Lafette Edgehill and Others v Greg Christie

• Jurisdiction: Jamaica
• Judge: Panton P,Harris JA,Phillips JA
• Judgment Date: 30 March 2012
• Neutral Citation: [2012] JMCA Civ 16
• Court: Court of Appeal (Jamaica)
• Docket Number: CIVIL NOS 73, 74 & 75/2010
• Date: 30 March 2012

[2012] JMCA Civ 16

JAMAICA

IN THE COURT OF APPEAL SUPREME COURT

Before:

The Hon Mr Justice Panton P

The Hon Mrs Justice Harris JA

The Hon Miss Justice Phillips JA

CIVIL NOS 73, 74 & 75/2010

Between

Lafette Edgehill

Dwight Reid

Donnette Spence

Appellants

and

Greg Christie (Contractor-general of Jamaica)

Respondent

JUDICIAL REVIEW - Jurisdiction - Whether there was jurisdiction to hear application for judicial review - Contractor General Act, s. 13 - CPR 2002, Rule 56

Panton P

1 On 29 July 2011, we dismissed the appeals herein, ordered costs to the respondent to be agreed or taxed and promised to put our reasons in writing. This we now do.

The nature of the appeals

2 These appeals were consolidated on 26 October 2010. The appellants were challenging the judgment of Rattray J who ruled on 30 April 2010 that there was no jurisdiction to allow him to proceed to hear their claim for judicial review of the action of the Contractor-General in terminating their contracts of employment. Leave had been granted for the appellants to apply for judicial review, but Rattray J held that they had not complied with the conditions of the grant of leave and so that leave had lapsed. There is a counter notice of appeal, details of which will be referred to later.

The appellants' terms of employment

3 The appellants were employed on identical contractual terms, save for the amount of their emoluments, to the Contractor-General who under section 13 of the Contractor-General's Act has the power to appoint and employ officers and agents for the purposes of the Act. These persons are employed on terms and conditions approved by the Commission constituted under subsection (2) of the Act. Clause 9 of the contract provides that the Contractor-General ‘may at any time terminate the engagement of the Employee by giving three (3) months notice in writing or by giving three (3) months' salary in lieu of notice’. The clause also provides that the employee may at any time terminate the engagement by giving three months notice in writing.

The termination of the employment

4 On 30 April 2009, the Contractor-General terminated the services of the appellants. He held separate meetings with each appellant and handed each a letter stating the reasons for the termination. The circumstances in brief are that a contractorhad approached an employee of the office of the Contractor-General and offered to pay a sum of money to ensure being listed as one of the approved contractors for the award of government contracts. This approach was communicated by the employee to the three appellants who failed to report this unlawful act to the Contractor-General for criminal prosecution to be undertaken. The appellants were the principal officers of the office of the Contractor-General's Technical Services Department who were responsible for ensuring the integrity of, and probity in, the National Contracts Commission's contractor application, evaluation, verification, grading, and/or registration processes. In the light of the situation, the Contractor-General advised the appellants that he had lost confidence and/or trust in them.

5 The appellants were further advised that in keeping with their terms of employment, they would be paid three months salary in lieu of notice together with all other sums properly due to them. The appellants were permitted to remove their personal items and thereafter were escorted from the premises. The suddenness of the separation fuelled rumours which were not helped by the fact that a report was made to the police and a press release issued. Of course, the Contractor-General cannot be blamed for bringing the police into the picture. However, the appellants found the situation embarrassingly unjustified and so headed to the courts, seeking judicial review of the action of the Contractor-General.

The judge's ruling

6 In ruling that he had no jurisdiction to entertain the application for judicial review, Rattray J examined the provisions of rule 56 of the Civil Procedure Rules, and concluded that the appellants had failed to fulfil the conditions of the grant of leave. He relied on a judgment of this court to bolster his position:Golding v Simpson-Miller (SCCA No 3/2008 delivered 11 April 2008). He also referred to R v The Commissioner of the Taxpayers Audit and Assessment Department, Claim No. HCV-5719/2006 a decision of the Supreme Court, and Costellow v Somerset County Council [1993] 1 WLR 256 [1993] 1 WLR 256.

