R v Attorney General ex parte Jamaican Bar Association

• Jurisdiction: Jamaica
• Judge: ELLIS J. , F.A. SMITH, J, , Ellis, J , Ellis, J. , Smith, J. , Clarke, J.
• Judgment Date: 13 July 1999
• Judgment citation (vLex): [1999] 7 JJC 3013
• Date: 13 July 1999
• Court: Supreme Court (Jamaica)
• Docket Number: SUIT NO. M89 of 1999

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN FULL COURT

BEFORE:

THE HON. MR. JUSTICE ELLISTHE HON. MR. JUSTICE SMITHTHE HON. MR. JUSTICE CLARKE

SUIT NO. M89 of 1999

Regina

vs.

The Attorney General Ex parte The Jamaica Bar Association

COURT MANAGEMENT - Court sittings - Hours - Whether Chief Justice had power to alter hours - Whether Bar had legitimate expectation of consultation before decision - Whether duty to consult fulfilled

ELLIS J

1 A notice setting out the new hours of all sittings of the Supreme Court, Gun Court, Resident Magistrate's Court, Family Court and Petty Sessions Court was sent to the president of the Jamaican Bar Association (hereinafter called the Bar Association). That notice accompanied a letter dated 11th May 1999 on the authority of the Chief Justice requesting that it be published in JAMBAR the news letter of the Bar Association, That letter was followed by one dated June 1, 1999 from the president of the Bar Association to the Chief Justice.

2 In an attached note, certain concerns and suggestions relative to the new hours were expressed. A meeting was requested to discuss the matter with the Chief Justice. Other letters on the matter were written to the Chief Justice by the president of the Bar Association. Two of those letters which bear the date 28th June 1999 attract reference. The one sets out the following -

• (i) that at an Extraordinary General meeting of the Bar Association on the 26th June 1999 legal opinions on the law dealing with the establishment, regulation and change of the hours of sitting of the Courts were considered and reviewed;

• (ii) that the considered view of the Bar Association that any change in the existing hours for the Courts referred to in the Notice of May is a matter for the respective Rules of Committee of those Courts.

• (iii) that the Bar Association was of the view that the notice should be withdrawn. If the Chief Justice was of a different view the Bar Association would wish to seek a formal interpretation and pronouncement on the matter from the Supreme Court.

3 The other tetter suggested -

• (a) meetings of the respective Rules Committees to be convened as quickly as possible to give due consideration to whether the hours of sitting ought to be changed;

• (b) as a separate, matter, machinery be immediately set in motion to examine specific and detailed proposals aimed at improving the efficiency of the Courts for the benefit of the public and the administration of justice.

4 A resolution passed at the meeting of the 26th June 1999 recited the suggestions contained in the above letters,

5 On the 1st of July 1999, leave was granted to the Bar Association to apply for Certiorari and Declarations. The above is a brief history of the matter now before this Court.

6 The applicant in its motion seeks relief on the following grounds -

The Honourable Chief Justice by unilaterally ordering and/or deciding that the hours of sittings of the said Courts and of the judges of the said Courts whether sitting in Court or in Chambers should be changed from 10 a.m. to 4 p.m., to a time period of 9.00 a.m. to 4.30 p.m., has contravened the following Acts and sections thereto:- the Judicature (Rules of Court) s.4(2) (b), the Judicature (Supreme Court) Act section 31 (3), the Gun Court Act ss 7,15, & 16, the Judicature (Resident Magistrate's) Act s. 135, the Judicature (Family Court) Act ss. 9 & 4 (4), the Judicature ( Miscellaneous Provisions) Act and the Justices of the Peace Jurisdiction Act and has acted ultra vires and without proper authority.

