Grant's Welding and Machine Shop Ltd v The Firearm Licencing Authority

• Jurisdiction: Jamaica
• Judge: T. Mott Tulloch-Reid
• Judgment Date: 15 January 2020
• Date: 15 January 2020
• Docket Number: CLAIM NO. 2018 HCV 03371
• Court: Supreme Court (Jamaica)

[2020] JMSC Civ 4

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. 2018 HCV 03371

CLAIM NO. 2018 HCV 00370

Between

Grant's Welding and Machine Shop Ltd

Claimant

and

The Firearm Licencing Authority

1 ^st Defendant

and

The Attorney General of Jamaica

2 ^nd Defendant

Heard Together with

Between

Evan Grant

1 ^st Claimant

and

Grant's Welding and Machine Shop Ltd

2 ^nd Claimant

and

Shane Dalling

1 ^st Defendant

and

Firearm Licensing Authority

2 ^nd Defendant

and

The Attorney General of Jamaica

3 ^rd Defendant

and

Nationwide News Network Limited

4 ^th Defendant

and

Trend Media Limited T/A Loop News

5 ^th Defendant

and

Radio Jamaica Limited

6 ^th Defendant

Mr Aon Stewart instructed by Knight Junor Samuels Attorneys-at-law for the Claimant/Respondent

Ms Carla Thomas, Ms Christine McNeil and Mr Carson Hamilton instructed by the Director of State Proceedings Attorney-at-law for the 1 ^st and 2 ^nd Defendants/Applicants in Claim No 2018 HCV 03371 and for the 1 ^st, 2 ^nd and 3 ^rd Defendants/Applicants in the Claim No 2018 HCV 00370

Ms Elizabeth Salmon Attorney-at-law for the 4 ^th Defendant

Civil Procedure – Application for permission to file and serve defence out of time — application for 3rd Defendant to be removed as a party in the Claim – CPR 10.3(5) and CPR 21 and CPR 22 – Whether the Firearm Licensing Authority has legal personality — Whether the Firearm Licensing Authority is a servant and/or agent of the Crown

IN CHAMBERS

Master T. Mott Tulloch-Reid

1 In both applications, the Attorney General of Jamaica has applied to the court for three things:

• (a) The removal of the Firearms Licencing Authority (“FLA”) as a party in the claim because it is not a proper party;

• (b) The removal of the Attorney General of Jamaica as a party in both claims; and

• (c) Permission to file its Defence out of time if The Attorney General is not removed as a party in both claims.

2 I note that the Director of State Proceedings is representing the FLA in making the applications, albeit that one limb of their argument is that the FLA is not a servant or agent of the Crown. In addition, the Acknowledgment of Service and Amended Acknowledgment of Service filed in each claim by the Director of State Proceedings, indicate that the documents are filed by the Director of State Proceedings, attorney-at-law on behalf of the FLA and the Attorney General for Jamaica. To then raise an argument in which it is trying to separate the FLA from the Attorney General for Jamaica is somewhat peculiar.

3 In the submissions filed by the attorneys-at-law for the Attorney General of Jamaica with respect to Claim # 2018HCV 03371, it was stated that the order sought with respect to striking out the claim against the Attorney General was not being pursued. This was a sensible course of action since the Amended Particulars of Claim filed on October 22, 2018 alleges that servants of the Crown, including members of the Jamaica Constabulary Force and/or Island Special Constabulary Force were present on site during the occurrence of the incident and as such in those circumstances, the Attorney General for Jamaica is properly named as a party in claim 2018HCV03371.

4 I am therefore left with the task of making two determinations:

• (a) Whether the FLA is a party which can sue or be sued in its own name in both claims; and

• (b) Whether the FLA is a servant and/or agent of the Crown so that for the purposes of Claim number 2018HCV03370 the Attorney General of Jamaica has been properly named as a party.

Whether the FLA is a party that can sue or be sued in its own name

5 The Claimants argue that the FLA is a party that can sue or be sued in its own name. Mr Stewart invited me to consider paragraphs 6, 7 and 8 of his submissions filed on October 9, 2019 in which he raised the whole issue of statutory interpretation and the requirement for judges to give words their ordinary meaning when interpreting statute. He quotes from the dicta of the Brooks JA in the case of Jamaica Public Service Company Limited v Dennis Meadows and ors; The Attorney General of Jamaica v Dennis Meadows [2015] JMCA Civ 1 emphasing in particular the following:

“The judge may read words which he considers to be necessarily implied by words which are already in the statute; and he has a limited power to add to, alter or ignore statutory words in order to prevent a provision from being unintelligible, absurd or totally unreasonable, unworkable, or totally irreconcilable with the rest of the statute.”

