Loyal Haylett v Strata Appeals Tribunal
| Jurisdiction | Jamaica |
| Judge | Pettigrew-Collins J |
| Judgment Date | 01 April 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. SU 2022 CV 00213 |
and
[2022] JMSC Civ. 40
CLAIM NO. SU 2022 CV 00213
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Application for leave to apply for Judicial Review - Test for granting leave — Whether application prompt — Whether threshold met.
Miss Jacqueline Cummings instructed by Cummings Archer and Co for the applicant
Mr. Garth McBean instructed by Garth McBean and Co for the first respondent
Mr. Lemar Neale instructed by Nealex for the second respondent
The applicant describes himself as a businessman who resides in the parish of St. James. He was also the proprietor of unit B22 at Sand Castles, Ocho Rios in the parish of St. Ann, which is part of Proprietor Strata Plan 401. He has since sold his interest in the unit.
The first defendant is a tribunal established under the Registration of Strata Titles Act to hear appeals of aggrieved persons against decisions of the Commission of Strata Corporation (the Commission). The second respondent is a strata corporation incorporated under the Registration of Strata Titles Act and is the complex known as Sand Castles, located at Main Street, Ocho Rios in the parish of St. Ann.
The genesis of this application is the decision of the strata corporation to impose a cess on all proprietors of the strata in order to fund certain projects which it has not been disputed, involved the improvement, repair and upkeep of common areas. Controversy surrounds whether the decision was taken at an Annual General Meeting (AGM) of the proprietors held on the 8 th of December 2018 and whether there was a quorum present at the meeting when the decision was allegedly taken.
This application before the court is for leave to apply for judicial review. The Notice of Application was filed on the 25 th of January 2022. There is no question that the application was filed out of time, therefore the applicant has also sought an extension of time for making the application.
The applicant filed an Affidavit of Urgency in Support of the Notice of Application for Leave to Apply for Judicial Review. He exhibited to that affidavit, his proposed Fixed Date Claim Form (FDCF) as well as an affidavit in support of that Fixed Date Claim Form. I shall refer to this affidavit as the proposed affidavit. He states that it is on the proposed FDCF and proposed affidavit that he relies to ground the application. I will address this manner of treating with the application in due course, as it is also a source of complaint by the respondents.
The orders sought in the application are:
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1. That the time for making this application for leave to apply for judicial review be extended to the date hereof.
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2. The applicant be granted leave to apply for judicial review and to file a Fixed Date Claim Form seeking the following remedies:
(a) An application for leave for judicial review of the decision of the first defendant made on the 15 th of October 2021 for the following orders:
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i. A declaration that the first defendant acted ultra vires and/or illegally and/or unlawfully and/or irrationally in dismissing the appeal of the claimant in their decision made on the 15 th of October 2021.
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ii. An order of certiorari to quash the decision of the first defendant made on 15 th of October 2021.
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iii. A declaration that on the proper interpretation of Section 5A(2)(b) of the Registration of Strata Titles Act and Clause 36 of the by-laws of the second defendant it does not provide for interest to be charged for capital expenditure imposed on the proprietors in the form of a one-time payment or cess.
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iv. A declaration that the Executive Committee of the second defendant on 8 th of December 2019, and thereafter, had no locus standi to impose a cess upon its proprietors as their election was ruled to be null and void and of no effect by the Strata Commission in a ruling dated October 28, 2021 and the said cess was unlawfully imposed on the proprietors and the claimants.
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In addition to the above orders, the applicant also sought an interim injunction to restrain the strata corporation from enforcing the collection of the cess until the determination of the matter.
The grounds of the application were also set out. The grounds relied on are based on the provisions of Rule 56.3(1), 56.6(2) and 56.10. Further, that the applicant is directly impacted by the decision of the first respondent and that there is no time limit for bringing the application.
Written submissions were filed by all parties and same were supplemented by oral submissions. I shall not reproduce the submissions in full but will make reference to them where I find it necessary to do so.
The two main issues are whether an extension of time should be granted for the applicant to make his application for leave and whether the applicant has an arguable ground for judicial review with a realistic prospect of success. In dealing with the second issue, I shall examine each proposed ground in deciding whether the applicant has an arguable case.
Rule 56.2 of the Civil Procedure Rules (CPR) provides that:
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1. An application for judicial review may be made by any person, group or body which has sufficient interest in the subject matter of the application.
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2. This includes:
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(a) Any person who has been adversely affected by the decision which is the subject of the application.
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Rule 56.3(1) provides that a person wishing to apply for judicial review must first obtain leave. Rule 56.6(1) directs that an application for leave to apply for judicial review must be made promptly and in any event, must be made within three (3) months from the date when the grounds for the application first arose. This court is empowered to extend time to apply for leave for judicial review if good reason is shown for doing so, based on rule 56.6(2).
Sub-rules (3), (4) and (5) of rule 56 provide as follows:
(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 proceedings.
(4) paragraphs (1) to (3) are without prejudice to any time limits imposed by any enactment.
(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 –
(a) cause substantial hardship to or substantially prejudice the rights of any person;
(b) be detrimental to good administration.
The case of Council of Civil Service Unions (CCSU) v Minister of State for the Civil Service [1985] AC 374, HL, is often relied on in examining the bases on which judicial review may be sought. Lord Diplock enumerated the rationale. These are illegality, irrationality and procedural impropriety. At page 410, he said:
By ‘illegality’ as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute by those persons, the judges, by whom the judicial power of the state is exercisable.
By ‘irrationality’ I mean what can now be succinctly referred to as ‘Wednesbury’ unreasonableness Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at it
I have described the third head as ‘procedural impropriety’ rather than a failure to observe the basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules which are expressly laid down in the legislative instrument by which its jurisdiction is conferred even where such failure does not involve any denial of natural justice.
In relation to the concept of lawfulness, Halsbury's Laws of England, Volume 61A, (2018) paragraph 11, provides an explanation:
“The courts will intervene to ensure that the powers of public decision-making bodies are exercised lawfully. Such a body will not act lawfully if it acts ultra vires or outside the limits of its jurisdiction. The term ‘jurisdiction’ has been used by the courts in different senses. A body will lack jurisdiction in the narrow sense if it has no power to adjudicate upon the dispute, or to make the kind of decision or order, in question; it will lack jurisdiction in the wide sense if, having power to adjudicate upon the dispute, it abuses its power, acts in a matter which is procedurally irregular, or, in a Wednesbury sense, unreasonable, or commits any other error of law. In certain exceptional cases, the distinction between errors of law which go to jurisdiction in the narrow sense and other errors of law remain important.
A body which acts without jurisdiction in the narrow or wide sense may also be described as acting outside its powers or ultra vires. If a body arrives at a decision which is within its jurisdiction in the narrow sense, and does not commit any of the errors which go to jurisdiction in the wide sense, the court will not quash its decision on an application for judicial review, even if it considers the decision to be wrong.”
The primary role of the court at the leave stage, is to ensure that actions which are frivolous and vexatious do not go...
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