Danville Walker v Contractor-General

JurisdictionJamaica
CourtSupreme Court (Jamaica)
JudgeCampbell J,Sykes J,Straw J
Date10 April 2013
Docket NumberCLAIM NO. 2012 HCV 00994

[2013] JMFC Full 1

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FULL COURT

Cor:

The Honourable Mr Justice Campbell

The Honourable Mr Justice Sykes

The Honourable Miss Justice Straw

CLAIM NO. 2012 HCV 00994

Between
Danville Walker
Applicant
and
The Contractor-General
Respondent

Dr Lloyd Barnett and Mr Keith Bishop instructed by Bishop and Partners for the applicant

Mrs Jacqueline Samuels-Brown , QC for the respondent

JUDICIAL REVIEW — RENEWAL OF APPLICATION — TEST FOR LEAVE TO APPLY FOR JUDICIAL REVIEW — DELAY IN APPLYING FOR JUDICIAL REVIEW — WHETHER REMEDY WOULD BE GRANTED EVEN IF APPLICATION FOR LEAVE TO APPLY JUDICIAL REVIEW GRANTED — WHETHER CRIMINAL PROCESS PROVIDES ADEQUATE MEANS OF REDRESS — WHETHER APPLICANT SHOULD BE GRANTED IF CRIMINAL PROCESS PROVIDES ADEQUATE REMEDY — CONTRACTOR GENERAL ACT — SECTIONS 4,15,18, 29 OF ACT — PARTS 26, 56 AND 73 OF CIVIL PROCEDURE RULES — WHETHER APPLICATION IN TIME — WHETHER COURT HAS POWER TO EXTEND TIME TO RENEW APPLICATION

Campbell J
Background
1

The Office of the Contractor-General is constituted a Commission of Parliament to monitor the award and the implementation of government contracts as well as monitoring the grant, issue, suspension of any prescribed licence, among other functions. The applicant, the Honourable Danville Walker OJ, is a former Commissioner of Customs having been appointed in 2008. He has been conferred with national honours for public service and resigned office on the 6 th November 2011.

2

The scrap-metal trade was the subject of a ban which took effect from the 28 th April 2011. This was after the reported theft of property and infrastructure to facilitate the trade. Despite the ban, the thefts continued unabated. The Government took the further decision to cease the general trade in the scrap-metal industry. As a result, the Trade (Scrap-metal) (Prohibition of Dealing) Order, dated 27 th July 2011, was effected by the Minister of Industry, Investment and Commerce. The Order exempted two categories of scrap traders. Firstly, scrap-metal that had been entered for export on or before the 29 th July 2011. Secondly, scrap-metal that was generated by a body in its normal course of business could be exported by that body. The Order prohibited the purchase, sale, distribution, import or export of, or the other dealings in scrap-metal.

3

The time allowed of the 29 th July 2011, was found to be inadequate. A new Order was promulgated on the 31 st August 2011. This extended the time limited for the first exemption to be from the 29 th July 2011 to the 16 th September 2011. Scrap-metal could only be legally exported if it fell into one of the two exempted categories. Despite the imposition of the general ban, there were allegations of shipments through customs without the necessary permits. The relevant Ministry conceded that there was a breach of the Order requiring prior permission for the export of scrap-metal. The Jamaica Customs was blamed for the breach and accepted responsibility “for allowing select persons to export scrap-metal without the requisite licence from the Trade Board for each specific shipment.”

4

On the 18 th November 2011, the Contractor-General wrote the applicant advising him that he had commenced a Special Statutory Investigation into the circumstances surrounding the alleged breaches in the export of scrap-metal. The letter of Requisition for Information (the Requisition) detailed the legislative source on which the Contractor-General relied in the exercise of his powers. The Requisition listed some thirty two (32) questions, many of which had subdivisions totalling about ninety (90) subdivisions and requests for executive summaries. It required the applicant to provide the information and documentation by the 3 rd of December 2011.

5

On the 29 th November 2011, the applicant's counsel responded to the Requisition. This response started a chain of correspondence described as “robust” by Fraser J, and vitriolic by counsel for the respondent. The letter of the 29 th November 2011, by Bishop and Partners, noted that the Contractor-General's power to make requisitions and ask questions is statutory and stated, “In light of this, we must be satisfied that you are lawfully exercising the power you claim or what you intend to do by this investigation is within the scope of your authority under the Contractor-General Act. Accordingly, we will need time to effectively complete the process mentioned above.”

