Genia Powell v The Board of Management of John Mills Primary and Junior High School
| Jurisdiction | Jamaica |
| Judge | Thomas, J. (AG.) |
| Judgment Date | 25 June 2018 |
| Neutral Citation | [2018] JMSC Civ 118 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2016 HCV 03811 |
| Date | 25 June 2018 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
CLAIM NO. 2016 HCV 03811
and
and
Ms. Olivia Derrett for the Applicant.
Ms. Carla Thomas for the Respondents.
Application — for extension of time to apply for leave for Judicial Review — Whether the application was made promptly — Whether there is good reason to grant the extension of time — Where there will be substantial hardship or prejudice to the rights of any person — Whether there is an arguable case for legitimate expectation — Whether there will be detriment to good administration.
I will commence this matter by briefly summarizing the uncontested facts. By letter dated September 1, 2014, the Applicant was informed by the chairman of the Board of Management of John Mills Primary and Junior High School (herein after refer to as the Board) that she was appointed to act as vice principal vice Ms. Beulah Dixon who proceeded on pre-retirement leave. That letter did not indicate when the Applicant's acting appointment would come to an end. The penultimate paragraph of that letter stated: “ The additional communication will be issued in due course.” By letter dated the 24 th of April 2015, the Applicant was informed by the principal of John Mills Primary and Junior High School, Mr. Bradley Robinson, that her acting appointment would end on April 1,2015 and that she would be reverted to her substantive post May 1, 2015. (As will be seen from later correspondence and the date that the Applicant was told she would be reverted to her substantive post, the indication that the date her acting appointment would end on the 1 st of April was clearly an error. It should have read the 30 th of April). By letter dated the 3 rd of February 2016, the Applicant was informed through her attorney—at-law Oswest Senior Smith and Company by Mr. Richard Gordon, the Director of Schools' Personnel of the Ministry of Education that approval had been granted for her to act as vice principal with effect from the 1 st of September 2014 to the 30 th of April 2015 vice Ms. Beulah Dixon on pre-retirement leave. The letter also indicated the salary and allowances that she should be paid for the period. By letter dated the 22 nd of February 2016 the Applicant was informed through her attorney-at-law by the chairman of the Board, that it was the Board's position that the letter of appointment for the Applicant to act as vice principal, was for the Applicant to act vice Ms. Beulah Dixon who proceeded on preretirement leave with effect from September 1 st 2014 to April 30 th 2015. The letter further stated that, “This means that the appointment of Ms. Powell ended on April 30, 2015 there being no further communication to her from the board extending said acting appointment”.
It is clear from the facts that the Applicant did commence duties as acting vice principal on the 1 st of September 2014. In September of 2015 a new acting vice principal was appointed. In January 2016 another acting vice principal Mrs. Pearline Gayle was appointed to act for the period 1 st of January 2016 to the 31 st of August 2016. The indication from the Respondent, which has not been challenged by the Applicant, is that Ms. Gayle is still acting in the position as vice principal.
Arising from these facts there are in fact two applications for the court to consider. The original application was filed on the 9 th of September 2016. However, an amended application was filed on the 7 th of March 2017. In this amended notice of application, the applicant is seeking an extension of time to apply for leave for Judicial Review as also leave to apply for Judicial Review. In the application the Applicant seeks the following orders:
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(i) An extension of time within which to apply for leave for Judicial Review.
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(ii) Leave to apply for Judicial Review of the decision of the 1 st Respondent.
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(iii) A stay, restraining the 1 st Respondent from appointing a permanent vice principal pending the determination of the matter.
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(iv) Damages
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(v) Orders as to cost
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(vi) Such further and other reliefs as this Honourable Court deems just.”
The substantive reliefs that are being sought by the Applicant in relation to Judicial Review can be summarized as follows;
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i. A declaration that the decision of the 1 st Respondent is in breach of the Education Act (Regulation) and also in breach of the principles of natural justice.
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ii. A certiorari to quash the decision of the 1 st Respondent.
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iii. That the Applicant be reinstated as the acting vice principal of John Mills Primary and Junior High School or in the alternative that she be paid three (3) years salary of an acting vice principal.
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iv. That the 1 st Respondent be restrained from appointing a permanent vice principal until this issue is determined.
The grounds expressed by the Applicant for the reliefs being sought are as follows:
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(i) The 1 st Respondent has acted in breach of the Education Act (Regulation) in particular Schedule A (4).
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(ii) The dismissal of the Applicant is in breach of the principles of natural justice.
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(iii) There was no decision from the 1 st Respondent dictating that the period for the Applicant to act as vice principal of John Mills Primary and Junior High School was for one(1) year
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(iv) The principal of John Mills Primary and Junior High School attempted to terminate the employment of the applicant as acting vice principal without the consent or knowledge of the 1 st respondent.
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(v) The Applicant has suffered serious hardship from the decision.
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(vi) For the fair and just disposal of the matter pursuant to the overriding objective of the Civil Procedure Rules, 2002, as amended.
The correct approach the court must take with regard to the instant matter is that the application for extension of time must be considered first. Where this application fails the application for leave for Judicial Review will automatically fail.
The issues that I must address with regard to the application for extension of time are:
In order for me to determine whether there was delay in making the application I must first determine the time that the grounds for the application arose.
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(i) Whether there was delay in making the application for extension of time.
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(ii) Whether there is any good reason for the application for extension of time to be granted.
The procedure and requirements in relation to application for leave for Judicial Review are governed by Rule 56.6 of the Supreme Court of Jamaica Civil Procedure Rules (herein after refer to as the Rules). Rule 56.6 read as follow:
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(1) “An application for leave to apply for judicial review must be made promptly and in any event within three months from the date when grounds for the application first arose”
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(2) However the court may extend the time if good reason for doing so is shown
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(3) Where leave is sought to apply for an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date on which grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding
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(4) Paragraphs (1) to (3) are without prejudice to any time limits imposed by any enactment.
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(5) When considering whether to refuse leave or to grant relief because of delay the judge must consider whether the granting of leave or relief would be likely to -
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(a) cause substantial hardship to or substantially prejudice the rights of any person; or
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(b) be detrimental to good administration
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Counsel for the Applicant asserts that the grounds for the action arose at the date of the letter of the 22 nd of February 2016. That is the date of the letter from the Board indicating the specified period for which the Applicant was appointed to act. However, this position is resisted by counsel for the Respondent. She contends that the impugned decision was first communicated by the letter of Mr. Robinson the then principal of the John Mills Primary and Junior High School. She made reference to the letter dated April 24, 2015. Therefore, she insists that the grounds for the application arose on the 24th of April 2015.
I am grateful to counsel for both sides for the number of authorities which they have presented for my consideration. I have reviewed all and while in the interest of time I will not make specific reference to all I will apply the principles derived from each where applicable in my analysis of the instant application.
In accordance with Rule 56.6.1 an application for leave for Judicial Review must be made promptly and in any event within three months from the date when the grounds for the application first arose. A proper reading of this Rule indicates that the application must be made as quickly as possible after the date on which the grounds for the application arose, and in any event should not be made beyond three months. Therefore the first matter a court must address in an application for leave for Judicial Review is whether in all the circumstances the application was made promptly even if it was made within the three months. Additionally, the court will have to determine when the grounds for the action arose in order to determine:
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(a) Whether the application was made promptly
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(b) Whether the application was made out of time.
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(c) Where the application was made after the three months from the time the grounds for the application arose whether there is any good reason to grant the extension of time.
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