Dale Austin v The Solicitor General

JurisdictionJamaica
JudgeSykes J
Judgment Date04 January 2018
Neutral Citation[2018] JMSC Civ 1
Docket NumberCLAIM NO. 2016HCV03531
CourtSupreme Court (Jamaica)
Date04 January 2018

[2018] JMSC Civ 1

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Sykes J

CLAIM NO. 2016HCV03531

Between
Dale Austin
Applicant
and
The Solicitor General
First Respondent
The Permanent Secretary of the Ministry of Justice
Second Respondent

Hugh Wildman instructed by Hugh Wildman and Co for the applicant

Patrick Foster QC and Camille Wignall Davis instructed by Nunes Scholefield DeLeon and Company for the respondents

JUDICIAL REVIEW — APPLICATION FOR LEAVE — WHETHER RECOMMENDATION REVIEWABLE — WHETHER SOLICITOR GENERAL PROPERLY APPOINTED

IN CHAMBERS
The context and the application
1

This application for judicial review filed was in 2016. It has taken over one year to be heard. This time lapse is contrary to all the rules of practice and the Civil Procedure Rules (‘CPR’) that speak to these applications. Rule 56.4 (1) (a) of the CPR states that an application for leave to ‘make a claim for judicial review must be considered forthwith by a judge of the Court’ (emphasis added). It would be helpful if the rules are observed.

2

Mr Dale Austin is an attorney at law assigned to the Attorney General's Chambers. He has had a long running dispute with Public Service Commission (‘PSC’) and the Attorney General (‘AG’). That dispute led to an application for judicial review in 2012 (‘the 2012 claim’). The court understands that that matter was only heard in March of 2017 and the judgment is still outstanding.

3

This second application arose out of the present Solicitor General's recommendation to the Permanent Secretary (‘the PS’) that Mr Austin be deployed elsewhere in the public service until his 2012 claim is fully resolved. The court need not specify the reasons for the recommendation. The evidence is that the PS had not made a decision one way or the other on this recommendation. Nonetheless, Mr Austin decided to seek judicial review. His application was refused on December 15, 2017 and these are the brief written reasons.

The applicable law
4

The court agreed with Mr Patrick Foster QC that this application was premature. The court also agreed that the test for judicial review, namely, that there is an arguable ground with a realistic prospect of success and not subject to any discretionary bar. The law on judicial review applications also goes on to say that it is not enough that the case is potentially arguable and secure leave on the basis that if leave is granted something may turn up during discovery which may strengthen the case. These principles are now so well embedded in Jamaican law that they can now be regarded as axiomatic. There is hardly any need to cite cases in support of this now well established test.

The appointment of the Solicitor General
5

Mr Austin had several arrows in his quiver. One was that the present Solicitor General was not properly appointed because the letter of appointment was in these words:

I am to inform you that the Governor-General, on the recommendation of the Public Service Commission, has approved the appointment of Mrs Nicole D Foster-Pusey, as the Solicitor General …

6

The compound verb ‘has approved’ was said to be an indication that the Governor General did not himself appoint but that that appointment was done by someone else and His Excellency simply approved it. This was said to be contrary to section 125 of the Constitution of Jamaica. Section 125 (1) reads in relevant parts:

Subject to the provisions of this Constitution, power to make appointments to public offices … is hereby vested in the Governor-General acting on the advice of the [PSC].

7

This is a matter of interpretation of the appointment letter and the Constitution which can be resolved without going to judicial review. The letter is compatible with section 125. The fact that it does not have the form of words that Mr Austin would like to see does not deprive it of legal effect. The letter means that the PSC has recommended and the Governor General agrees with the recommendation. This is the way that the appointment is expressed. Firmer terms may be more desirable but there is no doubt as to its meaning and effect. This means that one of the orders being sought on judicial review, namely, that the Solicitor General was not properly appointed to her office has no factual or legal foundation. The consequential declaration that would also have been sought on judicial view, specifically, that the Solicitor General's decision are null and void and of no effect cannot be granted because there is no factual or legal foundation for it.

8

Another declaration that would have been sought was that the Attorney General is the head of Chambers and the Solicitor General is subject to the directions of the Attorney General. This is a self-evident proposition and there is no need for a judicial review hearing to make this point. The court now moves to the next...

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2 cases
  • Dale Austin v The Public Service Commission
    • Jamaica
    • Supreme Court (Jamaica)
    • 29 April 2022
    ...is premature. He relies on the decision of Dale Austin v the Solicitor General and the Permanent Secretary of the Ministry of Justice 2018 JMSC Civ. 1. where Sykes J as he was then, determined that the filing of an application for leave to apply for judicial review of the recommendation of ......
  • Mr. Ian Dave Hayles v Mrs. Charlotte Alexander Hayles
    • Jamaica
    • Supreme Court (Jamaica)
    • 2 December 2022
    ...J. as he then was, in the case of Dale Austin v The Solicitor General of Jamaica and The Permanent Secretary of the Ministry of Justice [2018] JMSC Civ. 1 at paragraph 10 of his decision in commenting on the case of Debra Patrick Gardener opined that :- … not all recommendations are suscept......

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