DYC Fishing Ltd v The Minister of Agriculture, Aquaculture Jamaica Ltd

Judgment Date06 March 2003
Judgment citation (vLex)[2003] 3 JJC 0601
Date06 March 2003
CourtCourt of Appeal (Jamaica)
Christopher Dunkley and MarinO Sakhno instructed by Cowan, Dunkley and Cowan for the appellant D.Y.C. Fishing Ltd.
Ingrid Mangatal Actg. Deputy Solicitor-General and Michael Deans Asst. Crown Counsel instructed by the Director of State Proceedings for the Ministry of Agriculture.
Garth McBean and Lara Dayes instructed by Dunn Cox for Aquaculture Jamaica Ltd.
Joy Crawford watching proceedings on behalf of the Ministry of Agriculture.

JUDICIAL REVIEW - Orders for Prohibition and Mandamus - Leave to apply - Whether the court has jurisdiction to hear appeal - Whether appellant has sufficient interest in matter - Judicature (Civil Procedure Code) (Amendment) (Judicial Review) Rules 1998, Rule 564C(1)


This is an appeal from the order of Anderson J. sitting in the Judicial Review Court, dismissing the prayer of D.Y.C. Fishing Limited (the appellant), seeking leave to apply for Prohibition, Mandamus and several Declaratory orders.


This is the first such appeal under The Judicature (Civil Procedure Code) (Amendment) (Judicial Review) Rules, 1998, published in the Jamaica Gazette Supplement Proclamations, Rules and Regulations dated August 5, 1998 (the "Rules").


The application was made pursuant to Rule 564C(1) which reads:

  • "564C-(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this section.

  • (2) An application for leave shall be made ex parte to a judge by filing -

    • (a) a notice - containing a statement of

      • (i) the name and description of the applicant,

      • (ii) the relief sought and the grounds upon which it is sought,

      • (iii) the name and address of the applicant's attorney (if any); and

    • (b) an affidavit which verifies the facts relied on."


The reasoning in this case will be somewhat different from Minister of Commerce and Technology v Cable and Wireless Jamaica Ltd. Motion No. 18 of 1998 delivered 10 th November 1998, which was the last case before the Court, on this issue, under the old rules.


In the light of the foregoing, it is necessary to set out the order of the learned judge below and to state the basis by which this Court has jurisdiction to entertain the appeal. Here is the order of the Court below at pp 151–152 of Vol. 1 of the Record:

"UPON THE APPPLICATION FOR LEAVE TO APPLY FOR ORDERS OF PROHIBITION, MANDAMUS and DECLARATIONS dated the 5 th day of June, 2002 coming up for hearing on this day and after hearing MR. CHRISTOPHER DUNKLEY and MS. MARINA SAKHNO, instructed by COWAN, DUNKLEY & COWAN for the Applicant, MS. INGRID MANGATAL and MR. MICHAEL DEANS instructed by the Director of State Proceedings for the Minister of Agriculture; MRS. JOY CRAWFORD of the Ministry of Agriculture (watching proceedings on behalf of the Ministry); MR. GARTH MCBEAN and MS. LARA STEWART instructed by DUNN, COX on behalf of Aquaculture Jamaica Limited, intervenor IT IS HEREBY ORDERED THAT:-

  • 1. Application for Leave to Apply for Orders of Prohibition, Mandamus and Declaration is dismissed;

  • 2. Costs to the Respondent to be agreed or taxed."


The order was supported by a closely reasoned judgment which will be examined to ascertain if it can be supported.


The jurisdiction to hear the appeal


Rule 564J reads:

"Appeal from judge's order

564J. No appeal shall lie from an order made under section 564C(3) on any application for leave which may be renewed under subsection (4) of that section."


This rule emphasizes that there is no appeal to this Court when Rule 564C(3) & (4) is applicable and there is an initial application for leave without a hearing.


Such an application has been described as a paper application.