• (ii) The applicant had a legitimate expectation that in a matter in relation to the alteration of the hours of sittings of the said Courts of material concern to the members of the applicant, it would be consulted as has been the regular practice in matters of this nature for the last fifteen years in that -

  • (a) the applicant for the last twenty-six (26) years has been solely comprised of attorneys-at-law qualified to practice in Jamaica and elsewhere and has represented and protected the rights and interest of the public and the Legal Profession;

  • (b) the applicant for approximately fifteen (15) years has through its committee known as "The Joint Consultative Committee of the Bench and Bar," provided a forum for discussion of matters of mutual interest to the judiciary and the attorneys-at-law in particular matters pertaining to the legal profession and operation of the Justice System,

  • (c) the applicant through its said sub-committee has served a very valuable function discussion and resolving such matters;

  • (d) the Honourable Chief Justice is attempting to alter the hours of sittings of the Supreme Court, Gun Court, Resident Magistrate's Court. Family Court and Petty Sessions Court and the Judges of the said Courts whether sitting in Court or in Chambers by ordering and/or deciding that the said Courts begin sitting at 9.00 a.m. where it would ordinarily begin at 10.00 am. and close at 4.30 p.m. where it would ordinarily close at 4 p.m. as was the Court procedure for several decades, without consulting the applicant or submitting the issue for discussion within the forum that the applicant provides; and accordingly the Honourable Chief Justice has acted unfairly and in breach of the rules of Natural Justice,

• (iii) that the said Order and/or decision of the Honourable Chief Justice is arbitrary, unfair and/or unreasonable.

7 From the above grounds I see two issues in this matter. They are:-

• (i) Did the Chief Justice have the authority to change the hours of the sittings of the various Courts without a consideration by the Rules Committee of those Courts?

• (ii) Did the applicant have a legitimate expectation of being consulted prior to those changes?

8 In these proceedings the burden of proof is on the applicant. In discharging that burden of proof of Mr. Small Q.C. referred the Court to the following statutes -

• (a) The Judicature (Supreme Court) Act, the present Act and that prior to the present Act.

• (b) The Resident Magistrate's Act Section 135

• (c) The Family Court Act

• (d) The Gun Court Act

• (e) The Traffic Court Act

• (f) The Judicature (Rules of Court) Act

9 In addition to the statutes, gazetted orders made under the Judicature (Supreme Court) Act, the Judicature (Rules of Court) Act, paragraphs from the Supreme Court Practice of England and Halsbury's Laws of England were referenced.

10 Those statutes and other materials were analysed by Mr. Small and Miss Martin for the applicant. The argument, as I understand it, advanced on the analysts was as follows -

The decision to change the hours of sitting in the various Courts is a matter for the Rules Committees and not the Chief Justice.

Section 31 of the Judicature (Supreme Court) Act gives the Chief Justice the authority to make orders appointing the times and places for holding Circuit Courts, A Circuit Court shall be held three times per year in each parish.

It is to be noted that the gazetted orders under s. 31 of the Judicature (Supreme Court) Act speak only to the day of the opening and closing of each sittings of a Circuit Court. They do not speak of the hour for the commencement and termination on the days of a sitting.

Section 27 of the Judicature (Supreme Court) Act fixes the Supreme Court with the jurisdiction, power and authority which was vested in the following Courts -

The Supreme Court of Judicature

The High Court of Chancery

The Encumbered Estates Court

The Court of Ordinary

The Court of Divorce and Matrimonial Causes

11 The Chief Court of Bankruptcy and the Circuit Courts or any of the Judges of the above Courts or the Governor as Chancellor or Ordinary acting in any judicial capacity and all ministerial powers. duties, and authorities, incident to any part of such jurisdiction, power and authority. (I have emphasized this Clause and will return to it later in my judgment).

12 Section 28 of the Judicature (Supreme Court) Act sets out the manner in which the Courts jurisdiction is to be exercised thus-

"Where no special provision is contained in this Act, or in the Civil Procedure Code or law, or in such rules or orders of Court, with reference there to, it shall be exercised as nearly as may be in the same manner as it might have been exercised by the respective Courts from which it is transferred or by such Courts or Judges, or by the Governor as Chancellor or Ordinary".

13 The Judicature (Rules of Court) Act by s. 4 sets out the functions of the Rules Committee and the matters for which Rules of Court may be made. Clause (I) of section 4 says that Rules of Court may be made "for regulating or making provision with respect to any other matters which were or might have been regulated or with respect to which provision was or might have been made by Rules of the Supreme Court or which under this Act or any other enactment may be regulated or provided for by Rules of Court".

14 In my opinion, that clause does no more than to enable the Rules Committee to make Rules for matters which have been previously regulated by Rules of the Supreme Court. Also any other matter which may be regulated under the Rules of Court Act.

15 In that light, I must per force look at the Judicature Law of 1879 which came into force I st January 1880...