Minister of National Security and Attorney General v Herbert Hamilton

• Jurisdiction: Jamaica
• Judge: Morrison P,McDonald-Bishop JA,P Williams JA
• Judgment Date: 29 October 2015
• Neutral Citation: JM 2015 CA 112
• Docket Number: SUPREME COURT CIVIL APPEAL NO 31/2015
• Court: Court of Appeal (Jamaica)
• Date: 29 October 2015

Between

Minister of National Security

1 ^st Appellant

and

Attorney General

2 ^nd Appellant

and

Herbert Hamilton

Respondent

[2015] JMCA Civ 54

The Hon Mr Justice Morrison P (AG)

The Hon Mrs Justice Mcdonald-Bishop JA

The Hon Miss Justice Williams JA (AG)

SUPREME COURT CIVIL APPEAL NO 31/2015

JAMAICA

IN THE COURT OF APPEAL

CIVIL PROCEDURE - Claim - Order sought to strike out claim - Whether the claim is one seeking to enforce a public law right - Whether the judge ought to have proceeded by way of judicial review - Civil Procedure Rules 2002, Part 56 - Whether the claim is one seeking to merely enforce a private law remedy for payment of unpaid portion of contract - Court ruled that merely private law remedy being sought as such claim properly instituted - Appeal to strike our claim dismissed

Written submissions on behalf of the appellants received from the Director of State Proceedings

Written Submissions on behalf of the respondent received from Lightbourne & Hamilton

PROCEDURAL APPEAL

(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules, 2002)

Morrison P (AG)

Introduction

1 This is an appeal from an order made by F Williams J (as he then was) on 10 March 2015. By that order, the learned judge refused the appellants' application to strike out the fixed date claim form filed against them by the respondent on 17 April 2014. In this appeal (brought by leave of the judge), the appellants contend that F Williams J erred in law, in that he failed to appreciate that, in substance, the respondent's claim seeks to enforce a public law right and that he ought therefore to have proceeded by way of the procedure for judicial review set out in Part 56 of the Civil Procedure Rules (CPR). Accordingly, the appellants seek an order from this court striking out the claim, with costs.

The background

2 The matter arises in this way. By letter dated 12 July 2010, the respondent was appointed by the 1 ^st appellant (the minister) as a member of the Firearms Licensing Authority (the authority). The term of the appointment was stated to be three years, with effect from 12 July 2010, at an annual salary of $910,500.00 per annum. Then, by a subsequent letter dated 1 May 2012, the minister wrote to the respondent as follows:

‘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.’

It is common ground between the parties that this was a letter terminating the respondent's appointment as a member of the authority.

3 The authority is established pursuant to section 26A(1) of the Firearms Act (the Act). Section 26A(2) of the Act provides that the provisions of the Third Schedule shall have effect as to the constitution of the authority; and section 2 of the Third Schedule provides that members of the authority shall be appointed by the minister in writing, ‘and shall, subject to the provisions of this Schedule, hold office for a period of three years’.

4 After identifying the parties to the action, the fixed date claim form states the following (at paragraph 4):

‘4. The Claimant's claim is for loss of remuneration arising out of a breach of the Claimant's fixed term contract of employment wherein by letter dated 12 ^th July 2010 the First Defendant appointed the Claimant a member of the Firearm Licensing Authority for the statutory period of three years with effect from 12 ^th day of July, 2010 at a remuneration of Nine Hundred and Ten Thousand, Five Hundred Dollars ($910,500.00) per annum which contract was breached by the First Defendant by letter dated the 1 ^st day of May, 2012 terminating the Claimant's appointment as a member of the Firearm Licensing Authority.’

5 On this basis, the respondent claims (i) a declaration that he is entitled to the sum $1,138,125.00, ‘representing loss of remuneration for fifteen (15) months being the unexpired period of the Claimant's Contract of employment’; (ii) interest at the rate of 12% per annum; and (iii) an order for payment by the minister of the said sum of $1,138,125.00, plus interest and costs.

