters complained of by Ms. Lai were not susceptible to judicial review.
- Category: Procedural
- Sub-Issues:
  - Whether matters are susceptible to judicial review
  - Whether an element of public law is involved
- Related Cases:
  - [1996] 1 SLR 609
  - [1982] AC 617
  - [1985] 2 All ER 465
  - [1983] 1 All ER 241
  - [1985] QB 152
  - [1990] ICR 808
  - [1990] ICR 824
  - [1992] 1 All ER 897
  - [1994] 6 Admin LR 778
  - [1985] AC 374
  - [1987] QB 815
  - [1953] 1 QB 704
Public vs. Private Law
- Outcome: The Court of Appeal held that the relationship between Ms. Lai and the government was one of employer and employee, governed by contract, and that the decisions made were not an exercise of statutory power.
- Category: Substantive
- Sub-Issues:
  - Whether the relationship between parties is governed by contract or law
  - Whether the source of power exercised in making decisions is derived from contract or law
  - Whether Civil Service Instructions Manual has statutory force
- Related Cases:
  - [1985] QB 152
  - [1990] ICR 808
  - [1990] ICR 824
  - [1992] 1 All ER 897
  - [1994] 6 Admin LR 778

8. Remedies Sought

Order of Certiorari to quash decisions
Order of Mandamus to reinstate Ms. Lai

9. Cause of Actions

Breach of Contract
Unfair Dismissal

10. Practice Areas

Civil Litigation
Employment Litigation
Administrative Law

11. Industries

Government

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Chan Hiang Ling Colin v Minister for Information and the Arts	Court of Appeal	Yes	[1996] 1 SLR 609	Singapore	Cited for the approach to be adopted by the court in dealing with an ex parte application for leave for judicial review, specifically regarding the threshold for establishing a prima facie case of reasonable suspicion.
Inland Revenue Commissions v National Federation of Self Employed and Small Businesses Ltd	House of Lords	Yes	[1982] AC 617	United Kingdom	Cited for the principle that the purpose of requiring leave to start proceedings for remedies in public law is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error.
R v Commissioner for the Special Purposes of the Income Tax Acts, ex p Stipplechoice Ltd	English Court of Appeal	Yes	[1985] 2 All ER 465	United Kingdom	Cited as an example where leave was granted for judicial review after the applicant had shown a good arguable case and established a prima facie case.
Associated Provincial Picture Houses Ltd v Wednesbury Corp	Court of Appeal	Yes	[1948] 1 KB 223	United Kingdom	Cited in relation to the concept of Wednesbury unreasonableness, but ultimately distinguished as not applicable to the facts of the case.
R v British Broadcasting Corporation, ex p Lavelle	Queen's Bench Division	Yes	[1983] 1 All ER 241	United Kingdom	Cited for the principle that remedies of mandamus, certiorari, and prohibition are not available for enforcing private rights and are inappropriate for enforcing ordinary obligations owed by a master to his servant.
R v East Berkshire Health Authority, ex p Walsh	Court of Appeal	Yes	[1985] QB 152	United Kingdom	Cited as a leading case on whether a dismissal from employment by a public authority is subject to public law remedies, emphasizing that employment by a public authority does not per se inject any element of public law.
R v Derbyshire County Council, ex p Noble	Court of Appeal	Yes	[1990] ICR 808	United Kingdom	Cited as another case where a claim by an officer employed by a local authority was held to be one involving only private law, reinforcing the principle that the termination of employment does not automatically give rise to public law remedies.
McClaren v Home Office	Court of Appeal	Yes	[1990] ICR 824	United Kingdom	Cited to demonstrate the principle that an employee of a public body is normally in the same situation as other employees regarding personal claims against an employer, but also highlighting situations where judicial review may be appropriate.
R v Lord Chancellor`s Department, ex p Nangle	Queen's Bench Division	Yes	[1992] 1 All ER 897	United Kingdom	Cited for the principle that if all the incidents of a contract are present in the relationship between the applicant and the Crown, there is a contractual relationship between the applicant as the employee and the Crown as the employer, and this relationship is governed by private and not public law.
R v Crown Prosecution Service, ex p Hogg	High Court	Yes	[1994] 6 Admin LR 778	United Kingdom	Cited for the principle that the mere facts that an employee was employed by a public body, or performed public functions, or had any particular designation were not determinative of the question whether the dismissal was the subject of public law remedy.
Gnanasundram v Public Services Commission	High Court	Yes	[1966] 1 MLJ 157	Malaysia	Cited by the appellant, but distinguished by the court as not applicable because it did not involve the incorporation of civil service instructions into the contract.
Council of Civil Service Unions & Ors v Minister for the Civil Service	House of Lords	Yes	[1985] AC 374	United Kingdom	Cited for the principle that for a decision to be susceptible to judicial review, the decision-maker must be empowered by public law to make decisions that will lead to administrative action.
R v Panel on Take-overs and Mergers, ex p Datafin plc & Anor	Court of Appeal	Yes	[1987] QB 815	United Kingdom	Cited for the principle that the source of power is often decisive in determining whether a body is subject to judicial review, with statutory power leading to judicial review and contractual power not.
R v National Joint Council for the Craft of Dental Technicians (Dispute Committee), ex p Neate	Queen's Bench Division	Yes	[1953] 1 QB 704	United Kingdom	Cited as an example of a case where the source of power was contractual, and therefore the arbitrator was not subject to judicial review.

13. Applicable Rules

Rule Name
Order 53 r 1 of the Rules of Court

14. Applicable Statutes

Statute Name	Jurisdiction
Article 110(1) of the Constitution of Singapore	Singapore
Prosecution of Offences Act 1985 s 1(1)	United Kingdom

15. Key Terms and Keywords

15.1 Key Terms

Judicial Review
Public Law
Private Law
Probationary Period
Civil Service Instructions Manual
Permanent Secretary
Senior Personnel Board
Public Service Commission
Contract of Employment
Statutory Power

15.2 Keywords

Judicial Review
Public Service Commission
Employment
Probation
Singapore
Administrative Law

16. Subjects

Administrative Law
Employment Law
Civil Procedure

17. Areas of Law

Administrative Law
Judicial Review
Contract Law
Employment Law
Public Law