Dale Austin v Public Service Commission and Another

• Jurisdiction: Jamaica
• Judge: Morrison P,F Williams JA,EDWARDS JA (AG)
• Judgment Date: 07 October 2016
• Neutral Citation: JM 2016 CA 89
• Docket Number: SUPREME COURT CIVIL APPEAL NOS 106 & 117/2015
• Court: Court of Appeal (Jamaica)
• Date: 07 October 2016

[2016] JMCA Civ 46

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison P

The Hon Mr Justice F Williams JA

The Hon Miss Justice Edwards JA (AG)

SUPREME COURT CIVIL APPEAL NOS 106 & 117/2015

Between

Dale Austin

Appellant

and

The Public Service Commission

1 ^st Respondent

and

The Attorney General of Jamaica

2 ^nd Respondent

Dale Austin in person and Mikhail Williams instructed by Duane Thomas for the appellant

Garth McBean QC, Lorenzo Eccleston and Miss Dian Johnson instructed by Jacqueline Samuels-Brown QC for the respondents

Miss Marlene Roper watching proceedings on behalf of the Public Service Commission

Morrison P

1 I have read in draft the judgments of F Williams JA and Edwards JA (Ag). I agree with them and would also dismiss the appeals with no order as to costs.

F Williams JA

Background

2 These matters have come before the court as interlocutory appeals from the orders of two judges of the Supreme Court. In a nutshell, the overarching position of the appellant in these appeals is that the learned judges in the court below erred, in that they misunderstood the true principles of law and the relevant evidence before them and failed to exercise their discretion judicially.

3 By these appeals, the appellant has sought to challenge the judges' rulings on matters as diverse as an application to strike out a defence; the variation of an order awarding costs and an application as to whether two claims ought to have been separated or allowed to remain together.

4 For a full appreciation of the issues involved in these matters and to see the way to their resolution, it is best to begin the journey by traversing the route that the matters have taken since their commencement.

Start of proceedings in the court below

5 The appellant on 15 March 2012, filed a fixed date claim form (which was further amended and re-filed on 27 November 2014), seeking leave to apply for judicial review and constitutional relief. He is challenging the decision of the Public Service Commission (PSC) to remove him from public office, which decision was communicated in a letter dated 5 March 2012.

6 On 16 March 2012, he was granted leave to apply for judicial review and the court also ordered a stay of the implementation of the PSC's decision.

7 By affidavit filed and served on 17 January 2014, the appellant made a further claim for damages for defamation and breach of confidence arising from the publication of certain statements alleged by the appellant to be defamatory of him, contained in a report dated 16 February 2012. On 19 December 2014, the appellant filed and served on the respondents a further affidavit, particularizing the claims in defamation and breach of confidence.

8 However, the respondents failed to file a defence or affidavit in response to these two affidavits filed by the appellant and served on them.

9 On 8 April 2015, the appellant's fixed date claim form came up for hearing before the Full Court. On the application of the respondents, the court granted an adjournment and ordered, inter alia , that the appellant was to file further particulars of the damages claimed on or before 15 June 2015 and that the respondents were to file a defence on or before 6 July 2015.

10 On 15 June 2015, the appellant filed further particulars of his claim in accordance with the order of the Full Court. However, no affidavit in response or defence was filed by the respondents within the time ordered by the Full Court. On 8 September 2015, the appellant filed and served a notice of application (amended and re-filed on 22 September 2015 and further amended on 12 October 2015) seeking:

• (i) to have the issues in the claim dealt with summarily at the next court hearing;

• (ii) to limit the respondents' right to give evidence as a consequence of their failure to file a defence within time; and

• (iii) the entering of a default judgment in respect of the claim for defamation and breach of confidence, if that claim was separated from the claim for judicial review.

11 On 9 September 2015 (the day after service of the above-mentioned original application), the respondents served on the appellant a notice of application, seeking an extension of time to file a defence to 21 days from the date of the hearing of that application. (That application bore the filing date of 28 July 2015.)

12 The respondents' application for extension of time was supported by the affidavit of Lorenzo Eccleston, an attorney-at-law for the respondents, filed on 27 July 2015. No defence was exhibited to that affidavit.

