R v Technical Director of Scientific Research Council et Al

• Jurisdiction: Jamaica
• Judge: Carberry, J.A.,Carey, J.A.,White, J.A.
• Judgment Date: 09 May 1984
• Neutral Citation: JM 1984 CA 17
• Docket Number: Civil Appeal No. 54 of 1983
• Court: Court of Appeal (Jamaica)
• Date: 09 May 1984

Court of Appeal

Carberry, J.A.; Carey, J.A.; White, J.A.

Civil Appeal No. 54 of 1983

R

and

Technical Director of Scientific Research Council et al

Appearances:

B. Macaulay, Q.C., W. Charles, M. M. Macaulay for the applicant-appellant.

R.N.A. Henriques, Q.C. and A. Wood for the respondents.

Natural justice - Principles Facts: Appellant, research scientist, suspended and eventually had his contract of employment terminated by Technical Director of the Scientific Research Council. Technical director purported to act for Scientific Research Council. Membership of the council had lapsed and the council had not been reconstituted. Held: Finding that relationship was governed wholly by terms and conditions agreed between the parties. Rules cannot be prayed in and in a pure master/servant situation.

Certiorari — Nature and scope as a remedy in administrative law. It lies where conditions and terms of employment are governed by statute, or regulations which provide a regime for investigation, but not where relationships is governed wholly by terms and conditions agreed between the parties in a contract.

Certiorari — Application for order of certiorari

Facts: Application for order of certiorari to quash decision of Technical Director of the Scientific Research Council to suspend appellant and eventually to terminate the contract of employment. Appellant accused of unauthorised absence from duty and general lack of interest in his work. Technical Director purporting to act for Scientific Research Council. Membership of the council had lapsed and the Council had not been reconstituted. Whether certiorari lies to quash decision taken by Technical Director. Held: Certiorari will not issue where “public element” is absent. Neither Technical Director nor council exercised a public duty or function.

Carberry, J.A.

1 This was an appeal from the refusal of the Full Court consisting of Smith C.J., Orr and Theobalds J.J. to grant to the applicant-appellant an order for certiorari against the respondents, two members of the staff of the Scientific Research Council, and the Council itself which had been ordered to be served as a person “directly affected” by the proceedings.

2 The applicant (hereinafter called the appellant) had sought an Order for Certiorari

“For the removal into the Supreme Court the decisions of the Technical Director of the Scientific Research Council dated the 14th Day of February, 1983, the 3rd and 4th days of March, 1983, suspending the applicant Chris Bobo Squire, a Senior Research Scientist of the Scientific Research Council, and the decision of the Administrative Secretary, Mrs. N.J. Vaughan, communicated to the said applicant terminating the applicant's contract with the Scientific Research Council, TO BE QUASHED…”

3 The appellant was an employee working with the Scientific Research Council on a three year contract. The decisions complained of purported first to suspend and eventually to terminate that contract in accordance with the terms thereof. It was a termination expressed to be in the terms of the contract, upon notice,—- it was not a summary dismissal. The appellant complains: (a) that contrary to the rules of natural justice he was not heard in his own defence by his employers, the Scientific Research Council (hereinafter called the Council), before these decisions were taken; and (b) he also challenges the decisions themselves as having been made by fellow employees, not the Council) and therefore as being void and of no effect. In this case the appellant has sought his remedy in the field of public law by the use of the prerogative writ of Certiorari. The respondents, the two named follow employees whose decisions are complained of, and the Council all appeared by the same counsel, and —- without filing any reply to the appellant's affidavits — have challenged the application on two grounds: (a) that certiorari is not the appropriate remedy and is not available to the applicant, this being a case In the field of private law; and (b) that in any event, as the law now stands, persons in the appellant's position are not entitled to any remedy at all, other than an ordinary action for damages for breach of contract or perhaps an application to the newly created Industrial Disputes Tribunal which has been given the power (not given to the Courts) to order reinstatement of an unjustifiably dismissed worker: See the Labour Relations and Industrial Disputes Act. Secn. 12 (5). Lord Hodson in Ridge v. Baldwin [1964] A.C. 40 at p. 133 said:

“No one, I think, disputes that three features of natural justice stand out-(1) the right to be heard by an unbiased tribunal; (2) the right to have notice of charges of misconduct; (3) the right to be heard in answer to those charges.”

