Danville Walker v Contractor-General of Jamaica

• Jurisdiction: Jamaica
• Judge: Fraser J
• Judgment Date: 26 March 2012
• Neutral Citation: [2012] JMSC Civ 31
• Docket Number: CLAIM NO. 2012HCV00994
• Court: Supreme Court (Jamaica)
• Date: 26 March 2012

[2012] JMSC Civ 31

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2012HCV00994

Between

Danville Walker

Applicant

and

The Contractor-General of Jamaica

Respondent

Dr. Lloyd Barnett and Keith Bishop instructed by Bishop & Partners for the Claimant

Mrs. Jacqueline Samuels-Brown , Q.C. instructed by Firmlaw for The Contractor-General

Judicial Review — Reluctance of court to review decision to prosecute even greater when challenge to decision indirect — Alternative remedy as a bar to grant of leave — Discretionary nature of judicial review — Desirability to avoid multiplicity of proceedings — Court will not act in vain

Fraser J

BACKGROUND

1 In response to concerns that the scrap metal trade in Jamaica was encouraging the theft of property, the Minister of Industry, Investment and Commerce acting under section 8 of the Trade Act made ‘The Trade (Scrap Metal) (Prohibition of Dealing) Order’ dated July 27, 2011. This Order which came into effect on the 29 ^th day of July 2011, prohibited the purchase, sale, distribution, import or export of, or other dealing in scrap metal, subject to two exceptions. Firstly, the Order did not apply to scrap metal that for the purposes of the Customs Act 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 directly by that body. However no one acting in any capacity on behalf of such a body could conduct export of scrap metal.

2 The time allowed for the first exception was subsequently found to be inadequate. This led to the Minister promulgating a new Order on 31 ^st August 2011 that superseded the first Order. This replacement Order had the same title as the first except for the addition ‘(No. 2)’. It was also in the same terms as the first Order, save that the time limited for the first exception to apply was expanded from 29 ^th July 2011 to 16 ^th September 2011.

3 The Ministerial Orders were superimposed on an existing regulatory structure, whereby permits issued under regulation 12 (3) a of The Trade (Scrap Metal) Regulations 2007 are required to export scrap metal. These 2007 regulations were made by the Minister under powers conferred by sections 8 and 18 of the Trade Act. Therefore, after the Ministerial Order of 31 ^st August 2011 came into force, scrap metal could only lawfully be exported if it fell within either exception of that Order and the exporter had a permit for such export under the 2007 regulations.

THE FORMAL REQUISITION FROM THE OFFICE OF THE CONTRACTOR-GENERAL (OCG)

4 By letter dated November 18, 2011 the OCG wrote to the applicant. The caption to the letter reads as follows:

Re: Notice of Formal Requisition for Information and Documentation to be Supplied under the Contractor General Act — Conduct of Investigation — Concerning Alleged Breaches of Prescribed Licences for the Scrap Metal Industry — Exportation of Scrap Metal in Violation of the Ministerial Prohibition Order

5 The first paragraph advised the applicant that the OCG had commenced a Special Statutory Investigation inter alia ‘into the circumstances surrounding the alleged breaches which are associated with the award and use of certain prescribed licences for the Scrap Metal Industry, and the controversy surrounding the exportation of Scrap Metal in alleged contravention of a Ministerial/Cabinet Prohibition Order’.

6 The OCG then set out a series of allegations and representations that informed its decision to commence the investigation. The salient content of these are set out below in summary, though not in exactly the same order as they appeared in the requisition. The allegations and representations included:

