Steadman Broderick v Firearm Licensing Authority
| Jurisdiction | Jamaica |
| Judge | N. Hart-Hines, J |
| Judgment Date | 09 October 2020 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. SU2020HCV00096 |
| Date | 09 October 2020 |
[2020] JMSC Civ 197
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
CLAIM NO. SU2020HCV00096
Mr. Hugh Wildman and Ms. Faith Gordon instructed by Hugh Wildman & Company for the Applicant.
Ms. Courtney Foster instructed by Courtney N. Foster and Associates for the Respondent.
Application for leave for judicial review — Whether there is an arguable case for leave — Order made by the respondent revoking an expired firearm licence — Duty of decision maker to give notification of its decision — Notification of revocation sent by registered post — The date from which three-month time limit for filing the application should run — Whether the date of the revocation order or the date of its receipt should be regarded as the date of notification — Whether an alternative remedy was available to the applicant at the date of notification of the decision — Part 56 of the Civil Procedure Rules, 2002, as amended.
N. Hart-Hines, J (Ag.)
The respondent, the Firearm Licensing Authority was established in 2005 as a statutory organization within the Ministry of National Security, to regulate the granting, renewal and revocation of firearm licences in Jamaica. The respondent comprises of an Executive body, a five-member Board (appointed by the Minister), and a five-member Review Board (also appointed by the Minister). The Executive body, headed by a Chief Executive Officer, has responsibility for daily administrative functions, including investigations into applicants. The Board reviews applications and reports in respect of investigations carried out by the Executive body, and then makes decisions in respect of the grant, renewal and revocation of firearm licences. The Review Board is the designated statutory appellate body to which an applicant may apply for a review of the Board's decision.
On April 5, 2017 the applicant was issued with a firearm licence by the respondent pursuant to section 29 of the Firearms Act (“the Act”). The firearm licence expired on April 9, 2018. The applicant subsequently applied for a renewal of his firearm licence on October 17, 2018. At that time, the respondent conducted an investigation which revealed that the applicant resides and works in Canada. The respondent also received intelligence in respect of the applicant. Following its investigation, the respondent issued a revocation order purporting to revoke the applicant's licence on August 12, 2019. The reason given for the revocation is that “ the need to continue to be armed has not been established”.
The respondent made efforts to serve the revocation order but was unable to do so as the applicant was not on the island. The revocation order was therefore sent to the applicant by registered post. It is unclear from the applicant's affidavit, filed on January 14, 2020, whether or not he was in fact away from the island between August 12, 2019 and October 16, 2019. However, the applicant averred that he only received the revocation order on October 16, 2019.
By way of notice of application filed on January 14, 2020 the applicant seeks leave to apply for judicial review, to obtain relief by way of declaration that the revocation of the applicant's firearm licence, on the basis indicated, was irrational, improper, null and void, and to obtain an order of certiorari quashing the revocation order.
The primary issues for the determination of this court are:
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1. Whether the reason given for the revocation of the applicant's firearm licence appears to be a valid reason within section 36 of the Act;
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2. Should the effective date of notification of the revocation order be the date of the order or the date of its receipt?
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3. Whether there are applicable discretionary bars which would prevent leave to apply for judicial review being granted. Specifically, was an alternative remedy available to the applicant at the date of notification of the revocation order, and has the applicant delayed in making the application?
Other issues are discussed at paragraphs 53 to 62.
In support of his application, the applicant swore to an affidavit indicating that he is an electrician with contracts to carry out work for entities including the Jamaica Public Service Company Limited and that his contractual obligations require him to work in dangerous areas throughout Jamaica and he therefore required a firearm licence. No explanation was offered by the applicant for the six-month delay in seeking to renew of his firearm licence between April 9, 2018 and October 17, 2018. The applicant did not indicate why he did not receive the notification of the revocation order until October 16, 2019, and he did not give an explanation for the delay between October 16, 2019 and the filing of his application on January 14, 2020.
