City of Kingston Co-operative Credit Union Ltd v Registrar of Co-operative and Friendly Societies and Yvette Reid

• Jurisdiction: Jamaica
• Judge: Mangatal J.:
• Judgment Date: 08 November 2011
• Judgment citation (vLex): [2011] 11 JJC 0801
• Docket Number: APPLICATION NO. 2011 HCV 00047
• Court: Supreme Court (Jamaica)
• Date: 08 November 2011

RULING

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

APPLICATION NO. 2011 HCV 00047

IN THE MATTER of a dispute between Yvette Reid & Mavis Henry and the City of Kingston Co-Operative Credit Union

AND

IN THE MATTER of the Co-Operative Societies Act

BETWEEN

CITY OF KINGSTON CO-OPERATIVE CREDIT UNION LIMITED

APPLICANT

AND

REGISTRAR OF CO-OPERATIVE AND FRIENDLY SOCIETIES

1 ^ST RESPONDENT

AND

YVETTE REID

2 ^ND RESPONDENT

Mr. Kirk Anderson, Mr. William Panton, Mr. Emile Leiba, Ms. TerriAnn Lawson and Ms. Gillian Pottinger instructed by Dunn Cox for the Applicant.

Mr. Curtis Cochrane instructed by the Director of State Proceedings for the 1 ^st Respondent.

Mrs. Marvalyn Taylor-Wright instructed by Taylor Wright & Co. for the 2 ^nd Respondent.

APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW OF AWARD OF REGISTRAR GRANTED IN 2010 CLAIM-ORDER GRANTING LEAVE SET ASIDE IN 2010 CLAIM – APPLICATION FOR EXTENSION OF TIME AND ANOTHER APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW NOW MADE- APPLICATION TO STRIKE OUT PRESENT APPLICATION-PART 56 OF THE CPR-RULES 56.3, 56.4, 56.5-and 56.6 - WHETHER PRESENT APPLICATION AN APPLICATION ‘ONCE MORE’ OR WHETHER A RENEWAL-WHETHER ORDER AND APPLICATION FOR LEAVE IN 2010 CLAIM WERE NULL AND VOID-WHETHER PRESENT APPLICATION AMOUNTS TO COLLATERAL ATTACK ON JUDGMENT OF COURT IN 2010 CLAIM-WHETHER APPLICATION AN ABUSE OF PROCESS

Mangatal J

THE PARTIES

1 The applicant City of Kingston Co-Operative Credit Union Limited ‘COK’ is a body corporate duly registered under the laws of Jamaica and is a co-operative society registered under The Co-Operative Societies Act.

2 The First Respondent is the Registrar of Co-operative Societies for Jamaica ‘the Registrar’. The post of Registrar was established under the Co-Operative Societies Act and amongst other matters, the Registrar has responsibility for settling disputes touching the business of a registered society between a member and the society.

3 The First Respondent Yvette Reid ‘Mrs. Reid’ was at the material time a member of the COK.

4 This matter concerns an award made by the Registrar in respect of a dispute between COK and Mrs. Reid which has quite a long and involved history.

THE APPLICATIONS

5 Two applications came on for hearing before me. The application which was filed first in time was that of COK, which was an amended Notice of Application for Court orders, in its amended form, filed January 20 2011. The original application was filed January 5 2011. The application before me ‘COK's application’ seeks the following relief:

• 1. That an extension of time until the date of the filing of this application, be granted for the making of an application by COK for leave to apply for judicial review; and

• 2. The leave of this Honourable Court be granted to COK to apply for an order of certiorari to quash the Registrar's award as dated January 21 ^st , 2010.

6 Extensive grounds are set out for making COK's application. On the 21 ^st January 2011 the amended application had come on for hearing ex parte before my brother Daye J. On that occasion Daye J. granted one of the reliefs sought by COK, which was that there be a stay of the Registrar's award pending the final determination of the Judicial Review proceedings to be pursued herein. It was also ordered that COK's applications set out above be adjourned to the 27 ^th June and that the Respondents be served with notice of the application.

7 On June 15 2011 Mrs. Reid filed an application seeking to have COK's application struck out ‘the striking out application’. The grounds stated in the striking out application are as follows:

• (a) The (COK's) application is made contrary to the legal principles of res judicata and issue estoppel.

• (b) The application is otherwise an abuse of the process of the court.

• (c) The applicant has failed to comply with Rules 56.5 and 26.3(2) of the Civil Procedure Rules 2002.

