Randean Raymond v Ruel Reid and Board of Management Jamaica College

• Jurisdiction: Jamaica
• Judge: Dukharan JA,Brooks JA,F Williams JA
• Judgment Date: 13 November 2015
• Neutral Citation: JM 2015 CA 119
• Docket Number: SUPREME COURT CIVIL APPEAL NO 48/2015
• Court: Court of Appeal (Jamaica)
• Date: 13 November 2015

[2015] JMCA Civ 59

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Dukharan JA

The Hon Mr Justice Brooks JA

The Hon Mr Justice F Williams JA (AG)

SUPREME COURT CIVIL APPEAL NO 48/2015

Between

Randean Raymond

Appellant

and

The Principal Ruel Reid

1 ^st Respondent

and

The Board of Management Jamaica College

2 ^nd Respondent

Written submissions filed by Bignall Law for the appellant

Written submissions filed by the Director of State Proceedings for the respondents

CIVIL PROCEDURE - Procedural appeal - Application for extension of time for leave to apply for judicial review - Refusal by judge - Question of public interest, hardship or prejudice

PROCEDURAL APPEAL

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

Dukharan JA

1 I have read in draft the judgment of my brother F Williams JA (Ag). I agree with his reasoning and conclusion. I have nothing to add.

Brooks JA

2 I too have read the draft judgment of F Williams JA (Ag) and agree with his reasoning and conclusion.

F Williams JA (AG)

Background

3 This is a procedural appeal arising from the refusal by a judge of the Supreme Court to grant to the appellant an extension of time for leave to apply for judicial review.

4 The appellant filed a without-notice application for leave to apply for judicial review on 3 September 2014. His said application having been filed out of time, he also filed on 13 April 2015, an application for extension of time within which to apply for the said leave. His application arose from the termination of his employment with the 2 ^nd respondent. That was done by way of letter dated 27 March 2013, signed by the 1 ^st respondent. The said termination took effect on 31 March 2013. By way of further background, the appellant, who was enrolled at the University of Technology (UTECH) as a student teacher, did his practicum at Jamaica College from January to March 2012. Thereafter, he became a part-time teacher until the end of July 2012 and from September 2012 he was temporarily employed as a physics teacher and substitute for the holder of the substantive post, who had been seconded to the Ministry of Education. While so employed, he was involved in an altercation with a student and the police were called in.

5 The application for extension of time was dismissed by the learned judge on 27 April 2015, having been heard on 22 April 2015, with the appellant being granted leave to appeal.

6 The appellant, by notice and grounds of appeal filed 5 May 2015, seeks to challenge the learned judge's judgment refusing him the extension of time within which to apply for leave. These are the ten grounds of appeal as set out in the ‘Appellant's Amended Submission’, filed 7 July 2015:

• ‘I. The learned judge erred in ruling that he will not consider the merit [sic] of the proposed judicial review in seeking to determine whether he would exercise his powers under rule 56.6(2).

• II. The learned judge erred in failing to address sufficiently or at all, the fact that the merits of the proposed judicial review could provide a good reason for exercising his power under rule 56.6(2).

• III. The learned judge erred in failing to address sufficiently or at all, whether (and for what reasons) the “lack of promptness” weighed more in favour of the public interest than the merits of the proposed judicial review.

• IV. The learned judge erred in failing to address sufficiently or at all, whether the public interest could provide a basis for him to exercise his powers under rule 56.6(2), even if the appellant had not justified the delay in applying for judicial review.

• V. The learned judge erred in failing to consider sufficiently or at all, whether the appellant had provided sufficient good reasons for the delay to justify him exercising his powers under rule 56.6(2).

• VI. The learned judge erred in holding that the overriding objective (of dealing justly with cases) should not be applied in interpreting rule 56.6(2) on the issue of extension of time.

• VII. The learned judge erred in not applying the overriding objective when considering whether to exercise the court's power under rule 56.6(2) especially in light of the full facts as set out in three affidavits by [the] appellant and in the affidavit of the 1 ^st respondent.

• VIII. The learned judge erred in not considering sufficiently or at all the fact that the absence of any affidavit evidence of substantial hardship or prejudice to third parties or detriment to good administration could provide a good reason for exercising the power under rule 56.6(2).

