Arlene Elmarie Peterkin v Natural Resources Conservation Authority
| Jurisdiction | Jamaica |
| Judge | Pettigrew Collins J |
| Judgment Date | 01 February 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2018 HCV 03058 |
[2022] JMSC Civ 13
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
CLAIM NO. 2018 HCV 03058
and
and
Mr Robert Collie instructed by Collie Law for the Claimant/Respondent.
Miss Faith Hall instructed by the Director of State Proceedings for the first and second Defendants.
Lord Anthony Gifford, Mrs Ingrid Clarke Bennett and Miss Renae Robinson instructed by Pollard Lee Clarke for the Applicant/third Defendant
Application to strike out inadmissible affidavit evidence — Rule against hearsay — Rule 30.3 of the Civil Procedure Rules
The claimant filed a Fixed Date Claim Form (FDCF) on the 27 th of September 2019, seeking certain declarations and administrative orders. One declaration in effect is asking the court to say that the Natural Resources Conservation Authority (NRCA) acted illegally or irrationally in not requiring the National Housing Trust (NHT) to submit with their application for permission for construction, an Environmental Impact Assessment (EIA). Another seeks to have the court make a similar pronouncement with regard to the alleged relaxing of standards for discharging sewage effluent contrary to certain NRCA Regulations. The orders sought are for certiorari regarding the grant of environmental permit for subdivision of lands, prohibition in relation to certain environmental permits and constitutional redress by way of damages and injunction.
The claim was filed pursuant to leave to apply for judicial review which was granted on the 16 th of September 2019.
In her FDCF, the claimant contends that she is the owner of property situate at Industry Cove in the parish of Hanover and that her property is impacted by the decision of the first and second defendants in approving environmental licences to permit the construction and operation of a sewage treatment plant which would allow for the discharge of sewage onto the beach. This sewage plant is to be constructed by the third defendant in order to serve a housing development in close proximity to the claimant's property.
The claimant does not dispute that the affidavits of Messrs Peter Wilson Kelly and Emmor Scarlett were filed in support of the Notice of Application for Leave to Apply for Judicial Review and that there are no affidavits of these individuals filed in support of the FDCF for judicial review. In fact, in her own affidavit in support of the FDCF, the claimant states that she relies on those affidavits which were filed prior to the filing of the FDCF.
The application before me is that of the third defendant, the National Housing Trust to strike out certain paragraphs of the claimant's affidavit filed in support of her FDCF. This application was filed on the 19 th of May 2021.
The applicant relies on the provisions of rules 26.3(1)(b), 30.3 (1) and 30.3(3) of the Civil Procedure Rules (CPR). The applicant asserts that each paragraph or a part thereof, referred to in the application, recites an alleged fact or opinion which the claimant does not assert to know from her personal knowledge but to have been informed about by third parties. Counsel contends that it is an abuse of the process of the court for the claimant to include these paragraphs, contrary to the rules of court and that the offending paragraphs are therefore subject to striking out based on the provisions of rule 26.3(1)(b).
provides that
In addition to any other powers under these Rules, the court may strike out a statement of case or part of a statement of case if it appears to the court –
(a) …
(b) that the statement of case or the part to be struck out is an abuse of the process of the court or is likely to obstruct the just disposal of the proceedings;
On the matter of admissibility of evidence, in the 9th edition of the text, Murphy on Evidence by Peter Murphy, it is stated at page 25 that:
“Evidence is said to be admissible or receivable if it is relevant and if it is not excluded by the rules of evidence. The rules of evidence are rules of law, and it follows that, unlike relevance, which is determined solely by reference to logical relationship between the evidence and a fact in issue, admissibility is a matter of law. To be admissible, evidence must be relevant, but relevance is not enough to result in admissibility. While evidence must be relevant to be admissible, the converse proposition is not true. Not all relevant evidence is admissible.”
It is hardly open to dispute that the claimant is seeking to rely on the impugned aspects of her affidavit as proof of the truth of the contents. The well known and often cited rule in the case of Subramaniam v Public Prosecutor [1956] 1 WLR] 965 at 969 is that:
“ evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when what is proposed to establish by evidence is not the truth of the statement but the fact that it was made.”
In Caren Cranston v Tamazine Samuels and Gairy Toorie [2018] JMSC Civ 73 at paragraph 69 of her judgment, Nembhard J defined hearsay thus:
“ According to the rule against hearsay, an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted. This formulation conflates two (2) common law rules, the rule that the previous assertions of the witness who is testifying are inadmissible as evidence of the facts stated (sometimes spoken of as the ‘rule against narrative’, or the rule against ‘self-corroboration’), and the rule that assertions by persons other than the witness who is testifying are inadmissible as evidence of the facts asserted (the rule against hearsay in the strict sense).”
It is noted that the decision of the Learned judge was overturned on appeal but that fact has no bearing on the definition.
It is also equally clear that the matters that the claimant asserts in most of the paragraphs are not matters within the claimant's personal knowledge, as she has in fact identified the source of the information.
Lord Anthony Gifford directed the court's attention to rule 30.3 of the Civil Procedure Rules which addresses what an affidavit may contain.
Rule 30.3 (1) and (2) provide that:
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(1) The general rule is that an affidavit may contain only such facts as the deponent is able to prove from his or her own knowledge.
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(2) However, an affidavit may contain statements of information and belief
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(a) where any of these Rules so allows;
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(b) where the affidavit is for use in an application for summary judgment under Part 15 or any procedural or interlocutory application, provided that the affidavit indicates:
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(i) which of the statements in it are made from the deponent's own knowledge and which are matters of information or belief; and
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(ii) the source for any matters of information and belief.
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(3) The court may order that any scandalous, irrelevant or otherwise oppressive matter be struck out of any affidavit
There are stipulations as to what else must be indicated in affidavits filed in support of interlocutory proceedings. The exceptions are not applicable in the instant case as the claimant's affidavit in question was not filed in interlocutory proceedings. It may be stated at this point, that since her affidavit was not prepared for use in interlocutory proceedings, the fact that the claimant states the source of the information contained in her affidavit does not make the inclusion of the information permissible.
In his submissions Mr Collie contends that the claimant is able to give evidence on the technical observations made by Mr Kelly provided Mr Kelly is a witness in the matter. It is also his contention that Mr Knight has provided evidence in the matter as a witness for NRCA and that he may attest to the truthfulness or otherwise of the email exchange between himself and Professor Cooper. As it relates to the claimant's expression as to the impact on the community in paragraphs 45 and 46, Mr Collie takes the view that the claimant is permitted to give this evidence as an advocate on behalf of the community. He also submitted that as someone who has lived in Jamaica, the claimant can give evidence as to the failure of sewage treatment systems in Jamaica.
Most of the paragraphs are said to offend the rule against hearsay in so far as they regurgitate matters that are said to be...
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