1

The initial ban by the Administration on the Scrap Metal Trade effective April 28, 2011 following reports of theft to facilitate the trade and the assertion that ‘the current way in which the industry was operating, is not in the best interest of the country’ ; 2. The July 2011 Cabinet decision to “shutdown” the Scrap Metal Industry due to theft of valuable infrastructure; 3. A letter dated October 10, 2011 from the Applicant Danville Walker, then Commissioner of Customs, to the General Manager of the Shipping Association of Jamaica that provided a list of fifteen (15) entities authorized to export scrap metal. 4. The allegations by the opposition spokesman on industry that despite the ban, scrap metal exports continued, and the subsequent disclosures by the Permanent Secretary in the Ministry of Industry Investment and Commerce, that only two (2) entities had received permission to trade in scrap metal under certain specified conditions. The allegations and disclosures were contained in a RJR News Article dated October 28, 2011; 5. Media articles that quoted the Minister of Industry, Investment and Commerce conceding a breach of the Cabinet Order/Decision which purportedly stipulated that entities eligible to export scrap metal first needed to procure a permit from the Trade Board. An example was given of the November 2, 2011 Jamaica Gleaner report that, ‘The Government yesterday blamed the Jamaica Customs Department for allowing at least eight companies to export scrap metal without the required permits from the Trade Board in the weeks after the industry was banned’ ; 6. A November 3, 2011 Gleaner/Power 106 News Article which indicated that ‘The industry, investment and commerce ministry reported that 97 containers were shipped by customs without the requisite permits from the Trade Board’; 7. A Jamaica Observer article of November 3, 2011 which reported that, ‘The Jamaica Customs Department says it accepts responsibility for allowing select persons to export scrap metal without the requisite licence from the Trade Board for each specific shipment’ . The article also quoted a Release purportedly issued by the Jamaica Customs Department which stated, ‘…it is apparent that certain interpretations were made of the order by the department which were not in alliance with what the Ministry of Industry, Investment and Commerce required. The department accepts full responsibility for the misinterpretation that resulted in those scrap metal exports.’

7 The formal requisition from the OCG also brought to the attention of the Applicant certain provisions of the Contractor-General Act (‘the Act’); in particular all or parts of sections 4, 5, 15, 17, 18, 22 and 29. In the context of this application it is useful to highlight the following provisions:

1

Section 4 (1) (b) which mandates the Contractor-General, ‘…on behalf of Parliament to monitor the grant, issue, suspension or revocation of any prescribed licence , with a view to ensuring that the circumstances of such grant, issue, suspension or revocation do not involve impropriety or irregularity and, where appropriate, to examine whether such licence is used in accordance with the terms and conditions thereof.’ (Emphasis by the OCG in its requisition) . 2. Section 4 (2) (d) which prescribes the power of a Contractor-General ‘to have access to all books, records, documents or other property used in connection with the grant, issue, suspension or revocation of any prescribed licence whether in the possession or any public officer or any person’. 3. Section 4 (2) (e) which prescribes the power of a Contractor-General to ‘require any Public Body to furnish in such manner and at such times as may be specified by the Contractor-General, information with regard to the award of any contract and such other information in relation thereto as the Contractor-General may consider desirable’. 4. Section 4 (4) which provides that, ‘For the purposes of paragraphs (d) and (e) of subsection (2) the Contractor-General shall have power to require any public officer or any other person to furnish in such manner and at such times as may be specified by the Contractor-General, information with regard to the grant, issue, suspension or revocation of any prescribed licence and such other information in relation thereto as the Contractor-General considers desirable’. 5. Section 15 (1) which provides: ‘…a Contractor-General may if he considers it necessary or desirable conduct an investigation into any or all of the following matters— (a)…. (e) the circumstances of the grant, issue, use, suspension or revocation of any prescribed licence;…7rdquo; 6. Section 29 which provides as follows: ‘Every person who - (a) ….. (b) Without lawful justification or excuse - (i) obstructs, hinders or resists a Contractor-General or any other person in the execution of his functions under this Act; or (ii) fails to comply with any lawful requirement of a Contractor-General or any other person under this Act, …shall be guilty of an offence…’

8 Though not referred to in the Formal Requisition it is also important to outline the definition of ‘prescribed licence’ contained in section 2 of the Act.

‘prescribed licence’ means any licence, certificate, quota, permit or warrant issued or granted pursuant to any enactment by a public body or an officer thereof;

9 The case of Lawrence v Ministry of Construction (Works) and the Attorney General (1991) 28 J.L.R. 265 was also highlighted by the OCG as authority for the proposition that the powers of the Contractor-General to monitor or investigate the award of a contract or issuing of a licence/permit arise prior to such contract or licence/permit being granted or issued.

10 The OCG's Formal Requisition then set out a total of 32 Requisitions/Questions to which the Applicant was required to respond no later than 3:00 p.m. on Friday December 2, 2011. Many of the requisitions/questions had several sub-parts which in effect made the total number of responses required approximately 90. Several of the responses required executive summaries within which a number of issues were to be addressed.

THE SUBSEQUENT...