Deborah Patrick-Gardner v The Public Service Commission

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: T. Hutchinson Shelly, J
• Judgment Date: 31 July 2024
• Docket Number: CLAIM NO. SU2022CV02300

Between

Deborah Patrick-Gardner

Claimant

and

The Public Service Commission

Defendant

and

Attorney General of Jamaica

Interested Party

Consilidated with:

Between

Deborah Patrick-Gardner

Claimant

and

The Public Service Commission

Defendant

and

Attorney General of Jamaica

Interested Party

[2024] JMSC Civ. 96

CLAIM NO. SU2022CV02300

CLAIM NO. SU2022CV02474

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

Civil Procedure — Disclosure — Specific Disclosure — Nature and Import of Pleadings — Criteria for Ordering Specific Disclosure — Whether documents requested are directly relevant to the issues in dispute — Whether documents requested are in the defendant's possession or under its control — Whether an Order for specific disclosure is necessary in order to dispose of the claim fairly or to save costs — Civil Procedure Rules, 2002, Rule 28.1, 28.2, 28.6, 28.7 — Staff Orders for the Public Service, order 2.4(i)

Costs — Cost to the Claimant in Any Event — Who is the successful party — Whether the general rule for cost orders should be displaced — Civil Procedure Rules, 2002, Rule 64.6

Mr. Harrington McDermott and Miss Giselle Campbell instructed by Patterson Mair Hamilton appeared for the Claimant

Miss Lisa White and Miss Kristina Whyte instructed by the Director of State Proceedings appeared for the Defendant and Interested Party.

IN CHAMBERS VIA VIDEO CONFERENCE

T. Hutchinson Shelly, J

INTRODUCTION

1 The Claimant, Mrs. Deborah Patrick-Gardner, is the Chief Technical Director, Labour at the Ministry of Labour and Social Security (“MLSS”). The Defendant, the Public Services Commission, is the statutory body that has oversight of the appointment, disciplinary and removal processes of public sector employees. The Attorney General of Jamaica is joined as an interested party in these proceedings, because they are the legal advisor to the Government and the nature of this claim is one which may financially affect the Government.

2 The Claimant has initiated proceedings for Constitutional Motion for damages for the breach of her right to equitable and human treatment and Judicial Review against the Defendant for its alleged malfeasance in, inter alia, not investigating the allegations of the Claimant in regard to the Permanent Secretary of the MLSS.

3 The Claimant now seeks an order for specific disclosure to “substantiate the claim and quantify her damages.”

BACKGROUND

4 The Claimant was granted leave to apply for Judicial Review, against the Defendant, on paper by Tie-Powell, J on the 27 ^th day of July 2022. Consequent upon this decision, the Claimant filed an Amended Fixed Date Claim Form on the 10 ^th day of August 2022 where she seeks the following reliefs:

• (i) An Order of Mandamus directing the Defendant to deal with the complaints of misconduct lodged by the Claimant against Mrs. Collette Roberts Risden, Permanent Secretary in the Ministry of Labour and Social Security in accordance with The Public Service Regulations, 1961;

• (ii) An Order of Certiorari quashing the decision of the Defendant contained in letters dated April 27, 2022 and April 29, 2022;

• (iii) A Declaration that the Claimant is a permanent pensionable public officer appointed to the post of Chief Technical Director (CTD), Labour in the Ministry of Labour and Social Security;

• (iv) A Declaration that the Claimant's fundamental constitutional right to equitable and humane treatment guaranteed under Section 13(3)(h) of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011 has been infringed by the Defendant;

• (v) An injunction restraining the Defendant or any other authority whether by themselves, their employees or agents, from taking any steps to remove the Claimant from the post of Chief Technical Director, Labour;

• (vi) An injunction restraining the Defendant or any other person acting pursuant to the Public Service Regulations whether by themselves, their employees or agents, from taking any and/or any further steps, in any manner whatsoever, that adversely interferes with or affects the status of the Claimant as Chief Technical Director, Labour;

• (vii) Damages including Constitutional/Vindicatory damages;

• (viii) Interest pursuant to the Law Reform (Miscellaneous Provisions) Act;

• (ix) Costs to the Claimant; and

• (x) Such further and/or other relief as this Honourable Court deems fit.

5 The Defendant has not yet filed a Defence or Response to the above Claim.

6 The Claimant filed two (2) separate Notices of Application for Court Orders on the 31 ^st day of July 2023. The Claimant sought orders for specific disclosure and to add and designate the Attorney General of Jamaica as an “Interested Party”. Both Notices of Application were fixed to be heard jointly on the 8 ^th day of February 2024 at 10:00 am.

