National Solid Waste Management Authority v Louie Johnson
| Jurisdiction | Jamaica |
| Judge | Mcdonald-Bishop JA,Sinclair-Haynes JA,F Williams JA |
| Judgment Date | 27 July 2018 |
| Neutral Citation | JM 2018 CA 14 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | APPLICATION NO 182/ 2017 |
| Date | 27 July 2018 |
[2018] JMCA App 22
IN THE COURT OF APPEAL
The Hon Mrs Justice Mcdonald-Bishop JA
The Hon Mrs Justice Sinclair-Haynes JA
The Hon Mr Justice F Williams JA
APPLICATION NO 182/ 2017
And
And
And
Jalil Dabdoub and Mrs Karen Dabdoub-Harris instructed by Dabdoub Dabdoub & Co for the applicant
William Panton and Kristopher Brown instructed by DunnCox for the respondents
Pensions - Pension plan — Interpretation of rules of pension plan.
I have read the draft reasons for judgment of F Williams JA. They accord with my own reasons for agreeing with the decision made on 23 February 2018.
I too have read the reasons for judgment of F Williams JA and agree with his reasoning and conclusion.
This matter came before us as an application, filed on 6 October 2017, for leave to appeal against the judgment of Lindo J (“the learned judge”) dated 22 September 2017. The learned judge, in that judgment, had refused the applicant's application to strike out the respondents' fixed date claim form and had also refused it leave to appeal.
On 23 February 2018, we made the following orders:
“i) The application for permission to appeal the judgment of Lindo J made on 22 September 2017, is refused.
ii) Costs to the respondents to be agreed or taxed.”
These are the reasons we promised the parties for the making of our decision.
The application before us was supported by the affidavit of Ms Tova Hamilton (legal director of the applicant), sworn to on 6 October 2017. The applicant filed its application on the basis (as is required by rule 1.8(7) of the Court of Appeal Rules —“CAR”) that the proposed appeal has a real chance of success. The applicant's main contention was that the learned judge had failed to properly consider the law and evidence before her.
The respondents, being the claimants in the court below, on 16 June 2014, had filed a fixed date claim form. In that claim they sought damages and several declarations from the court against the applicant for personal injuries suffered as a result of smoke and fumes emanating from a fire at the Riverton City Dump. The relief sought in the fixed date claim form was worded in the following manner:
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“1. A Declaration that the Defendant is in breach [of] its statutory duty to effectively manage solid waste at the Riverton City Dump in order to safeguard public health in violation of the of the [sic] National Solid Waste Management Act 2001 and amounted to a breach of the Claimants' constitutional right to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse as guaranteed by section and [sic] 13(3)(l).
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2. A Declaration that the said breach of statutory duty amounted to failure to safeguard public health and in so doing breached the Claimants' rights as guaranteed by section 13(3)(l) of the Charter.
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3. Damages
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4. Special damages-medical and transport expenses pursuant to the attached scheduled and continuing.
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5. Interest on damages
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6. An Order that the costs of this claim be the Claimants' to be taxed if not agreed.
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7. Such further and other relief be given as this Honourable Court deems fit.”
The fixed date claim form was supported by affidavits deposed to by each respondent. (In the case of the 3 rd respondent, Lamoy Malabre, a minor, his affidavit was sworn by his mother and next friend, Ms Phillipa Blake.) The affidavits particularized the personal injuries alleged to have been suffered by the respondents, in addition to exhibiting medical reports.
On 15 July 2016, a consent order was filed by both parties in which they agreed for a date to be fixed for the claim to be heard by the Full Court. Pursuant to that consent order, a hearing date was set by D Palmer J for 8–10 May 2017. However, on 20 February 2017, the applicant filed a notice of application (subsequently amended and re-filed on 20 April 2017) in which it sought the striking out of the respondents' fixed date claim form and requested that the applicant be awarded the costs of the application. Considered at the hearing of the application were affidavits sworn to by Mr Percival Stewart and Mr Kristopher Brown.
The application to strike out the respondents' fixed date claim form was heard on 5 May 2017 and, on 21 June 2017, a written judgment was handed down, which is reported at [2017] JMSC Civ 130. The applicant being dissatisfied with the result of that application, it filed the application before us pursuant to rule 1.8(1) of the CAR.