• IX. The learned judge misdirected himself on the facts when he accepted and treated and elevated unproven, unsworn statements made in exhibits ‘RR3’ of the Further Affidavit of Randean Raymond filed on 13 April 2015 as evidence of the purpose of the application before the court.

• X. The learned judge erred in not exercising his power under rule 56.6(2) in the full circumstances of this case.’

7 A careful reading of the grounds will reveal some overlapping among them. No doubt recognizing this, counsel for the appellant argued some of the grounds together.

Summary of submissions for the appellant

8 In amended written submissions filed on 7 July 2015, counsel for the appellant submitted that the sole issue before this court is whether the learned judge had properly exercised his discretion in refusing the application for extension of time. It was submitted that, although the function of the appellate court was one of review, the court might nonetheless disturb the findings of the learned judge, if satisfied that the judge was palpably wrong (counsel cited, inter alia , Hadmor Productions Ltd and another v Hamilton and others [1982] 1 All ER 1042 and Watt v Thomas [1947] AC 484).

9 Counsel further set out what (it was submitted) were the three relevant

considerations outlined in R v Secretary of State for Trade and Industry, ex parte Greenpeace (No 2) [2002] 2 CMLR 94, namely:

• ‘i. Is there a reasonable objective excuse for applying late?

• ii. What, if any, is the damages [sic], in terms of hardships [sic] or prejudice to the third party rights and detriment to good administration, which would be occasioned if permission were not granted?

• iii. In any event, does the public interest require that the application be permitted to proceed.’

  (See paragraph 9 of the ‘Amended Appellant's Submission’.)

10 In addressing grounds I-IV (argued under the heading: ‘Merits’), counsel argued that the critical consideration for extending time was whether there was a good reason for doing so, which should include a consideration of the merits of the case. Further, it was submitted that the learned judge was required to state why the public interest and merits of the case did not require the application to proceed (citing Fisherman and Friends of the Sea v The Environment Management Authority and BP Trinidad & Tobago LLC, Privy Council appeal No 30 of 2004, judgment delivered 25 July 2005, and ex parte Greenpeace ).

11 In respect of ground V (argued under the heading: ‘Reason for the Delay’), counsel for the appellant submitted that the learned judge had failed to consider all the relevant factors explaining the delay after January 2014, and instead placed too much emphasis on “speed” being one of the “hallmarks” of judicial review applications.

12 Where grounds VI-VII (argued under the heading: ‘Overriding Objective’), were concerned, counsel contended that the decision of the learned judge to the effect that Part 56 of the Civil Procedure Rules (CPR) was “self-contained” and that there could be no reference to any other part of the CPR unless Part 56 itself made that reference, was incorrect. It was not (counsel submitted) supported by the authority of Orrett Bruce Golding and the Attorney-General of Jamaica v Portia Simpson Miller SCCA No 3/2008, judgment delivered 11 April 2008, in that ‘…the decision of the Court of Appeal was not so expansive as to re-write, discount or dilute the clear words of Rule 1.3 of the Civil Procedure Rules’ (See paragraph 25 of the ‘Amended Appellant's Submission.’) That case dealt with the issue of ‘resurrecting’ expired conditional leave. Consequently, the learned judge ought to have given consideration to the overriding objective of dealing with cases justly.

13 With regard to ground VIII (argued under the heading: ‘Hardship and Prejudice’), counsel contended that, whilst it was not a condition precedent for the grant of an extension of time for leave to apply for judicial review, for the applicant to provide affidavit evidence showing that there would be no substantial hardship and/or substantial prejudice, or detriment to good administration, the absence of such evidence should nevertheless have been a factor considered by the learned judge. His doing so would not have gone against the authority of Jones and others v Solomon (1989) 41 WIR 299. Additionally, counsel for the appellant requested that the court rule on this issue due to what he submitted was the absence of relevant decisions in this jurisdiction which addressed the issue.

14 Further, in relation to ground IX (argued under the heading: ‘Statements in Exhibits’), it was argued by counsel that the learned judge wrongly expanded his decision beyond the appellant's intended limited scope for the letters exhibited. In doing so (the submission continued) he erred — especially since the appellant was not given an opportunity to address the court on the observations in relation to the affidavit.

15 Counsel also submitted that there was a clear breach of the Education Regulations and the principles of natural justice. It was submitted that it was in the public interest to prevent that type of breach by public officials, which would trump any...