6

On the 30 th November 2011, the Contractor-General replied by extending the time for compliance with the Requisition “by no longer than seven days, that is to the 9 th December 2011 at 12:00 noon”, and ended with the comment, “that the Office of the Contractor-General has never been intimidated, deterred or obstructed by claims which are, on the face of things, patently vexatious, frivolous, misconceived or misguided.”

7

On that same date, the applicant, through his counsel, invited the respondent “to do what is decent and remove yourself, in the public interest, from the investigation so that other persons who will take a more professional and dispassionate approach can conduct the investigation. … We will not be frightened by your deadline of December 9 th 2011. If it is convenient for us, we will comply and if not, we will use our options in law to protect our client from any further abuse from your office.”

8

On the 2 nd December 2011 the Contractor-General responded by restating that the deadline of the 9 th December 2011 remains. Nonetheless, on the 12 th December, the Contractor-General further extended the deadline for compliance with the Requisition, to the 15 th December 2011 and warned the applicant to comply or to show cause why he should not be referred to the Director of Public Prosecutions (DPP), for prosecution under section 29 (b) of the Contractor-General Act. The letter cautioned the applicant in these terms, “Please note that should you fail to meet the revised deadline or to show lawful cause, in writing, why you should not be referred to the Office of the Director of Public Prosecution [you will be so referred] without any further notice given to you or to your Attorney-at-Law.”

9

On the 20 th December 2011, counsel for the applicant wrote the DPP, stating that, in their opinion it was doubtful that the Contractor-General has any jurisdiction or power to issue the requisition since the applicant had no authority to grant, issue or cancel licences or regulate their use and the applicant had not purported to do so, however, their client had indicated a willingness to answer the questions. An undertaking was given to complete the answers subject to the limitations that had been mentioned by the 31 st December 2011. On the 23 rd December, the answers to the questions posed in the Requisition were given to the Office of the Contractor-General.

10

On the 1 st February 2012, two summonses were issued to the applicant requiring him to appear at the Resident Magistrate Court at Half Way Tree to answer charges that he, on the 2 nd and 15 th December 2011 respectively, without lawful justification or excuse obstructed hindered or resisted a lawful requirement of the Contractor-General, in breach of section 29 (9) (b) (1) of the Contractor-General Act.

Notice of Application for Court Orders for Administrative Orders for Judicial Review
11

On the 17 th February 2011, the applicant filed Notice of Application for Court Orders, supported by an affidavit of Mr Danville Walker, both documents dated 17 th February 2011. The Notice sought:

  • (a) An Order for leave for judicial review of the Notice of Formal Requisition for information and Documentation issued by the Contractor-General on 18 th November 2011 and of the decision of the Contractor-General to refer the matter to the Director of Public Prosecution for the institution of a prosecution of the Applicant;

  • (b) A declaration that the Notice of formal Requisition for information and documentation issued by the Contractor-General and dated 18 th November 2011 is in excess of jurisdiction, ultra vires and void;

  • (c) An Order that the granting of leave operate as a stay for all consequential ruling and proceedings arising from the decision of the Contractor-General;

  • (d) Costs to be costs in the cause.

Application for leave before Fraser J
12

The application for leave for judicial review was heard on 20 th February 2012 by Mr Justice Fraser, who invited counsel to amend Order (a), of the Notice to include the remedy sought to read, ‘An Order for leave for judicial review by way of Certiorari to set aside the Notice of Formal Requisition for information.’ Fraser J felt that the words ‘setting aside’ would be read as ‘quash’ to cause the language to conform with the usual usage in judicial review. Mrs. Samuels-Brown objected to the amendment and submitted that the Notice as filed constituted a nullity.

Applicant's Submission
13

Before Fraser J, Dr Barnett submitted that the requisition was ultra vires, irrational, and included conditions that were unfair. He maintained that in the Requisition, the basis for assumption of jurisdiction was section 4 (1) (b) of the Contractor-General Act. That section, according to Dr Barnett, only spoke to the monitoring of the grant, issue, suspension or revocation of any prescribed licence. It was further submitted that section 4 was not applicable. It was also said that it was a Ministerial Order which was required as Cabinet had no power to make such an order. Counsel submitted that if someone who was licensed and exempted failed to provide notification of his source of scrap-metal, that should be investigated by the police and would have nothing to do with the issue, cancellation or use of a licence. He submitted that that would be a...

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