7 Rule 56.3(1) of the Civil Procedure Rules requires a person wishing to apply for judicial review to first obtain leave to do so. An application for leave may be made without notice, and these applications were so made. Each was verified by evidence on affidavit including a statement of the facts relied on. The applications were heard and granted by Donald McIntosh J on 3 July 2009. Rule 56.4 (11) provides that on granting leave the judge must direct when the first hearing should take place. That was, apparently, not done in this case. Rule 56.4 (12) specifies that leave is conditional on the applicant making a claim for judicial review within 14 days of receipt of the order granting leave. It was on the basis of non-compliance with this rule that Rattray J denied that he had jurisdiction to hear the application.

8 The factual situation placed before Rattray J reveals that when the application was made for leave to apply for judicial review, the applicants had also filed fixed dateclaims in form 2. Having succeeded in getting leave to apply for judicial review, they were then required to make their claims within 14 days of the receipt of the order granting leave. The attorneys-at-law assumed that the forms filed on 3 June 2009, would have been sufficient to fulfil the terms of the order made one month later on 3 July 2009. The appellants' attorneys-at-law attended at the registry of the Supreme Court and obtained a date for the hearing of the fixed date claim. Subsequently, that date was changed to an earlier one. The fixed date claim forms were then served on the respondent who filed an acknowledgment of service and a notice of intention to rely on the affidavit of Mr Craig Beresford, senior director in the office of the Contractor-General, filed on 21 August 2009.

Grounds of appeal

9 The appellants relied on the following grounds of appeal:

• ‘a. That the judgment unreasonable having regard to the evidence/circumstances.

• b. Where at the time of the grant of an application for leave to appeal for Judicial review, there was already filed a Fixed Date Claim Form without the date and time for hearing stated therein, the issue of the Claim form, within 14 days of the date of the Order granting leave, satisfies Rule 56(4)(12) of the Civil Procedure Rules, a provision requiring the applicant making a claim for Judicial review.

• c. That the learned judge fell into error when he found that “In the circumstances where no claim for judicial review has been filed within the time prescribed by the rules the leave ofthe court lapsed…” for the following reasons:

  • (i) Rule 56(4)(12) speaks to making a claim for judicial review as distinct from filing a claim

  • (ii) Rule 56.4(11) accommodates or presupposes the filing of the claim form before the granting of the leave

  • (iii) The definition of a Fixed Date Claim Form in Rule 2.4 implies two distinct stages in the filing of the document and issuing of the document. It is only after it is issued that it satisfies the definition of a Fixed Date Claim Form.

  • (iv) Rule 56.9(6) speaks to the issuing of the Claim Form Rule 11.5(3) speaks to an Application made before a claim has been issued.

• d. And/or in the alternative, the learned trial judge ought to have invoked the provisions contained in part 1 (The Overriding Objective) and/or Rule 26.9 of the Civil Procedure Rules 2002, thereby permitting the case to proceed having regard to all the circumstances.’

The counter notice of appeal

10 In the light of the view I have taken of the appeals, it is appropriate at this time to set out the counter-notice of appeal which sets out additional grounds on which the judgment may be upheld, according to the respondent. These are as follows:

‘1. The claims brought have been correctly struck out by the Learned Judge as there are alternative forms of redress available to the Appellants;

2. The claims brought by the Appellants are essentially claims for wrongful dismissal and ought to be properly dealt with in the realm of private law;

3. The claims brought do not concern and/or raise any issues of public law as it primarily concerns the contractual rights of the Appellants;

4. The procedures applicable in relation to private law proceedings do not apply to Judicial Review Proceedings.’

11 The arguments advanced in support of each appeal were similar in every respect. It was submitted that the filing of the claim form in the registry of the Supreme Court at the same time as the application for the order seeking leave for judicial review, was not detrimental to the appellants' cause as that act could not, without more, commence or constitute an application for judicial review. Having obtained leave, and having then entered the date for the first hearing, that became the time when it should be regarded that the application for judicial review was made.

12 The appellants argued further, that there is a difference between making a claim for judicial review and filing a claim. Rule 56.4(11), they said, accommodates the filing of the claim form before the granting of leave. In any event, they said, thelearned judge ought to have put matters right by considering the overriding objective contained in rule 1 of the Civil Procedure Rules. Fairness, they said, required that the judge exercise his discretion in favour of not driving the appellants from the seat of justice.

13 I sympathize somewhat with the...