A judicial review may be done only against the public administration

A call to include persons with interest in the action was turned down because the action was a judicial review. It is essential that a judicial review is filed against public bodies. This was held in a judgment delivered by Judge Doreen Clarke in Lucian Brincat vs Public Service Commission et on 14 January 2025.

In her application, Brincat explained that she is a senior midwife at Mater Dei Hospital with 27 years of experience. In March 2023, there was a call for a Charge Midwife at Mater Dei Hospital (MDH). Brincat applied together with 21 others. The results were issued in July 2023 on the notice board and she found out that she came 20th. She filed a petition to the Public Service Commission.

The Commission asked for further submissions. It was explained in some detail that the adjudicator made serious errors when allocating points. Brincat is active with the Malta Union of Midwives and Nurses (MUMN) and she held the position of chairperson of the midwives’ subcommittee. A member of the adjudication board was not accepted to form part of the MUMN. Brincat claims that this was pay back and this member marked her low because of this. However, the Public Service Commission (PSC) did not change the result of the call.

Brincat as a plaintiff of the case asked that the court declare the PSC’s decision an abuse and also to declare that the call for Charge Midwife be annulled.

The Permanent Secretary in the Ministry for Health filed a statement of defence and argued that he is not the correct party to be called into the case. The Permanent Secretary (PS) held that the correct procedure was followed.

The PS challenged some of the facts and held that the adjudication board based their selection on the Manual on Industrial Relations and the Selection and Appointment Process under Delegated Authority in the Malta Public Service. The criteria are approved by the PSC. The Plaintiff did not object to any of the adjudication board members as she had a right to do. The objection took place only when the results were published.

The PS insisted that the board members did follow the criteria laid out in the manual. Furthermore, the decision taken was not an abuse by a public authority.

The PSC and the State Advocate also filed a statement of defence. The State Advocate held that he should not be a party to this case in terms of Article 181B of the Code of Organisaton and Civil Procedure (COCP). The claim to annul the call will affect the other candidates and therefore, all the other candidates should be called into suit. The PSC also argued that the Court cannot reverse the decision but may annul that decision and if this is the case, the call should be sent back to the adjudicating board.

Judge Doreen Clarke presiding over the First Hall of the Civil Court held it was first dealing with whether the other candidates should be called into suite in terms of Article 237 and 961 of the COCP. Darmanin on the other hand held that this is a judicial review case and therefore deals with an administrative decision.

The Court held that this was dealt with in Dr Tanya Sciberras Camilleri noe vs Dr Emanuel Mallia, decided on 14 April 2015. This case dealt with the decision to appoint the service provider in the Individual Investment Programme. The other bidders were not part of the action. In this judgment the Court pointed out that such a plea must be raised immediately. Such a plea must have three elements, the first being that a court case must include all those who are interested.

The second is that the judgment must be effective and that the action must not allow multitude of the same actions. The plea must be taken in the context of the action it was made. This action is a judicial review action which has particular characteristics.

The action is against the public administration. Therefore, there is no need to have the other candidates involved in the action.

Judge Clarke agreed with this judgement. The Court agreed that if the judicial review is upheld it will affect the other candidates, but the action was filed against the public administration and therefore complete. It is these authorities that can explain the adjudication process.

Therefore, the Court turned down these pleas and ordered the case to continue with the same Defendants.