The applicant averred that he was aware that there is an alternative remedy available to him pursuant to section 37 of the Act. However, he said that his Attorneys-at-Law advised him that applications to the Review Board to review the Board's decisions to revoke or refuse firearm licences “ have not been determined within the statutory period of ninety days, as required by law”. Further, he said that his Attorneys-at-Law contend that the respondent's action, being null and void, did not require him to invoke the provisions contained in section 37(1) of the Act.
An affidavit was sworn to by Ms. Lethine Allen on behalf of the respondent. As the respondent's Director of Compliance and Enforcement, Ms. Allen stated that she was in charge of investigations in respect of the applicant's complaint in this matter. Ms. Allen stated that an investigation revealed that the applicant resides and works in Canada, although he provided a Jamaican address as his place of residence when he first submitted his application for the firearm user's licence. Further, Ms. Allen stated that intelligence was obtained by the respondent during the course of its investigation, which cannot be disclosed. Ms. Allen stated that the findings of the investigation were submitted to the Board. The applicant's firearm licence was revoked on August 12, 2019 and the respondent's decision was sent by registered post to the applicant as is permitted by section 49 of the Act.
Ms. Allen averred that there had been no breach of the principles of natural justice since the applicant had been afforded an opportunity to be heard when the respondent requested a statement of him explaining why he failed to promptly submit his application for renewal of his licence.
Counsel Mr. Wildman submitted that the reason stated in the revocation order that “ the need to continue to be armed has not been established” is not a reason within the ambit of section 36 of the Act, and consequently the revocation order is a nullity and should be set aside ex debito justitiae. Counsel submitted that the decision was irrational and illegal. Mr. Wildman relied on the Privy Council decisions in Strachan v Gleaner Company Ltd and another [2005] 1 WLR 3204, Commissioner of the Independent Commission of Investigations v Police Federation and others [2020] UKPC 11, and National Transport Cooperative Society Limited v Attorney General of Jamaica [2009] UKPC 48.
Mr. Wildman reviewed some of the paragraphs of the affidavit of Lethine Allen, filed on behalf of the respondent. Counsel submitted that the respondent's position that it has an absolute power to revoke a licence, is incorrect as there is no absolute power in the statute. Counsel opined that any revocation of a licence must be in keeping with the grounds indicated in section 36 of the Act.
Further, counsel submitted that the process by which the licence was revoked, did not afford the applicant an opportunity to be heard before the revocation. Counsel relied on the Privy Council decision in Barl Naraynsingh v The Commissioner of Police [2003] UKPC 20. Counsel indicated that although Ms. Allen alleged that the respondent gave the applicant an alleged opportunity to be heard when a statement was requested of him, this alleged opportunity was insufficient.
Mr. Wildman further submitted that the decision taken by the respondent also appears to be void since the respondent did not seem to be properly constituted at the time of its decision on August 12, 2019. Section 26A of the Act and the Third Schedule thereto indicates how the Firearm Licensing Authority (“the Authority”) is to be constituted. Counsel relied on the affidavit of Indira Patmore and the documents exhibited thereto for the proposition that, save for two members of the Board (referred to in the Act as “the Authority”), the constitution of the Board as Gazetted on March 29, 2018 differs from that currently indicated on the Authority's website. Pursuant to provision 10 of the Third Schedule of the Act, the quorum of the Board shall be three (3) members. However, when Ms. Patmore visited the website on May 12, 2020, only two (2) of the names gazetted appeared to still be members the respondent's Board.
Mr. Wildman submitted that the applicant had satisfied the threshold test that there was a strong case that the respondent exceeded its powers. Counsel submitted that there were no discretionary bars applicable which ought to prevent leave to apply for judicial review being granted. Counsel submitted that the three-month time limit for filing the application (pursuant to rule 56.6(1) of the CPR) should run from the date on which the applicant received the revocation order. Since the applicant received the revocation order on October 16, 2019, he had until January 16, 2020 to file the application for leave to apply for judicial review, and the application was filed in time.
Counsel Mr. Wildman relied on the House of...
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