Inspector Max Marshalleck v The Inspectors' Branch Board of the Police Federation & Superintendent K.A Wade

• Jurisdiction: Jamaica
• Judge: Sykes J (Ag)
• Judgment Date: 09 July 2004
• Judgment citation (vLex): [2004] 7 JJC 0901
• Date: 09 July 2004
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. HCV 1499 OF 2004

BETWEEN

INSPECTOR MAX MARSHALLECK

Claimant

AND

THE INSPECTORS' BRANCH BOARD OF THE POLICE FEDERATION

First Defendant

AND

SUPERINTENDENT K.A. WADE

Second Defendant

IN CHAMBERS

Mr. Seymour Stewart for the claimants

Mrs. Taylor-Wright and Mrs. Kayann Balli for the first defendant

CIVIL PROCEDURE - Fixed date claim form - Application to strike out claim - Whether the election of a number of inspectors of the Police Federation to form the Inspectors Branch Board was null and void - Whether matter should have proceeded by judicial review

Sykes J (Ag)

1 APPLICATION TO STRIKE OUT CLAIM

2 Judicial review or ordinary action that is the question

3 The last seven days have been momentous ones in the life of the Police Federation. On June 30, 2004 Inspector Marshalleck, on behalf of himself and a number of other inspectors of the Jamaica Constabulary Force, launched an action by fixed date claim form in whlch they alleged that Superintendent Wade was negligent and consequently the court should grant the following relief:

• a) a declaration that the election of a number of inspectors to form the Inspectors' Branch Board (IBB) was null and void;

• b) an order that new elections should be held;

• c) the replacement of Superintendent Wade;

• d) such further or other relief as the Court thinks fit

• e) damages; and

• f) costs.

4 When the matter first came before the court on the morning of June 30, 2004 an interim injunction was granted to prevent the executive of the IBB from holding any elections among themselves and to participate in any election to decide who should become the Chairman and General Secretary of the Central Committee of the Police Federation. A very tight time schedule was set whlch resulted in an inter partes hearing, forty eight hours later, on July 2, 2004. I gave judgment on July 7, 2004.

5 This frenetic activity was precipitated by what the claimant alleges is the abdication of responsibity by Superintendent Wade. He, according to the claimants, was responsible for sending out nomination forms to all inspectors in the police force so that they could nominate persons to stand for elections to the IBB. It is alleged that Superintendent Wade did not exercise any independence in the matter but allowed himself to be manipulated by the current post-election office holders who were the incumbents prior to the now disputed elections. Ths manipulation, the claimants say, manifested itself in hs way: he failed to either dstribute or ensure proper dstribution of the nomination forms to all inspectors and consequently many inspectors were deprived of the opportunirv to nominate persons for the various posts in the IBB. To the matter bluntly: the current office holders and Superintendent Wade hatched a plan to minimize any electoral challenge to the pre-electlon office holders.

6 At the inter partes hearing Mrs. Taylor-Wright raised a number of issues. The most important one was procedural. She says that the claimants should have proceeded by way of judicial review under part 56 of the Civil Procedure Rules (CPR) and not by way of ordinary action. Is she correct? I decided that she was and discharged the injunction and struck out the claim as an abuse of process.

7 What is the Police Federation

8 The Federation was created by section 67 of the Constabularv Force Act. It has the specific statutory duty to make representations concerning the welfare of its members. The membership comes from all ranks below the level of Assistant Superintendent. There is nothing to suggest that one applies for membershp of this organisation. Once you are below the rank of Assistant Superintendent, for better or worse, you are a member.

9 The legislation and rules set out in the Second Schedule to the Act state that the Federation shall act through a number of Branch Boards, Central Conferences and a Central Executive. The Branch Boards are groups that are made up of police officers of slrmlar rank. For example the inspectors have their own Branch Board; there is a separate Branch Board for sergeants, Acting Corporals and Constables, together, form yet another Branch Board. Once these Boards are in place then the executive of each board selects the Chairman and General Secretary of the Central Committee of the Police Federation. This Central Committee is the chief organ that administers the affairs of the Federation.

10 Under rule 19 of the Second Schedule to the Constabulary Force Act power is given to each Branch Board and the Central Executive to make regulations governing the mode of election of members of the particular Branch Board. So it is possible for there to have as many rules for elections as they are Branch Boards.

11 Though the claimants have not stated the matter so clearly they are saying that Superintendent Wade Id not follow the required procedure that would have ensured that the election of the IBB executive was properly conducted. In other words he breached the electoral regulations of the IBB. All this sounds like public law and not private law.

12 The cases

13 Mrs. Taylor-Wright relied on O'reilly v Mackman [1983] 2 A.C. 237. That case decided that, as a general rule, where the remedy sought was for rights protected by public law then the person should proceed by way of judlcial review and not by way of ordmary action. This case went all the way to the House of Lords but Mrs. Taylor-Wright relied on the judgment of Lord Denning MR in the Court of Appeal. There is nothing in the judgment of the House that impugned any of the pronouncements of the Master of the Rolls. Lord Denning put the matter more strongly than my summary of the decision. He said at page 254F-G:

Some point was made about the scope of "abuse of process." Reference was made to the opening paragraph of Lord Diplock's speech in Hunter v. Chief Constable of the West Midlands Police [1981] 3 W.L.R. 906, 909. But that should not be regarded as a statutory definition. Suppose a prisoner applied under R.S.C., Ord. 53 for judicial review of the decision of a board of visitors: and the judge refused leave. It would, to my mind, be an abuse of proces of the court for him to start afresh an action at law for a declaration, thereby avoiding the need for leave. It is an abuse for him to ty and avoid the safeguards of Order 53 resorting to an action at law. So also if he deliberately omits to apply under Order 53 so as to avoid the necessity of obtaining leave. Where a good...