6 Mr Stewart goes on to say that where Parliament intended to establish a body corporate the statute that governed the body expressly referred to the body as being a body corporate and made it subject to Section 28 of the Interpretation Act which allows for such bodies to sue or be sued in their own name. See for example section 3(1) of the Transport Authority Act which reads as follows:

“There is hereby established a body to be called the Establishment of Transport Authority which shall be a body corporate, to which the provisions of section 28 of the Interpretation Act shall apply.

7 I have perused the Firearms Act and I have found no reference to the FLA as being a body corporate. Section 26(1)(A) of the Firearms Act simply reads

“There is hereby established for the purposes of this Act, a body known as the Firearm Licensing Authority.”

It appears then, that the FLA is a creature of statute, a statutory body set up by an Act of Parliament for the purpose of considering issues related to the regulation of firearm licences, certificates or permits. There is nothing in the Act or the Regulations which gives the FLA the power to sue or be sued in its own its own name. For the purposes of comparison, I considered the Southern Regional Establishment Health Authority, another creature of statute. The Southern Regional Establishment Health Authority was created by section 3 of the National Health Services Regulations. Section 3 provides as follows:

“There is hereby established a body to be called the Southern Regional Establishment Health Authority which shall be a body corporate with perpetual succession and a common seal and with power to acquire, hold and dispose of property, to enter into contracts, to sue and be sued in its said name and to do all things necessary for the purposes of this Scheme: Provided that such power may only be exercised with the approval of the Minister.

No similar wording appears in the Firearms Act or the Firearms Regulations.

8 I am mindful of the fact that Mr Stewart has directed my attention to the power of the FLA to summon witnesses, call for and examine documents and do all such other things as it considers necessary or expedient for the purposes of carrying out its functions under this Act (section 26B(2) of the Firearms Act refers. I do not however, form the view that those powers are akin to the powers of the Assets Recovery Agency in the Andrew Hamilton case. In that case, the Assets Recovery Agency was given certain powers by the Proceeds of Crimes Act which powers included “ the power to apply or initiate court proceedings for forfeiture orders, restraint orders, civil recovery orders and to take and defend proceedings in respect of property vested in it as a result of a recovery order (paragraph 56 of the judgment of Morrison JA, as he then was, refers). Morrison JA then went on to say that those powers were

“… clear indicators that Parliament must necessarily have intended that it should enjoy legal status for these purposes.”

9 I do not believe that in giving the FLA the power to call for documents and summon witnesses, Parliament intended to endow the FLA with legal personality. I believe it was simply to carry out in particular its function as set out in section 26B(1)(e) of the statute, which is to “ receive and investigate any complaint regarding the breach of a firearm licence, certificate or permit.”

10 I agree with Mr Stewart when he says that where the words of a statute are unambiguous there is no reason to go outside of its specific wording. The Firearms Act is clear. It has not created a body corporate or a statutory corporation in its establishment of the FLA and as such it would appear then the FLA is not a statutory corporation (like the Southern Regional Establishment Health Authority or a body corporation (like the Transport Board Authority) which can sue or be sued in its own name. It appears to be a statutory body which cannot sue or be sued in its own name.

Whether the FLA is a servant and/or agent of the Crown

11 What or who is a servant and/or agent? I will start from the general position. According to Black's Law Dictionary, 9 ^th edition, a servant is

“a person who is employed by another to do work under the control and direction of the employer”.

An agent is defined as

“one who is authorised to act for or in the place of another”.

The question then is,

If the answer to any of these two questions is yes, then the Attorney General is properly named as a party in the claim. If the answer is no, then she is not.

• a. is the FLA under the control of the Crown? or

• b. is the FLA acting on behalf of the Crown?

12 Counsel for The Attorney General of Jamaica says the FLA is neither a servant nor agent of the Crown. She argues that the FLA is not under the control of the Minister. This in spite of the fact that the Minister appoints the members of the Authority (see section 2 of the Third Schedule), determines the remuneration its members are paid (see section 6 of the Third Schedule) and is funded partly by monies determined by Parliament (see section 11 of the Third Schedule). In support of her position, I was referred to the case of Metropolitan Meat Industry Board v Sheedy and ors a decision of the Privy Council reported at [1929] AC 899. Ms Thomas, argues that in that case, the Board made its own decisions with very...