Herbert A Hamilton v Minister of National Security and Another

• Jurisdiction: Jamaica
• Judge: F. Williams, J
• Judgment Date: 10 March 2015
• Neutral Citation: [2015] JMSC Civil 39
• Docket Number: CLAIM NO. HCV 01903 OF 2014
• Court: Supreme Court (Jamaica)
• Date: 10 March 2015

[2015] JMSC Civil 39

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

Coram: F. Williams, J.

CLAIM NO. HCV 01903 OF 2014

Between

Herbert A. Hamilton

Claimant

and

Minister of National Security

1st Defendant

and

Attorney-General of Jamaica

2nd Defendant

Ms. Carlene Larmond instructed by the Director of State Proceedings for the defendants/applicants.

Ms. Dorothy Lightbourne , Q.C, instructed by Lightbourne & Hamilton for the claimant/respondent.

Application to Strike Out Claim — Whether Claim Should Have Been Begun as an Application for Judicial Review — Appointment to Board of Statutory Body — Termination before Expiry of Fixed Term — Claim for Remuneration.

IN CHAMBERS

Background

1 This matter comes before me both as the first hearing of the fixed-date claim form dated April 17, 2014; and as an application to strike out the claim on the basis that the claim has been begun by an inappropriate mechanism.

The Claim

2 The claim is being brought by the claimant as a former appointee to the board of the Firearm Licensing Authority (the FLA), a statutory body, consequent on the termination of the said appointment before the term for which he was appointed had expired.

3 By letter dated July 12, 2010 the then Minister of National Security, Senator the Hon. Dwight Nelson, had appointed the claimant to the Authority with effect from the said date, for a period of three years. The letter also indicated that he was to have been paid for his service at the rate of $910,500 per annum and a casual mileage rate of $35 per kilometer to attend board meetings.

4 By letter dated May 1, 2012 the claimant's appointment to the said Authority was terminated in the following terms:

‘Dear Mr. Hamilton:

I wish to express sincere appreciation for the service you rendered as a Member of the Firearm Licensing Authority.

Please accept this Ministry's kindest regards and best wishes for the future.

Peter Bunting, MP Minister’.

5 These are the terms of the relief (indicated in the fixed-date claim form), that the claimant seeks:

‘1. A declaration that the claimant is entitled to the sum of One Million, One Hundred and Thirty-eight Thousand One Hundred and Twenty-five Dollars ($1,138,125.00) representing loss of remuneration for Fifteen (15) months being the unexpired period of the Claimant's Contract of employment as follows:

15 months @ monthly salary of

$75,875.00 per month = $1,138,125.00

2. Interest thereon at the rate of twelve (12%) per annum.

3. An order that the First Defendant pay the Claimant the sum of One Million One Hundred and Thirty-eight Thousand One Hundred and Twenty-five Dollars ($1,138,125.00) with interest thereon, and costs of these proceedings.’

The Defendants' Application to Strike Out

6 The application to strike out the claim was made with a view to obtaining the following order:

‘1. The Fixed Date Claim Form and Affidavit of Herbert Hamilton in Support of Fixed Date Claim are struck out for disclosing no reasonable grounds for bringing the claim.’

7 The grounds on which the application is based were stated in the written notice of application dated February 2, 2015 as follows:

‘1. The facts supporting the claim are such that the main relief is for an administrative order, specifically, for judicial review for an order for certiorari to quash the Minister's decision to terminate the appointment of the Claimant to the Board of the Firearm Licensing Authority (FLA).

2. The appointment, and removal, of an individual to the Board of the FLA are administrative actions exercised by a Minister pursuant to the discretionary power vested in him under statute. Any challenge to the Minister's decision to remove the Claimant is one that ought properly to have been the subject of judicial review proceedings.

3. The claim for declaratory relief and damages, without an accompanying relief by way of judicial review to impugn the Minister's decision, is an abuse of process in that it seeks to circumvent the requirements of:

• i. leave to commence a claim for judicial review; and

• ii. the time limit attendant the application for such leave.’

Summary of the Defendants' Arguments

8 On behalf of the defendants, it was not disputed that the claimant was appointed to and removed from the board of the FLA on the dates he avers. Their challenge to the claim is predicated on the following bases:

• a. any challenge to the Minister's decision to remove him is one that should have been brought by way of judicial review.

• b. the claim for declaratory relief and damages, without an accompanying claim by judicial review to impugn the Minister's decision is an abuse of process that seeks to circumvent the requirements of:

  • i. leave to apply for judicial review;

  • ii. compliance with the time limit for a judicial review application.

• c. There is no contract before the court.

• d. Although the claimant's claim is based on an alleged breach of a statutory duty, the duty on which he relies has not been identified.

• e. The entire case as framed is contrary to proper procedure and the reliefs sought cannot be obtained.

Summary of Arguments for the Claimant

9 On behalf of the claimant it was submitted that the claim is in compliance with Rule 56.9 of the Civil Procedure Rules (CPR). This is so because, as the rule requires, this claim (being one for judicial review) was begun by way of fixed-date claim form; and supported by an affidavit.

10 Additionally, it was submitted that the appointment to the board for a three-year period, pursuant to section 26a of the Act is a mandatory period and that the Minister has no discretionary power to determine the said fixed period of appointment, except with cause; and the claimant was not terminated for cause.

11 Further, Ms. Lightbourne submitted that judicial review is a remedy of last resort in situations in which there are no other remedies available (citing the case of R (on the application of Lim and another) v Secretary of State for the Home Department (2007) EWCA Civ 773 per Lord Justice Sedley at page 773). This is the particular dictum on which she relied:

‘It is well established…that judicial review is a remedy of last resort, so that where a suitable statutory appeal is available, the court will exercise its discretion in all but exceptional cases by declining to entertain an application for judicial review.’

12 Consequently, it was submitted, judicial review is not an appropriate remedy in this case, as the claimant is seeking a private-law remedy and not a public-law remedy; and there are no other remedies available to him.

The Court's Power to Strike Out

13 The court's power to strike out is well established and of some standing. Apart from the power to strike out flowing from its inherent jurisdiction, the court also has the power to strike out pursuant to the provisions of the Civil Procedure Rules (CPR), in particular rule 26.3, which reads thus:

‘26.3 (1) In addition to any other powers under these Rules, the court may strike out a statement of case or part of a statement of case if it appears to the court –

(a) that there has been a failure to comply with a rule or practice direction or with an order or direction given by the court in the proceedings;

(b) that the statement of case or the part to be struck out is an abuse of the process of the court or is likely to obstruct the just disposal of the proceedings;

(c) that the statement of case or the part to be struck out discloses no reasonable grounds for bringing or defending a claim; or

(d) that the statement of case or the part to be struck out is prolix or does not comply with the requirements of Parts 8 or 10.’

14 This application, it appears, is being made pursuant to paragraph(s) (b) and/or –...