• (d) The hearing of the application will be contrary to the overriding objective of dealing with cases justly and allocating to each case a fair share of the court's resources.

8 Mr. Cochrane, instructed by the Director of State proceedings, on behalf of the Registrar, supported the striking out application filed on behalf of Mrs. Reid. I will deal with the striking out application first, although with the concurrence of the parties, I thought it the best use of the court's resources to hear both applications.

9 For ease of understanding, it is necessary to set out some of the background to the applications. The complete contested proceedings between the parties has a long history, but for present purposes I simply set out aspects of the chronology relevant to the applications.

The immediate background

10 [10] On the 17 ^th of May 2010 Daye J. in Claim No. 2010 HCV 0204‘The 2010 claim’ granted leave to COK to apply for judicial review of the Registrar's award of January 21 2010. COK filed its application seeking leave on April 26 2010. COK stated that they only received notice of the Registrar's decision on February 8, 2010. COK“s application for leave to apply for judicial review was granted at an ex parte hearing as Rule 56.3(2) of the Civil Procedure Rules 2002 ‘the CPR’ permits.

11 In September 2010, an application by Mrs. Reid in the 2010 claim came on for hearing before my brother Sykes J. seeking to have the ex parte grant of leave set aside. Under Rule 56.6(1) of the CPR the application for judicial review ‘must be made promptly and in any event within three months from the date when grounds for the application first arose’. Mrs. Taylor-Wright, who also appeared for Mrs. Reid in that application, successfully submitted that the date when grounds first arose for the application was the 21 ^st of January 2010, and not February 8 2010, the date when the decision of the Registrar became known to COK, as contended for on behalf of COK. Sykes J. granted the application to set aside leave on the basis that the application by COK was out of time, and there had been no application for an extension of time for seeking leave. As the grant of leave was made ex parte, Sykes J. set it aside because full disclosure had not been made by COK before Daye J. Sykes J. in his written ruling pointed out that it seemed to him that COK had made an honest mistake when it used February 8 2010 as the relevant date in deciding the date of the decision for the purposes of determining ‘the date when grounds for the application first arose’. However, this nevertheless amounted to COK not making full disclosure and this was a recognised ground for setting aside an ex parte order-paragraph 34. At paragraph 35 of his ruling ‘the judgment’, delivered October 8 2010, Sykes J. stated:

35. In this particular case, it does not appear that Daye J. was told that the applicant was actually out of time and needed to have applied for an extension of time within which to apply for judicial review. The application before Daye J. proceeded on the basis that the application was being made promptly, or, at any rate, within the three month period. Now that he matter has been fully explored in an inter partes hearing, it is plain that COK is indeed out of time and in the absence of a successful application for extension of time (and there must be an application for extension of time) the leave would not have been granted. The application for leave is therefore set aside.

12 However, Sykes J. also analyzed the matter as follows:

36. There is another matter that came to light after oral submissions were made. It was brought to the attention of the parties who appeared before me and I have received written submission on the matter from Mr. Emile Leiba and from Mrs. Taylor –Wright. The matter is this: leave was granted by Daye J. on May 17, 2010. Under Rule 56.4(12) which reads:

Leave is conditional on the applicant making a claim for judicial review within 14 days of receipt of the order granting leave.

37. In the case before me, the claim was filed on June 1, 2010. Mr. Leiba endeavoured to say that COK filed its claim within time. Regrettably, I cannot agree. A similar situation occurred in Golding v. Miller S.C.C.A. 3 of 2008 (delivered April 11, 2008). Leave was granted to apply for judicial review on December 13 2007. The claim was not filed. Instead the applicant for judicial review elected, on January 10, 2008, to apply for an extension of time to file the claim. The first instance judge granted the extension. This was reversed by the Court of Appeal. In coming to its decision the court was of the view that the claim should have been filed by December 27, 2007. The Court of Appeal is therefore saying that the expression “within 14 days” means not later than the fourteenth day beginning on the day following immediately the date the grant of leave was given. In other words, within fourteen days does not mean fourteen clear days (see Rule 3.2). If this is so, then it means that COK's claim form is out of time. To put it another way, the leave granted has now lapsed . The Court of Appeal also pointed out that the CPR prohibits an extension of time to file the claim form. If this is correct, then this application to set aside the grant of leave has become academic since the entire process has now come to an end for the reasons just stated .

Conclusion

38. The application to set aside the leave for judicial review is granted. If I am wrong on this, then on the authority of the Golding case, I declare that the omission of COK to file the claim form...