Eduardo Anderson v National Water Commission

• Jurisdiction: Jamaica
• Judge: Morrison JA,Brooks JA,McDonald-Bishop JA
• Judgment Date: 27 March 2015
• Neutral Citation: JM 2015 CA 40
• Docket Number: SUPREME COURT CIVIL APPEAL NO 91/2014 APPLICATION NO 9/2015
• Court: Court of Appeal (Jamaica)
• Date: 27 March 2015

[2015] JMCA App 15

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison JA

The Hon Mr Justice Brooks JA

The Hon Mrs Justice McDonald-Bishop JA (AG)

SUPREME COURT CIVIL APPEAL NO 91/2014

APPLICATION NO 9/2015

Between

Eduardo Anderson

Applicant

and

National Water Commission

Respondent

Hadrian Christie instructed by Hart Muirhead Fatta for the applicant

Kevin Williams and Colin Alcott instructed by Williams, Alcott & Williams for the respondent

CIVIL PROCEDURE - Striking out - Application to set aside Order of lower court to strike out Notice of Appeal - Application for extension of time to file submission in appeal - Application to grant leave to appeal - Application to set aside grant of leave - Whether Order granting leave to apply for judicial review appealable - Court of Appeal Rules 2002, R. 2.2(2) - Civil Procedure Rules 2002, R. 56.3(1)

Morrison JA

Introduction

1 On 13 March 2015, the court made an order (i) dismissing the applicant's application to set aside Daye J's grant of leave to appeal to the respondent and to strike out the respondent's notice of appeal; and (ii) granting the applicant's application for an extension of time within which to file written submissions in the appeal, by extending the time for a period of 14 days, or such longer time as the court may subsequently allow. The question of costs was at that time reserved for further consideration by the court.

2 These are my reasons for concurring in that decision. For the purposes of this judgment, I will refer to the applicant as “Mr Anderson” and the respondent as “NWC”.

3 At all times material to this application, Mr Anderson was an employee of the NWC. By an order made on 10 October 2014, Daye J granted leave to Mr Anderson to apply for judicial review of the decision of the NWC to withhold his salary. Although no representative of the NWC was present before him at the time, the learned judge also gave NWC leave to appeal against the grant of leave to Mr Anderson and notice and grounds of appeal were accordingly filed by NWC on 22 October 2014.

4 By notice of application for court orders dated 20 January 2015, Mr Anderson applied to this court for orderssetting aside Daye J's grant of leave to appeal to NWC and striking out NWC's notice of appeal. So although this application is in one sense very much a preliminary skirmish between the parties, it does have potentially serious consequences, since a result in Mr Anderson's favour will effectively put an end to the appeal. But, in the event that his primary application does not succeed, Mr Anderson also asks for an extension of time within which to file written submissions in opposition to the appeal.

5 Mr Anderson relies on the following grounds:

• ‘(a) The learned judge erred in granting leave to appeal [to] the Appellant in the absence of an application for leave being made.

• (b) The decision of the learned judge is not appealable.’

6 In resisting this application, NWC contends that both of these grounds are unmeritorious. Additionally, NWC disputes Mr Anderson's right to seek to impugn Daye J's order granting leave to appeal in this manner. In reliance on the decision of the Privy Council on appeal from this court in Leymon Strachan v The Gleaner Company Ltd and Another1 (“ Leymon Strachan”), NWC submits that the appropriate route of challenge to the order of a judge of the Supreme Court is by way of an appeal to this court.

7 The principal issues which arise on this application are therefore (i) whether it was open to Daye J to grant NWC leave to appeal without any application having been made to the court for same; (ii) whether Mr Anderson, by making an application to strike out Daye J's order granting leave to appeal, has adopted the proper procedure; and (iii) whether the judge's decision granting leave to Mr Anderson to apply for judicial review is appealable.

The statutory and regulatory framework

8 The jurisdiction of the Court of Appeal, which is entirely statutory, derives from the provisions of the Judicature (Appellate Jurisdiction) Act (“the Act”). Section 10 of the

Act provides that, ‘[s]ubject 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 civil proceedings…’ However, section 11(1)(a)-(e)excludes the right of appeal in certain cases, which include appeals ‘from the decision of the Supreme Court or of any Judge thereof where itis provided by any law that the decision is to be final’ 2. In certain other cases, section 11(1)(f) restricts the right of appeal by providing that, save in the exceptional cases listed in the subsection, no appeal shall lie from any interlocutory judgment or any interlocutory order given or made by a judge of the Supreme Court without the leave of the judge giving the judgment or making the order, or of the Court of Appeal.

