Audrey Bernard-Kilbourne v Board of Management of Maldon Primary School

• Jurisdiction: Jamaica
• Judge: D. Fraser J
• Judgment Date: 17 August 2015
• Neutral Citation: [2015] JMSC Civ 170
• Docket Number: CLAIM NO. 2014HCV04307
• Court: Supreme Court (Jamaica)
• Date: 17 August 2015

[2015] JMSC Civ 170

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

D. Fraser J

CLAIM NO. 2014HCV04307

Bewteen

Audrey Bernard-Kilbourne

Claimant

and

The Board of Management of Maldon Primary School

Defendant

Mr. André Earle and Mrs. Nikeisha Young Shand instructed by Earle & Wilson for the Claimant

Ms. Carole Barnaby instructed by the Director of State Proceedings for the Defendant

Part 56 of the Civil Procedure Rules — Whether or not application for declaration against public body without application for judicial review an abuse of process — Circumstances in which Reg. 54(2) of the Education Regulations 1980 apply — Effect of fit and proper requirements on membership of school Board — Meaning of ‘presence’ under the Education Regulations 1980 — Effect of an invalid vote on decisions taken by Board — Meaning of ‘regular assessments’ under the Education Regulations 1980 — Factors to be taken into account in exercise of discretion to grant or not to grant declarations

THE BACKGROUND TO THE CLAIM

1 The claimant, Audrey Bernard-Kilbourne was appointed provisional principal of Maldon Primary School initially for one year commencing January 1, 2013 to December 31, 2013. This was by letter dated August 27, 2012 from the defendant Board then chaired by Mrs. Dorette Weir-Robinson. All the relevant subsequent decisions and actions of the defendant, were taken under the chairmanship of Mr. Samuel Johnson, who assumed the chairmanship of the defendant effective January 1, 2013.

2 By letters to the Permanent Secretary of the Ministry of Education (Region 4) dated January 22, 2014 and March 25, 2014, the defendant recommended that the claimant's provisional appointment as principal of Maldon Primary School be extended until June 30, 2014. Her appointment was subsequently extended to July 30, 2014 by letter dated June 30, 2014.

3 By letter dated July 30, 2014, the defendant advised the Ministry of Education that it was not recommending the claimant's appointment to the post of Principal of the Maldon Primary School. The defendant also indicated that it was extending the claimant's appointment as provisional principal to September 30, 2014 and that a further extension of such appointment would not be granted. The reasons for not recommending the appointment of the claimant were stated as:

• i. Failure to follow the Board's instructions in most cases

• ii. Lack of interpersonal skills

• iii. Inadequate team building skills

• iv. Failure to establish a proper working relationship with the majority of her staff.

4 The claimant was only assessed twice by the Ministry of Education during her tenure as provisional principal of the Maldon Primary School.

THE CLAIM

5 On September 12, 2014 counsel for the claimant filed a Fixed Date Claim Form (FDCF) and Without Notice Application for Injunction. On that day the claimant obtained an ex parte injunction restraining the defendant for a period of 28 days or until further order of the court, from taking any steps to affect the claimant's position as provisional principal or filling the position of principal of the Maldon Primary School.

6 On October 9, 2014 counsel for the claimant filed an amended FDCF seeking the following reliefs:

• i. A declaration that the defendant's decision to terminate the claimant's position as Provisional Principal is not lawful as it failed to follow the procedure set out under regulations 56–59 of the Education Regulations, 1980.

• ii. A declaration that the defendant's purported decision not to recommend the claimant's appointment as Principal is not valid.

• iii. A declaration that regular assessments were not made of the claimant's performance as Provisional Principal by the Ministry of Education.

• iv. A declaration that without the said assessments, the defendant is not in a position to make a decision as to whether or not to recommend that the provisional appointment of the Claimant be made permanent.

• v. An injunction pending the determination of the claim herein

• vi. Costs

• vii. Such further or other relief as this Honourable Court sees fit.

7 The matter was heard over a number of dates. The injunction was extended on more than one occasion pending the outcome of the Full Hearing. The First Hearing of the FDCF which commenced on January 28, 2015 and continued on March 17, 2015, was converted into the Full Hearing on April 24, 2015.