13 In response to the affidavit of Lorenzo Eccleston, the appellant filed and served an affidavit on 11 September 2015.

14 After several adjournments of both applications, the respondents, on 21 September 2015, filed a defence. The appellant thereafter amended his notice of application, to request that the defence and affidavit in response filed by the respondents on 21 September 2015 and 19 December 2014, respectively, be struck out.

15 On 7 October 2015, the respondents served on the appellant a notice of application requesting that the appellant's claim for judicial review be tried separately from the claim for defamation.

The court's rulings on the applications below

Applications before G Fraser J (Ag)

16 On 13, 21 and 22 October 2015, these applications were heard together by G Fraser J (Ag) (as she then was) and submissions made on behalf of the parties. The decision in the matter was delivered on 23 October 2015, with the following results:

A. Respondent's notice of application dated 9 September 2015 for extension of time

17 With regard to the respondent's notice of application for extension of time to file defence, the learned judge, inter alia , granted 10 days from the date of that order (23 October 2015) for the respondents to file their defence and granted costs of the application to the appellant to be paid within 30 days, failing which the respondents' statement of case would stand struck out. (The amendment or variation of this order in relation to costs by Lindo J later gave rise to an issue on appeal.)

B. Respondents' notice of application dated 7 October 2015 for separation of claims

18 The court ordered that the claim for judicial review was to be tried separately from the private-law claim for defamation and that the costs of that application were to be costs in the claim.

C. Appellant's notice of application dated 12 October 2015 for claim to be dealt with summarily

19 The learned judge refused the application for: (i) the issues in the two claims to be disposed of summarily; (ii) the respondents' evidence to be limited and (iii) for default judgment to be entered in respect of the claim for defamation and breach of confidence in the event the court ruled (which, as it turns out, it did) that those claims were to have been separated. She also refused the appellant's application for leave to appeal.

Application before Lindo J

D. Respondents' amended notice of application dated 20 November 2015 for variation of costs order

20 Subsequent to the making of the orders by G Fraser J, the respondents sought to vary the order for the payment of costs that had previously been made on the respondents' application for an extension of time to file the defence. On 25 November 2015, Lindo J ordered that costs were to be payable within 60 days of the registrar issuing a costs certificate in a sum to be agreed or taxed; the time for filing the notice of application was abridged and costs of the application were to be costs in the claim. The learned judge refused the appellant's application for leave to appeal that decision.

The appeal

21 The appellant applied for permission to appeal the orders of both G Fraser J and Lindo J. On 4 December 2015, this court heard and granted the appellant's application for permission to appeal and ordered that both appeals be consolidated.

Notice and grounds of appeal

22 The grounds of appeal set out in the notice and grounds of appeal filed on 28 October 2015 are as follows:

‘Ground 1

The learned Judge erred in fact and in law in determining that the time limited for the Respondents to file their Defence/Affidavit in Response did not expire on January 31, 2015 but rather on July 6, 2015.

Ground 2

The learned Judge erred in fact and in law in finding that the Respondents were out of time by only twenty-three (23) days on the basis that their lapse in filing the statement of defence began from July 6, 2015 when the Respondents failed to file a Defence and ended on July 28, 2015 when the Respondents filed an application for extension of time.

Ground 3

The learned Judge erred in fact and in law in concluding that the Respondents had provided “evidence” to the Court of their proposed/draft Defence.

Ground 4

The learned Judge erroneously and injudicially exercised her discretion to grant the Respondents an extension of time (to file a Defence) by failing to consider or to sufficiently consider the merits of the Defence to determine its arguability/real prospects of its success in respect of each of the claims advanced.

Ground 5

The learned Judge erroneously and injudicially exercised her discretion to grant the Respondents an extension of time (to file a Defence) by failing to correctly determine the length of the delay and in so doing erroneously overlooked the other elements of prejudice that were unique and germane in the instant circumstances.

Ground 6

The learned Judge erred in law by failing to give effect to the Claimant Mr. Austin's fundamental constitutional right as provided by section 16(2) of the Charter of Fundamental Rights and Freedoms of the Constitution of Jamaica in not considering or not sufficiently considering the questions of whether the statement of defence ought to be struck...