4 What is at issue then in this case is the extent, if any, to which these principles of natural justice apply in cases of dismissals from employment, and secondly whether the remedy sought by the applicant, viz. an order of certiorari is an apt remedy in the circumstances that exist here.

5 Some preliminary observations are in order. The growth of the common law has been largely shaped by the development of the remedies that it provides. Judicial control of the process of local government and what we now call administrative law was largely exercised and developed through the use of the prerogative writs, and as much of that local government law was administered by Justices of the Peace it was perhaps inevitable that such attempts as were made to secure uniformity of administration and the proper observance of the limits of the power entrusted to them should have been exercised by the superior courts, principally by the court of King's Bench. Control tended to be developed through litigation, on a case to case basis, and a principal area of concern was with the issue of jurisdiction. The pre-eminent remedies of this period were the prerogative writs of certiorari, prohibition and mandamus. Halsbury's Laws of England, 1st edn. (1909), Vol 10: Crown Practice, Proceedings on the Crown Side of the King's Bench Division, secn. 7: page 155, para 310: Certiorari: the nature of the writ states:-

“The writ of certiorari issues out of a superior court, and is directed to the judge or other officer of an inferior court of record. It requires that the proceedings in some cause or matter depending before such inferior court shall be transmitted into the superior court to be there dealt with, in order to insure that the applicant for the writ may have the more sure and speedy justice …..

The object of the writ, particularly in civil proceedings, is to give relief from some inconvenience supposed, in the particular case, to arise from the matter being disposed of before an inferior court less capable than the High Court of rendering complete and effectual justice.”

6 At page 160 para. 320 of the same work: Certiorari to quash:

7 It is said:

“Certiorari lies at common law to remove the proceedings of inferior courts or judicial bodies for the purpose of quashing such proceedings where the writ of error did not lie…..

Certiorari also lies to remove for the purpose of quashing, the determination of persons or bodies who are by statute or charter entrusted with judicial functions out of the ordinary course of legal procedure, but within the general scope of the common law…”

(emphasis supplied)

8 No indication is given of the test or touchstone to be applied to see whether the body or the decision in question falls within the reach of certiorari, but, as usual in attempts to define the common law, a number of examples of cases are given. It is apparent that there was at least one common factor, that is that the body was exercising a power in the field of public law, and a second factor (later to be challenged) was that the nature of the power was “judicial” in character in that it involved the making of a decision to apply the power to an ordinary citizen, and that in the decision making process law was to be applied to facts in a considered way, and to anticipate, that the person involved in its application should have a chance to be heard by the deciders before or during the decision making process. The courts were concerned with two main aspects: had the decision makers acted within their powers and secondly, was it the sort of decision that required from its nature that the person affected should have a chance to be heard. Certiorari was to lie where the normal process of judicial review did not run, whether by way of the writ of error or by appeal, but certainly whatever the test, there was never any doubt that it lay in the field of public law, as opposed to that of private law where the common law remedies such as the action for damages was available. As to the early history of the prerogative writs see generally Holdsworth's History of English Law Volume 10 page 243 et seq, and vol. 14 page 245 et seq. it should be observed that in general the courts did not canvass the merits of the actual decisions, but concentrated principally on whether the decision was within the jurisdiction, and on whether the situation was one in which the principles of natural justice, (the opportunity to be heard) should be applied. With regard to the former a considerable volume of learning was built up as to whether the error appeared on the face of the record, or not, and if not as to whether it could be proved aliunde. The courts also refrained from interfering in “administrative” decisions. The test of the difference between “administrative” and “judicial” was on a case to case basis.

9 By the time of the appearance of the Third Edition of Halsbury's Laws of England, in 1955: Volume 11, still under the title of Crown Proceedings, the writs had become orders (save for habeas corpus), but still issued out of the superior court (usually King's Bench). The nature of the orders remained the...