It is now necessary to turn to Rule 564C(3) & (4) to examine the circumstances when no appeal to this Court is permitted pursuant to these rules. Rule 564C(3) reads:

  • "(3) The judge may determine the application without requiring the attendance of the applicant, unless a hearing is requested in the notice of application, and need not sit in open court, and if the applicant does not appear, the Registrar shall serve a copy of the judge's order on the applicant

  • (4) Where the application for leave is refused by the judge, or is granted on terms, the applicant may renew it by applying -

    • (a) in any matter involving the liberty of the subject or in any criminal cause or matter, to a Full Court

    • (b) in any other case, to a single judge sitting in open court or, if the Court so directs, to a Full Court."


It is clear that in the ex parte application before Anderson J. there was a hearing so there could be no renewal of this application to a judge sitting in open court or to a Full Court. This is so because Rule 564C (5) reads:

"(5) No application for leave may be renewed in any matter not involving the liberty of the subject or in any non-criminal cause (3) of this section after a hearing."


The first Respondent was served and a hearing was requested. See Vol. 1 page 290 of the Record. The request for a hearing follows the regular course. Here is how Lord Diplock states it in O'Reilly v. Mackman [1982] 3 W.L.R. 1096 at 1105–1106:

"First, leave to apply for the order was required. The application for leave which was ex parte but could be, and in practice often was, adjourned in order to enable the proposed respondent to be represented, had to be supported by a statement setting out, inter alia, the grounds on which the relief was sought and by affidavits verifying the facts relied on: so that a knowingly false statement of fact would amount to the criminal offence of perjury. Such affidavit was also required to satisfy the requirement of uberrima fides, with the consequence that failure to make on oath a full and candid disclosure of material facts was of itself a ground for refusing the relief sought in the substantive application for which leave had been obtained on the strength of the affidavit. This was an important safeguard, which is preserved in the new Order 53 of 1977. The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision."


Since there was a hearing before Anderson J. lasting some four days. Rule 564J precluding an appeal did not apply.


In the instant case there was a hearing, so Rule 564C(5) supra applies. There can be no application for renewal before either a single judge or the Full Court. However, there is an unrestricted right of appeal by virtue of Section 10 of the Judicature (Appellate Jurisdiction) Act which reads:

"10. Subject to the provisions of this Act and to rules of court, the Court shall have jurisdiction to hear and determine appeals from any judgment or order of the Supreme Court in all civil proceedings, and for all purposes of and incidental to the hearing and determination of any appeal, and the amendment, execution and enforcement of any judgment or order made thereon, the Court shall subject as aforesaid have all the power, authority and jurisdiction of the former Supreme Court prior to the commencement of the Federal Supreme Court Regulations, 1958."


It should be noted that this is the counterpart to Section 12 of the Bermuda Court of Appeal Act 1964, which will be mentioned later in the case of Kemper .


The policy behind the Rules is clear. There is a renewal of the application by way of appeal direct to this Court, whenever there is a hearing. If there is no hearing then there is a renewal of the application before a single judge in open Court or the Full Court.


The circumstance where there is no appeal pursuant to the above rules is not as restrictive as it appears. There is a provision in the 1962 Court of Appeal Rules dealing with ex parte appeals which will be addressed later. I have not found Durity v. Judicial & Legal Service Commission and another [1994] 47 W.I.R. 424 helpful in this context. On the other hand, Kemper Reinsurance Co. v. Minister of Finance and others (1998) 53 W.I.R. 109 is helpful. Lord Hoffmann said at page 119:

"In principle, however, judicial review is quite different from an appeal. It is concerned with the legality rather than the merits of the decision, with the jurisdiction of the decision-maker and the fairness of the decision-making process rather than whether the decision was correct. In the case of a restriction on the right of appeal, the policy is to limit the number of times which a litigant may require the same question to be decided. The court is specifically given power to decide that a decision on a particular question should be final. There is obviously a strong case for saying that, in the absence of express contrary language, such a decision should itself be final. But judicial review seldom involves deciding a question which someone else has already decided. In many cases, the decision-maker will not have addressed his mind to the question at all. The application for leave may be the first time that the issue of the legality of the decision is raised and their lordships think that it is by no means obvious that a refusal of leave to challenge its legality should be final. The law reports reveal a number of important points of administrative law which have been decided by the Court of Appeal or House of Lords in cases in which leave was refused at first instance."


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