Ableton Lawes v Attorney-General for Jamaica

• Jurisdiction: Jamaica
• Judge: Dukharan JA,Phillips JA,McIntosh JA
• Judgment Date: 07 November 2014
• Neutral Citation: JM 2014 CA 110
• Docket Number: CIVIL APPEAL NO 3/2012 SUPREME COURT CIVIL APPEAL NO 4/2012
• Court: Court of Appeal (Jamaica)
• Date: 07 November 2014

[2014] JMCA Civ 40

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Before:

The Hon Mr Justice Dukharan JA

The Hon Miss Justice Phillips JA

The Hon Mrs Justice McIntosh JA

CIVIL APPEAL NO 3/2012

SUPREME COURT CIVIL APPEAL NO 4/2012

Between

Ableton Lawes

Appellant

and

The Attorney General of Jamaica

Respondent

Between

Uton Fairweather

Appellant

and

The Attorney General of Jamaica

Respondent

Miss Fara Brown for the appellants

Harrington McDermott instructed by the Director of State Proceedings for the respondent

JUDICIAL REVIEW - Maintenance Order - Failure to make payments - Committal Order - Maintenance Act, s. 21

Dukharan JA

1 The appellant in each of these appeals seeks to challenge the decision of the Full Court below to dismiss his application for judicial review of the decision of Her Honour Mrs Feare-Gregory to have him committed to prison for failure to make payments due under a maintenance order.

2 The matters, although unrelated, are similar in terms of their facts and raise the issue as to what is the procedure to be utilised in ascertaining whether a person's failure to make maintenance payments under a maintenance order is as a result of ‘wilful refusal or culpable neglect’, which would thereby attract the consequence of committal to prison under section 21 of the Maintenance Act.

3 The appellant in SCCA No 3/2012, Uton Fairweather, is father to three children in respect of whom a maintenance order was made in 1993; these sums were to be paid over to a collecting officer of the court. The order was that Mr Fairweather should pay $350.00 per week for each child until each attained the age of 18. In 2005, warrants of distress were issued, and although disputed by Mr Fairweather, the record indicates that there were insufficient goods to levy on. As a consequence, he was brought before the court on warrants of arrest in August 2005. At that time, Mr Fairweather was in arrears of over $500,000.00, and he made payments of $8,000.00, $4,000.00 and $4,000.00 in respect of the three children. Thereafter Mr Fairweather absconded and was not located until October 2008, when he was brought to court on a warrant. The matter first came before the learned magistrate in November 2008, and at that time, Mr Fairweather was still in arrears. In January 2009 the magistrate discounted the sum owing of over $500,000.00 by $200,000.00, the learned magistrate having taken into account information from two of the children that Mr Fairweather had paid sums over to them directly. This decision was appealed but was later withdrawn. The matter came up before the court several times subsequently until February 2010 when he paid $3,000.00 and $2,000.00 on 19 and 22 February. On 1 March 2010, Mr Fairweather again appeared before the court and paid $2,000.00. The magistrate indicated that he should return on 5 March, but he indicated that he preferred to return on 8 March. The magistrate then ordered him to pay $299,350.00 or serve eight days in jail and having failed to pay the sums he was taken into custody until 8 March.

4 The appellant in SCCA No 4/2012, Ableton Lawes, appeared in the Family Court in 2006 and was ordered to pay $3,500.00 per week plus half education and medical expenses towards the maintenance of a child he had fathered with Dianne Wilson. This appears also to have been a collecting officer's order. Although Mr Lawes, like Mr Fairweather disputed that a warrant of distress was issued, the evidence indicated that one was issued in October 2008 for the sum of $434,000.00, but there were insufficient goods on which to levy. As a result in 2009, Mr Lawes was arrested on a warrant and brought before the court in May. On 1 June 2009, he paid $92,000.00 and was offered bail in his own surety to return on 27 August 2009. Mr Lawes, however, did not appear before the court again until 8 March 2010 when he was brought on a ‘warrant on a warrant’, he having absconded. On that date, the magistrate ordered him to pay $322,000.00 or serve 10 days in custody. He having failed to pay the sums, he was taken into custody until 17 March 2010 when he was offered bail.