6 In his affidavit sworn to on 17 April 2014 and filed in support of the fixed date claim form, the respondent stated 1 , among other things, that ‘in breach of the [Act] and the said letter of appointment, the [minister] by letter dated 1 ^st day of May 2012, wrongfully terminated my appointment’. Further 2, that ‘[b]y reason of the wrongful termination of my statutory appointment I have been deprived of the salary I would otherwise have earned during the continuance of my said statutory term of appointment and I have suffered loss and damage’.

7 The first hearing of the fixed date claim form was duly fixed for hearing on 3 February 2015. But, by notice of application for court orders filed on 2 February 2015, the appellants sought an order striking out the claim. The grounds of the application were set out in the notice 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 [sic] the application for such leave.’

The judge's ruling

8 After a hearing on 3 February 2015, F Williams J, in a written judgment given on 10 March 2015, declined to grant the appellants' strike-out application. The learned judge considered that, firstly, the power to strike out, whether pursuant to the inherent jurisdiction of the court or the provisions of rule 26.3 of the CPR, ‘is one that should be used sparingly; and only in the clearest cases’ 3; secondly, applying the decisions of the Court of Appeal in Sykes v Minister of National Security and Justice and others4 ( Sykes ) and of the Privy Council in Swann v Attorney General of the Turks & Caicos Islands5 ( Swann ), rather than involving a ‘purely public-law right … this matter really involves an attempt to assert a private-law right’ 6; and thirdly, the respondent had therefore adopted the appropriate procedure in the circumstances. The learned judge then went on to make the necessary case management orders and the fixed date claim form is now fixed for hearing on 20 November 2015.

The appeal

9 The appellants challenge the learned judge's decision on grounds which substantially rehearse the grounds on which the strike-out application was made:

• ‘i. The learned judge erred in law failing to appreciate that in bringing the claim for declaratory relief and damages, the claimant is in substance seeking to impugn the Minister's decision to terminate his appointment to the Board of the Firearm Licensing Authority.

• ii. The learned judge erred in failing to find that in seeking to impugn the decision of the Minister to terminate his statutory appointment, the claimant is in effect seeking to enforce a public law right and that by bringing the claim as an ordinary action in private law, the claimant is seeking to circumvent the requirements of the judicial review procedure.

• iii. The learned judge erred and/or misdirected himself in applying the cases of Sykes v Minister of National Security and Justice and others and Swann v Attorney General of the Turks and Caicos Islands to the instant case in circumstances where the factual premise is so different as to render any underlying principle inapplicable.’

10 In their written submissions filled on 31 March 2015, the appellants submit firstly that, upon consideration of the respondent's statement of case, it is clear that the basis on which the claim for salary is being made is that the termination of the respondent's appointment as a member of the authority was a wrongful act by the minister, and in breach of the mandatory provisions of the Act. Therefore, it is submitted, for the court to declare that the remuneration claimed is due, it will be necessary to consider whether the minister's action in terminating the appointment was wrongful. This, the appellants contend, ‘is plainly a matter of administrative law’.

11 Next, on the authority of the well-known decision of the House of Lords in O'Reilly v Mackman7 ( O'Reilly ), the appellants submit that since the respondent's appointment and his entitlement under the Act to remain a member of the authority are issues of public law, he ought properly to have brought his claim by way of an application for judicial review. In that event, the respondent would have been subject to the requirements which must be satisfied as a precondition to the grant of leave to apply for judicial review, including the requirement that the claim be commenced promptly.

12 And lastly, the appellants submit that the learned judge erred in his reliance on the cases of Sykes and Swann, in that the circumstances of both cases are ‘far different from the instant case’. In this case, it is submitted, unlike in Sykes, Swann and other cases, such as Roy v Kensington and Chelsea and Westminster Family Practitioner Committee8 ( Roy ), the respondent's claim depends exclusively on a public...