Dale Austin v The Public Service Commission
| Jurisdiction | Jamaica |
| Judge | Pettigrew Collins J |
| Judgment Date | 29 April 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. SU 2021 CV 00504 |
and
[2022] JMSC Civ. 55
CLAIM NO. SU 2021 CV 00504
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Application for leave to apply for judicial review - Constitutionality of delegation instrument — Accountability Agreement — Regulation 17(1) of the Public Service Regulations — Bias — Legitimate expectation — Right to a hearing — obligation to give reasons for decision.
Mr Hugh Wildman and Miss Indira Patmore instructed by Hugh Wildman and Company for the Applicant.
Mr Garth Mc Bean QC and Miss Dian Johnson instructed by Garth McBean and Co. for the first respondent.
Mr Allan Wood QC and Miss Analeise Minott instructed by Livingston Alexander and Levy for the second and third respondents.
The applicant filed a Notice of Application for Court Orders on October 4, 2021, seeking leave to apply for judicial review as well as constitutional motion. The orders and declarations that the applicant is seeking leave to apply for are many and the grounds are numerous. I do not propose to set them out.
The first respondent is the body responsible for among other functions, making recommendations with respect to the appointment and removal of public officers. The second respondent is in the circumstances of this application, sued as a substantive party and not pursuant the Crown Proceedings Act. The third respondent is the Solicitor General of Jamaica.
The applicant was employed in the capacity of Assistant Crown Counsel in the Attorney General's Chambers in 2011. He stated that he was effectively appointed to the position of Assistant Crown Counsel on September 1, 2012. He claims that he has not been promoted during the period of his employment. He also claims that of the persons assigned to the litigation department, he is assigned the largest number of cases. He said that he has undergone five performance evaluations which disclosed that he had met and exceeded the requirements between 2011 and 2019, yet he has not been promoted.
He asserts that the Public Service Commission (also referred to as the Commission or the PSC) has failed to carry out its public duty to continuously consider him for promotion as higher posts became available. He contends that between 2011 and 2021 some 63 posts became available in the Attorney General's Department for which he ought to have been considered. He said that he has brought his plight to the attention of the Solicitor General, but received no response. He says that he is the only legal officer in the public service since 1962 who has never been promoted after 10 years in the LO-2 post. He says other more recently appointed legal officers have been promoted on a non-competitive basis.
According to the applicant, the treatment meted out to him over the past ten years has been characterized by a pattern of victimization, punitive measures, threat, reprisals and outright bias. He says that the Solicitor General (also referred to as the SG) and the Director of State Proceedings are the officers who are most affected by bias against him but they are the officers who have been consistently and directly involved in the process of determining whether he should be promoted. He claims that he has been the victim of defamation and of constitutional abuses by the Public Service Commission and the Attorney General and that the Supreme Court found both respondents liable in defamation and for constitutional abuses.
He asserts as evidence of bias against him on the part of the Solicitor General and the Director of State Proceedings, their alleged refusal for more than a year to ensure that payment of judgment debts and costs are made to him and their refusal to communicate with his attorneys at law regarding the matter.
He further asserts that being tainted by bias, the said two public officers were directly involved in the process of deciding whether he should be promoted. He complains further that the Solicitor General was one of four persons who interviewed him on January 14, 2021 for the post of Assistant Attorney General for which he had applied. He contends that the other three members of the interviewing panel are individuals who effectively report to the Solicitor General.
He said he was advised in April 2021 through a letter from the Solicitor General that he would not be promoted to the position he had applied for because he had scored lower than the other candidates on a test that was administered on November 2, 2020 in which he had in fact participated.
The applicant continues that he was advised of the right to place an appeal to the Public Service Commission. He said that his appeal was summarily dismissed when the Commission met on the 20 th of May 2021. Among the grievances with the handling of his matter by the PSC, is that no reason was provided for the decision to dismiss his appeal.
I shall consider the evidence of the respondents to the extent that I find it necessary to deal with the issues. I am grateful to counsel in this matter for their very helpful submissions. I will reproduce only those aspects of the submissions of each party as I find convenient in explaining the reasons for my decision.
The respondents to the application filed notices of preliminary objection in relation to the applicant's affidavits in response to those of the first and third respondents. The reason for the objection in each instance was that in large measure, each contained arguments and matters of law. There was no resistance from Mr Wildman regarding the offending paragraphs. Consequently, the greater portion of each of those two affidavits was struck out.
Rule 56.2(1) of the Civil Procedure Rules (CPR) permits an application for judicial review by any person, group or body, with sufficient interest in the subject matter.
Rule 56.3 directs that an applicant for judicial review should first seek leave to apply for judicial review. The burden of proof rests with the applicant to satisfy the court on a balance of probabilities that leave should be granted.
At the leave stage, the court is concerned with whether the threshold is met. The court is not concerned with the merits of the claim and there is really no need to delve into the details of the case. A significant portion of the information is contained in letters and documents exhibited by the parties in connection with a series of events which took place leading up to this application.
The applicant is the person adversely affected by the decisions he seeks to review. There is no assertion of lack of promptness or that the applicant has any alternative remedies so this application will proceed on the basis that he has filed the claim in a timely manner and that he has no alternative remedies.
In the case of Council of Civil Service Unions (CCSU) v Minister of State for the Civil Service [1985] AC 374, HL, Lord Diplock stated three heads under which review may be sought. These are illegality, irrationality and procedural impropriety. These concepts will be explained. The applicant has placed reliance on all three bases.
The primary role of the court at this stage, is to ensure that actions which are frivolous and vexatious are sifted out and eliminated, so that leave is not granted where an action is without any arguable ground, having a realistic prospect of success. The seminal case of Sharma v Brown-Antoine and Others (2006) 69 WIR 379, a decision of the Judicial Committee of the Privy Council, sets out the test for granting leave to apply for judicial review. Lords Bingham and Walker expounded at page 387 J of the judgment:
“The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy … Arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible in its application. As the English Court of Appeal recently said with reference to the civil standard of proof in R (on the application of N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ. 1605, [2006] QB 468, at para 62 in a passage applicable mutatis mutandis to arguability:
… the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a Court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.
It is not enough that a case is potentially arguable; an applicant cannot plead potential arguability to justify the grant of leave to issue proceedings upon a speculative basis which it is hoped the interlocutory processes of the Court may strengthen; Matalulu v The Director of Public Prosecutions [2003] 4 LRC 712 at 733.
In Shirley Tyndall O.J. et al v Hon. Justice Boyd Carey (Ret'd) et al, unreported case bearing claim number 2010 HCV 00474, Mangatal J. in explaining the concept of ‘arguable ground with a realistic prospect of success’, had the following to say:
“It is to be noted that an arguable ground with a realistic prospect of success is not the same thing as an arguable ground with a good prospect of success. The ground must...
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