7 K. Anderson J, in chambers via video conference, on the 8 ^th day of February 2024 considered the Applications and made an order that deemed the Attorney General of Jamaica an Interested Party to the claim. However, the hearing of the Notice of Application for Court Orders where the Claimant sought orders for specific disclosure was adjourned to the 1 ^st hearing of the Fixed Date Claim Form on the 18 ^th day of June 2024. This is the Application upon which the Court must now decide.

8 The Claimant seeks the following orders in her Notice of Application for Court Orders:

• 1. An order for specific disclosure that the Public Service Commission to disclose to the Claimant documents containing the following information:

  • (i) All salary increments (whether anniversary or otherwise) that were paid to the Claimant since her appointment as Principal Executive Officer on 1 October 2011 to date, to include:

    • a. the type of increment to which the Claimant had become entitled;

    • b. the dollar amount of the increment to which the Claimant had become entitled;

    • c. the actual dollar amount of any increment paid;

    • d. the time period for which each paid increment relates; and

    • e. the date of payment

  • (ii) Any increment due to the Claimant by virtue of her eligibility and/or entitlement that has been withheld or remain outstanding, which information must include:

    • a. the type and dollar amount of the increment withheld or that remain outstanding;

    • b. the time period to which such increment relates and the reason if any, for the increment being withheld or remain outstanding.

• 2. An order that the Claimant's complete personnel files held at the Ministry of Labour & Social Security, the Ministry of Justice and the Court Administration Division be specifically disclosed to her and that she be permitted access to same.

• 3. Costs of the Application to the Claimant in any event.

• 4. Such further or other relied as this Honourable Court deems just in the circumstances.

9 The ground on which these orders are sought are:

• 1. Pursuant to Rule 56.13(2)(iii) the judge at a First Hearing of an administrative claim may make orders for disclosure of documents.

• 2. The order for specific disclosure sought herein seeks the disclosure of documents that are directly relevant to one or more matter in issue in the proceedings, as provided by Rule 28.6(5).

• 3. Specific disclosure of the documents sought herein is necessary in order to dispose fairly of the claim, as provided by Rule 28.7(1).

• 4. The documents in respect of which specific disclosure is sought are or have been in the control of the Defendant within the meaning of Rule 28.2(2)(b) and (c).

• 5. The Claimant's claim seeks a declaration that her fundamental right to equitable and humane treatment under the Charter of Rights has been breached and she seeks Damages, including Constitutional and Vindicatory Damages. The information requested, and withheld, is necessary for the Claimant to substantiate the claim and quantify her damages; and to enable the Court to assess damages should it find that the Claimant's rights were breached.

10 The Fourth Affidavit of Deborah Patrick Gardner, filed on the 10 ^th day of July 2023, predates the filed Application for specific disclosure but is the Affidavit which outlines information related to the reasons for the Application. I will not endeavour to reduce the contents of that Affidavit here, but will mention portions of that Affidavit, as is necessary, in the latter portions of the judgment.

SUBMISSIONS

11 The Claimant proffered skeleton submissions filed on 7 ^th day of February 2024 and further elaborated on same, orally, on the date of the hearing of this Application. The Defendant filed written submissions opposing the Application on the 6 ^th day of February 2024 and further argued points therein, orally, on the date of the hearing. The submissions of the Parties are summarized accordingly, and no disrespect is intended in reducing the arguments of Counsel.

The Claimant's Submissions

12 Counsel for the Claimant argued that the Claimant is empowered to make an Application by virtue of Rule 28.6(5) of the CPR. Counsel submitted that the documents for which specific disclosure is being sought are directly relevant to the proceedings and as such the Claimant can seek an order requesting specific disclosure of same. Counsel relied on Rule 28.1(4) of the CPR and the case of Miguel Gonzales and Suzette Saunders v Leroy Edwards [2017] JMCA Civ 5 as being instructive in the circumstances.

13 Counsel submitted that the documents for which specific disclosure is sought are directly relevant to the Claimant's substantive claim in that the information will allow:

• (i) The Claimant to substantiate her claim;

• (ii) The Claimant to quantify her damages; and

• (iii) The Court to assess damages should it find that the Claimant's rights have been breach.

14 Counsel further submitted that the Defendant has not filed any Defence or Response to the Claim or this Application which would disclose that the documents...