5 Both Mr Fairweather and Mr Lawes filed their claims for judicial review, on 1 October 2010 and 21 January 2011 respectively, against the orders for their committal made on 1 March and 8 March 2010 respectively. The reliefs sought in their claims were identical:

1

a writ of certorari to issue to quash the committal by the Resident Magistrate; 2. a declaration that the Resident Magistrate in committing them had acted unfairly, unlawfully and thereby acted ultra vires; 3. a declaration that the committal of them was in breach of their constitutional rights; 4. damages and exemplary damages for unlawful deprivation of liberty in breach of their constitutional rights; and 5. any other relief ‘as may be just’.

6 The Full Court after examining authorities referred to by counsel on both sides, stated that it ought to disturb the order of the Resident Magistrate only ‘if there is a really substantial error leading to a manifest injustice’. The court then went on to consider the arguments of both parties and made the following findings:

• (i) If the Maintenance Act requires a hearing and the magistrate deprived Mr Fairweather and Mr Lawes of such, then any incarceration would be a breach of natural justice. Additionally, it is clear that an individual ought not to be deprived of his liberty without the opportunity to be heard.

• (ii) There is no wording in the section or in any other place in the Act that indicates that there ought to be a formal hearing. The Act requires that the magistrate consider all the relevant factors to ascertain that there was in fact wilful refusal or culpable neglect. The Act required her to advert her mind to the facts known to her and consider whether there was wilful refusal or culpable neglect.

• (iii) The facts set out indicated that the magistrate had material by which she could come to the conclusion that there was wilful refusal or culpable neglect. The detailed nature of the affidavits filed by the magistrate in both matters indicated that the relevant facts were considered by her.

• (iv) Contrary to the magistrate's assertion contained in her affidavit, there was no duty on counsel to request a hearing. However, it was clear that the magistrate had extensive interactions with Mr Fairweather and Mr Lawes, personally and through their counsel, and that she used the information gleaned from those interactions to come to her conclusion.

7 The Full Court also indicated that though it was ‘clear in totality that the judge acted within her powers’, it was of the view that it would be appropriate to suggest some guidelines in relation to [the] procedure to be employed by judges when committing individuals. These guidelines include a magistrate: informing an individual who is likely to be committed, of the factors leading to the decision to commit, before the committal order is made; setting out in clear and concise language what order he intends to make; and giving the individual an opportunity to respond before the committal order is made.

8 Both Mr Fairweather and Mr Lawes filed eight grounds of appeal challenging the decision of the Full Court. They read:

• ‘1. The learned Judges erred in finding that the learned Resident Magistrate did not act in excess of her jurisdiction.

• 2. The learned Judges erred in finding that there is no duty on the part of a learned Resident Magistrate to inquire of the person who is to be committed before being satisfied of the fact that the person's conduct amounts to a wilful refusal or culpable neglect.

• 3. The learned Judges erred in not applying the principle of natural justice to the Appellant's case: in particular that the Appellant should have been given the opportunity to be heard before being committed.

• 4. The learned Judges erred in failing to consider whether the actions of the learned Resident Magistrate amounted to a breach of the Appellant's constitutional right to liberty.

• 5. The learned Judges erred by not finding that it was necessary in the Appellant's case for the learned Resident Magistrate to inform the Appellant who is likely to be committed of the factors that have led the Judge to that conclusion; and further that the learned Resident Magistrate should have set out in clear and concise language what order she intended to make. In the absence of so doing the learned Judges should have made a declaration accordingly.

• 6. The learned Judges erred in finding that a declaration should not be made in this case.

• 7. The learned Judges erred in finding that a declaration should not be made in this case. [sic]

• 8. The learned Judges erred in finding that damages should not be granted to the Appellant.’

9 Before recounting the submissions of the parties, it is necessary to set out the provisions of section 21(1) of the Maintenance Act, because, as the Full Court observed, and with which I agree, the resolution of this matter is dependent on the interpretation to be given to these provisions. The section provides:

‘ 21.-(1) A person shall not be committed to an adult correctional institution for default in payment under a maintenance order unless the Court is satisfied that the default is due to the wilful refusal or culpable neglect of that person.’

10 Miss Brown submitted that both in terms of grounding the context and the remedies sought, judicial review was the most appropriate course for Mr Fairweather and Mr Lawes to have taken. She submitted that the appeal raised three important questions:

• (i) What does it mean to be satisfied and was that condition met in the circumstances?

• (ii) What is the effect of committing a person without complying with the requirement to be satisfied?

• (iii) If there has been a failure to adhere to...