THE ISSUES

8 The following are the issues arising for determination:

DISCUSSION AND ANALYSIS

Issue I — Is the fact that the claimant proceeded against the defendant Board other than by way of judicial review an abuse of the process of the court? Should the claimant have proceeded by way of judicial review and sought orders for mandamus or certiorari? If so, should the matter be converted to an application for judicial review pursuant to the Civil Procedure Rules (CPR) rule (r.) 56.7?

• i. Is the fact that the claimant proceeded against the defendant Board other than by way of judicial review, an abuse of the process of the court? Should the claimant have proceeded by way of judicial review and sought orders for mandamus or certiorari? If so, should the matter be converted to an application for judicial review pursuant to the Civil Procedure Rules (CPR) rule (r.) 56.7?

• ii. Was the decision of the defendant not to recommend the provisionally appointed claimant for permanent appointment as principal a termination pursuant to regulation 54 (2) of the Education Regulations 1980 requiring the procedure outlined in regulations 56–59 to be followed, failing which the decision would be unlawful?

• iii. Was Mr. Samuel Johnson precluded from being appointed as Chairman of the Board of Maldon Primary School on account that he was convicted of a criminal offence in the United States of America?

• iv. At the time the Board took the decision not to recommend the claimant for appointment as principal, was Ms. Donnetta McGhie who participated part time by telephone ‘present’ within the meaning of the Education Regulations and had she vacated her membership on the Board?

• v. If Ms. McGhie's vote is declared invalid, did it invalidate the remaining majority vote of the Board not to recommend the claimant for appointment as principal?

• vi. Were two assessments of the claimant by the Ministry of Education sufficient to be considered regular assessments within the meaning of the Education Regulations ? In the absence of a joinder of the Ministry or Minister of Education in the claim, can the claimant obtain a declaration that the Ministry had not arranged for the regular assessment of the claimant during her provisional appointment as principal?

• vii. Did the Board as required receive and take into account a report of such assessments of the claimant's performance as provisional principal as undertaken by the Ministry of Education through its Education Officer in deciding not to recommend the claimant for appointment as principal?

• viii. Should the court refuse to exercise its discretion to grant the declarations sought by the claimant on the bases:

  • a) Of acquiescence to a decision being taken by the Board on July 29, 2014 on two assessments; and

  • b) That the declarations would serve no useful purpose?

9 Part 56 of the CPR that governs the current proceedings deals with Administrative Law not just judicial review. Rule 56.1 (1) and (2) in outlining the scope of the part and how applications are to be referred to provide as follows:

• (1) This part deals with applications:—

  • (a) for judicial review;

  • (b) by way of originating motion or otherwise for relief under the Constitution;

  • (c) for a declaration, or an interim declaration in which a party is the State, a court, a tribunal or any other public body; and

  • (d) where the court has power by virtue of any enactment to quash any order, scheme, certificate or plan, any amendment or approval of any plan, any decision of a minister or government department or any action on the part of a minister or government department.

• (2) In this part such applications are referred to generally as ‘applications for an administrative order ’.

10 Notwithstanding CPR r. 56.1 (1) (c) counsel for the defendant submitted that, the well-established general rule that it is contrary to public policy and an abuse of the process of the court for a claimant complaining of infringements of her public law rights by a public authority to seek redress by action other than by judicial review, still applies. Counsel relied on the case of The Chairman, Penwood High School's Board of Management and the AG v Loana Carty [2013] JMCA Civ 30 which quoted with approval the well known English case of O'Reilly v Mackman [1983] 2 A.C. 237.

11 Counsel submitted that by proceeding other than by judicial review the claimant sought to deprive the defendant of the safeguards against abuse built into the judicial review process, which safeguards are not available in an action other than for judicial review. Counsel further argued that as the matters complained of by the claimant were squarely within the realm of public law and not collateral to any private law right to fall within the exception to the general rule, the claim as brought was an abuse of the process of the court.

12 Counsel for the claimant on the other hand submitted that the position advanced by counsel for the defendant was misconceived as it failed to take account of the current differences between the English Civil Procedure Rules and the Jamaican CPR. There is a lot of force in counsel's submission.

13 At the time of the decision of O'Reilly v Mackman Order 53 Rules of the Supreme Court was in force in England. It has now been replaced by Order 54. Paragraphs 1 and 2 of Order 53 provided as follows:

(1) An application for—

(a) an order of...