9 Relevant rules of court are contained in the Civil Procedure Rules 2002 (“the CPR”) and the Court of Appeal Rules 2002 (“the CAR”). Rule 2.2(2) of the CPR defines “civil proceedings” to include judicial review. Rule 56.3(1) provides that a person wishing to apply for judicial review must first obtain the leave of the court. The application for leave, which may be made without notice 3 , is made to a judge, who may grant it with or without hearing the applicant 4 . Where an application for leave is refused by the judge or is granted on certain 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; or (b) in anyother case to a single judge sitting in open court’ 5.

10 Rule 1.1(8)(b) of the CAR, in defining a “procedural appeal”, excludes from the definition ‘an order granting relief made on an application for judicial review (including an application for leave to make the application)’. Rule 1.8(1) provides that, where an appeal may only be made with the permission of the court beloworof this court, ‘a party wishing to appeal must apply for permission within 14 days of the order against which permission to appeal is sought’. Rule 1.8(2) provides that where the application may be made to either court, it must first be made to the court below; rule 1.8(3) provides that an application to the court below (though not to this court) may be made orally;and rule 1.8(4) provides that notice of the application need not be given to any proposed respondent, unless otherwise ordered by the court below or the single judge of this court. And finally, rule 1.13(b) provides that the court may ‘set aside permission to appeal in whole or part’.

Issue (i)- the grant of leave to appeal

Issue (ii) – the application to set aside the grant of leave

11 It will be convenient to take these two issues together. As has been seen, NWC was not represented at the hearing before Daye J on 10 October 2014, when the order granting leave to Mr Anderson to apply for judicial review was made. Mr Hadrian Christie for Mr Anderson therefore submits that, in the absence of any application for leave to appeal against this order, it was not open to the judge to grant leave to appeal to NWC, in effect of his own motion. For this submission, Mr Christie primarily relies on the statement in rule 1.8(1) of the CAR that an applicant for permission to appeal ‘must apply for permission’. But reliance is also placed on the decision of this court in Candine Anderson v The Attorney General of Jamaica6 (“ Candine Anderson”), in which an appeal was allowed against the order of a judge of the Supreme Court who, acting entirely of his own motion, struck out the appellant's claim for constitutional relief and set aside the judgment on admission which had been entered in her favour against the respondent. And, as regards the exercise of the discretion conferred on this court by rule 1.13(b) of the CAR to set aside an order granting permission to appeal, Mr Christie referred us to the case of Paulette Bailey & Edward Bailey v The Incorporated Lay Body of the Church in Jamaica and the Cayman Islands in the Province of the West Indies7 (“ Paulette Bailey”).

12 In answer to these submissions, Mr Kevin Williams for NWC contends, with some force, that, Daye J's order granting leave to appeal having been perfected, the appropriate route of challenge to that order was by way of an appeal to this court, and not by way of the current application to set aside the grant of leave. As I have already indicated, Mr Williams relies on Leymon Strachan for this submission.

13 Given that Mr Williams raises a jurisdictional point, it may be appropriate to deal with it first. The issue in Leymon Strachan was whether an order made by one judge (“the first judge”) of the Supreme Court setting aside a default judgment could itself be set aside by another judge (“the second judge”) of that court, on the ground that the first judge's order had been made without jurisdiction and was therefore a nullity. When the application to set aside the first judge's order came on for hearing before the

second judge, he upheld a preliminary objection that he had no jurisdiction to set aside an order made by a judge of co-ordinate jurisdiction and accordingly declined to make the order sought. The second judge's decision was upheld on appeal to this court, but there was a dissenting judgment and the reasoning of each of the two judges in the majority was not the same.

14 However, on a further appeal to the Privy Council, the Board had no difficulty in holding that the second judge's decisionto decline jurisdiction was plainly right and that a judge of the Supreme Court, as a judge of co-ordinate jurisdiction, had no power to set aside an order made by another judge of that court. Delivering the judgment of the Board, Lord Millett said this 8:

‘The...