Attorney General v National Transport Co-operative Society

• Jurisdiction: Jamaica
• Judge: Morrison JA,Phillips JA,McIntosh JA
• Judgment Date: 30 November 2012
• Neutral Citation: JM 2012 CA 104
• Court: Court of Appeal (Jamaica)
• Date: 30 November 2012
• Docket Number: SUPREME COURT CIVIL APPEAL NO 117/2004 MOTION NO 3/2012

[2012] JMCA App 30

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

The Hon Mrs Justice Mcintosh JA

SUPREME COURT CIVIL APPEAL NO 117/2004

MOTION NO 3/2012

Between

The Attorney General

Applicant

and

National Transport Co-operative Society

Respondent

Douglas Leys QC, Mrs Michelle Champagnie and Miss Haydee Gordon instructed by the Director of State Proceedings for the applicant

Lord Anthony Gifford QC and Patrick Bailey instructed by Bailey Terrelonge Allen for the respondent

CIVIL PROCEDURE - Security for costs - Conditional leave to appeal to Her Majesty in Council - Order for payment of security for due prosecution of the appeal - Order for dispatch of record of appeal - Challenge to arbitration award - Whether motion filed out of time can be extended by the court - Constitution of Jamaica, s. 110(a)

Morrison JA

1 I have had the advantage of reading the judgment of McIntosh JA in draft. I agree with it and there is nothing that I can possibly add.

Phillips JA

2 I have had the opportunity of reading the draft reasons for judgment of my learned sister and am in agreement with same. I have nothing further I wish to add.

McIntosh JA

3 On 29 March 2012 the applicant filed a notice of motion seeking conditional leave to appeal to Her Majesty in Council from the decision of this court in respect of an appeal remitted to it by the Privy Council on 26 November 2009. Two conditions were requested in the motion relating to the time for payment of security for the due prosecution of the appeal and for the preparation and dispatch of the record to England, for the hearing of the appeal. The applicant also sought an order that costs of and incidental to its application be costs in the appeal to Her Majesty in Council.

4 The court heard arguments from Mr Douglas Leys QC for the applicant and Lord Anthony Gifford QC for the respondent, on 1 June 2012 and made the following order on 11 June 2012 with a promise that written reasons would be provided:

• ‘1. Leave is granted to the applicant to appeal to Her Majesty in Council from the decisions of this Honourable Court given on 20 December 2010, 30 September 2011 and 9 March 2012, in respect of the case remitted to it by the Judicial Committee of the Privy Council on 26 November 2009, ON CONDITION THAT:

  • i. The applicant shall within ninety (90) days from the date of this Order enter into good and sufficient security in the sum of $1,000.00 for the due prosecution of its appeal and the payment of all such costs as may become payable by the applicant in the event of his not obtaining an order granting final leave to appeal, or the appeal being dismissed for non-prosecution, or of the Judicial Committee ordering the Applicant to pay the costs of the appeal (as the case may be);

  • ii. the applicant shall within ninety (90) days of the date of this order or such later period as may be ordered by the court, take the necessary steps for the purposes of procuring the preparation of the record and the dispatch thereof to England.

• 2. The costs of and incidental to the application shall be costs in the appeal to Her Majesty in Council.’

Below are my reasons for agreeing that conditional leave should be granted to the applicant to appeal to Her Majesty in Council.

5 The background to the motion is adequately reflected in the supporting affidavit of Haydee Gordon and may be summarized thus:

• i) A contractual dispute between the parties involving certain franchise agreements was taken to arbitration and on 2 October 2003 damages with interest and costs were awarded to the respondent.

• ii) The applicant successfully challenged the arbitration award in the Supreme Court and that decision was upheld on appeal by the respondent to the Court of Appeal.

• iii) The respondent then appealed to the Judicial Committee of the Privy Council (the Committee) where on 2 November 2009, its appeal was allowed and the case was remitted to the Court of Appeal for: (a) the court's consideration of the consequences of the Committee's finding that the duration of the franchise agreements was three and not 10 years as well as issues relating to quantum of damages (particularly the relevance of the duty to mitigate) and (b) the court's decision on all issues of costs in the Court of Appeal, the Supreme Court and the arbitration.

6 The court discharged its mandate from the Committee in three stages, delivering its first decision on 20 December 2010 on the scope of the referral and the admissibility of evidence (the December decision). The second decision dealt with issues concerning quantum of damages, mitigation and interest and was handed down on 30 September 2011 (the September decision) and the third decision followed on 9 March 2012, wherein the court determined the issue of costs (the March decision).

7 In paragraph 11 of Miss Gordon's affidavit she indicated that the applicant challenges several aspects of the court's decisions, listing nine of them, including the court's interpretation of the scope of the Committee's referral on the quantum of damages and the court's failure to properly address the Committee's finding, confirming the conclusion of Brooks J (as he then was) that the franchise agreements were not in compliance with the Public Passenger Transport (Kingston Metropolitan Transport Region) Act, making them illegal and ineffective. According to Miss Gordon the applicant also intends to argue that the respondent had failed to discharge its burden of proof relating to quantum of damages. Additionally, she averred that the requirements for the grant of leave have been satisfied, in that the value of the matter is in excess of $1000.00 and the decisions of this court together constitute a final determination of the issues remitted to it by the Committee.

8 It is the applicant's contention that its notice of motion for leave, filed on 29 March 2012, was in full compliance with the requirement of section 3 of the Jamaica (Procedure in Appeals to Privy Council) Order in Council 1962 (the Rules), which reads as follows:

‘3. Applications to the Court for leave to appeal shall be made by motion or petition within twenty-one days of the date of the judgment to be appealed from, and the applicant shall give all other parties concerned notice of his intended application.’

Since the court completed its mandate from the Committee on 9 March 2012, the applicants contended, the notice was filed well within the stipulated period and leave should therefore be granted to it as prayed.

9 However, it was the respondent's submission that that contention was erroneous and Lord Gifford vigorously opposed the application. His submission was that the motion was hopelessly out of time as it was not filed ‘within 21 days of the date of the judgment to be appealed from’, which would have been either the December judgment or the September judgment. Further, learned Queen's Counsel submitted, the authorities make it clear that there is no power under the rules or otherwise to extend that 21 day period, and the cases of R v Lancy Simpson (1977) 15 JLR 190 and Chas E Ramson Ltd and Another v Harbour Cold Stores Ltd SCCA 57/1978, delivered on 27 April 1982 were cited to bolster this submission. Lord Gifford also referred to the case of Jamaica Steel Works v Vasconcellos [2010] JMCA Civ 15 in which the court held that the position remains unchanged with the adoption of the new Privy Council rules.

Undisputed matters

10 There was no...