The applicant has contended that there is merit in the proposed grounds of appeal and that, as such, this court should grant it leave to appeal against the decision of the learned judge. The proposed grounds of appeal are set out below:
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“(i) The Learned Judge erred in law by failing to appreciate that the Claimants/ Respondents failed to demonstrate that the means of legal redress available to them would not be adequate in the circumstances of the Claim.
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(ii) The Learned Judge erred as a matter of law in failing to properly consider the provisions of the Constitution of Jamaica, at Chapter 3, Section 19(4).
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(iii) The Learned Judge erred as a matter of law in failing to appreciate that the evidence failed to disclose any fact or feature which would cause the claim to amount to a Constitutional Claim.
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(iv) The Learned Judge erred in law by failing to appreciate that the Claimants/Respondents had a cause of action in Common Law or by way of Statute for the alleged wrong; and as a result, the matter was not a constitutional claim.
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(v) The Learned Judge erred in law by failing to appreciate that the evidence disclosed no reason (fact or feature) that would cause the Claim to properly be a Claim under the Constitution of Jamaica.
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(vi) The Learned Judge erred in law by failing to appreciate that the Pleadings failed to properly lay a Claim under the Constitution of Jamaica for constitutional redress.
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(vii) The Learned Judge erred in law by failing to appreciate that the evidence and the pleadings disclose no special circumstance to justify the filing of the Claim in the Constitutional Court.
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(viii) The Applicant/Defendant will, if necessary, seek leave to add further grounds of appeal and to add additional grounds of appeal on finalization of the Judge's reasons for his Order.”
In written submissions filed on 16 February 2018, counsel sought to demonstrate that the learned judge had erred in refusing the application to strike out the respondents' fixed date claim form. Counsel argued that the fixed date claim form, which seeks constitutional redress, is an abuse of the court's process and that that redress would have been inappropriately sought because other adequate remedies were available. As such, pursuant to section 19(4) of chapter III of the Charter of Fundamental Rights and Freedoms of the Jamaican Constitution (“the Constitution”), the court should have refused to deal with the claim.
In support of this argument, counsel cited the cases of Kemrajh Harrikissoon v The Attorney General of Trinidad and Tobago [1980] AC 265, Doris Fuller (Administratrix of the Estate of Agana Barrett Deceased) v The Attorney General (1998) 35 JLR 525; Jaroo v The Attorney General of Trinidad and Tobago [2002] UKPC 5; and The Attorney General of Trinidad and Tobago v Siewchand Ramanoop [2005] UKPC 15.
Counsel also contended that whatever factual disputes were contained in the fixed date claim form were properly to be resolved by recourse to the procedures and remedies available under the common law, such as through the torts of negligence and nuisance or breach of statutory duty.
In relation to the learned judge's observation that the application to strike out was brought six months after the consent order was made for the matter to proceed to a hearing before the Constitutional Court, counsel submitted that the learned judge had erred. In that regard counsel submitted that there was no time restriction placed on when an application could be brought to strike out a fixed date claim form. In support of this submission, counsel cited the dictum of Hibbert JA (Ag) in Hon Gordon Stewart OJ et al v Independent Radio Company Limited and Another [2012] JMCA Civ 2, where it was observed at paragraph [17] that:
“It is quite clear that this rule contains no restrictions or preconditions to the exercise of the court's power. In my view, there is nothing contained in this rule that would prevent the hearing of an application under it, even while the matter is awaiting mediation.”
It was also submitted that, in order for a matter to cross the threshold for hearing by the Constitutional Court, the evidence in support of it had to disclose some exceptional or special circumstances or an abuse or misuse of power. That was the position stated both by this court and by the Judicial Committee of the Privy Council (“the Board”), the submission went. That position was taken by the Board, it was argued, in the case of Jaroo v The Attorney General of Trinidad and Tobago in an appeal from Trinidad and Tobago — even though that country's Constitution is silent in respect of the course to be adopted when there are alternative remedies.
In Jaroo v The Attorney General of Trinidad and Tobago, the Board stated, at paragraph 29 of its advice, that:
“…the right to apply to the High Court which section 14(1) of the Constitution provides should be exercised only in exceptional circumstances where there is a parallel remedy.”
There was, it was submitted, no evidence in the...
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