Christopher Stephenson v The Board of Management of Penwood High School
| Jurisdiction | Jamaica |
| Judge | C. Barnaby, J |
| Judgment Date | 28 May 2021 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. SU2020 CV 02395 |
[2021] JMSC Civ. 148
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. SU2020 CV 02395
Manley Nicholson and Donna Rufus instructed by NicholsonPhillips, Attorneys-at-Law for the Applicant.
Hugh Wildman instructed by Hugh Wildman & Co. for the 1 st Respondent.
Tamara Dickens and Louis Jean Hacker instructed by the Director of State Proceedings for the 2 nd Respondent.
Judicial Review — Application for Leave — Composite decision making process — Whether there are reasonable grounds for judicial review with a realistic prospect of success — Failure to challenge decision making process of appellate tribunal which is capable of curing defects in earlier process — Late stage amendment of application for leave.
On the 28 th December 2016 Mr. Christopher Stephenson's employment as a teacher at Penwood High School was terminated by the school's Board of Management (the “School Board”). This decision was upheld by the Teachers' Appeal Tribunal (the “Tribunal”) on the 10 th December 2019.
By way of Notice of Application for Court Orders (Application for Leave to Apply for Judicial Review) filed 3 rd July 2020, Mr. Stephenson sought leave to remove into this court the decision of the Tribunal so that an order of certiorari may issue to quash the same. On the 24 th July 2020 when the application came on for hearing before J. Pusey, J however, it was amended to enable Mr. Stephenson to pursue an application for leave in respect of “[t]he Respondents' decision made on 28 December 2016 to terminate the Applicant's employment…”. The evidence discloses that only one of the two Respondents made a decision on that date, the School Board. Outside of this prerogative relief, Mr. Stephenson also intends to pursue a declaration that the Respondents erred in the exercise of their discretion in terminating his employment.
After several adjournments, the amended application for leave to apply for judicial review came on for hearing before me on the 22 nd April 2021 and a decision thereon was delivered orally on the 28 th May 2021. The application was refused, so too Mr. Stephenson's belated attempt to further amend the application and his oral application for leave to appeal the latter decision. At the request of Counsel for Mr. Stephenson, I now reduce into writing the reasons for these decisions.
An application for leave to apply for judicial review must be made promptly, and in any event, within three (3) months from the date on which the grounds for the application arose for the first time: CPR 56.6(1). Where an order of certiorari is being sought to quash a judgment, order, conviction or proceedings, pursuant to CPR 56.6(3), the date on which the grounds for the application first arose is “… taken to be the date of that judgment, order, conviction or proceedings.”
The decision of the School Board which Mr. Stephenson is seeking to quash having been made on the 28 th December 2016, the date on which the grounds for leave would first have arisen was some three (3) years and six (6) months before the application for leave was in fact filed. I note however, that during the period Mr. Stephenson availed himself of the statutory facility available to him under the Education Act to appeal to the Tribunal, which process culminated with the Tribunal's decision on 10 th December 2019.
Judicial review is a remedy of last resort and the delay which arises from exhausting an alternative avenue for redress ought not to operate to the detriment of an applicant for leave. Consequently, the date on which the grounds for leave first arose is properly the date of the decision of the Tribunal. The application for leave having been made almost seven (7) months after that date, it was not promptly made.
Although the School Board submitted that Mr. Stephenson should not be entertained by the court on account that he had not sought an extension of the time within which to make his application, that contention was based on an error as to fact. Mr. Stephenson sought as one of his relief an extension of the time within which to make the application for leave. It is to this aspect of the application that I first and very briefly turn.
Where an application for leave to apply for judicial review has not been promptly made, the court is nevertheless permitted to extend the time within which to make the application if there is good reason for doing so: CPR 56.6(2).
In addition to seeking redress from the Tribunal which returned its decision on the 10 th December 2019, it is also Mr. Stephenson's evidence that he was advised of that decision in March 2021. Thereafter, he experienced difficulty in obtaining the assistance of Counsel, which difficulty was exacerbated by the global pandemic. Mr. Stephenson's evidence in these regards is accepted. I find that the delay was not inordinate and regard the difficulty in securing legal representation as a good reason for extending the time for making the application for leave to apply for judicial review.
Having determined that threshold issue, I now consider whether the amended application discloses any arguable ground for judicial review with a realistic prospect of success.
On consideration of Mr. Stephenson's application, I find that it does not disclose any ground for judicial review against the decision of the Tribunal and in consequence, there is no arguable ground for judicial review with a realistic prospect of success.
One of the seminal principles of judicial review is that leave will not be granted where the appellant has an alternative avenue for redress. This bar has among its premises the fact that alternative avenues for redress are capable of being curative of defects in earlier decision making processes. This is demonstrated in the Court of Appeal decision in James Ziadie v Jamaica Racing Commission (1981) 18 JLR 131.
In The Board of Management of Bethlehem Moravian College v Dr. Paul Thompson and the Teachers Appeals Tribunal [2015] JMCA Civ 41 (hereinafter called ex parte Paul Thompson) on which Mr. Stephenson relies, it was determined that all stages in a statutory decision making process may be amendable to judicial review and that an order of certiorari may lie where there are alleged breaches of the principles of natural justice. I will refer to proceedings of this nature as “composite judicial review proceedings”.
It is my judgment that consistent with principles which govern applications for leave to apply for judicial review, there must be some basis for challenging the decision making process which is sought to be impugned by the composite judicial review proceedings as envisioned by the Court of Appeal, especially where an applicant has exhausted his statutory avenue for redress, which avenue is capable of curing defects in the decision making process which precede it. It is the absence of any challenge to the decision of the Tribunal which I find to be the insurmountable deficit on Mr. Stephenson's amended application for leave to apply for judicial review.
Pursuant to section 37(4) of the Education Act, on an appeal against the decision of a school board, the Teachers' Appeal Tribunal may “…either confirm the decision appealed against or vary or quash that decision, and the Tribunal may from time to time return the proceedings to the person or authority concerned with the making of that decision for further information or for such other action as the Tribunal thinks just.” It was therefore entirely within the Tribunal's remit to confirm the...
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