Steadman Broderick v Firearm Licensing Authority
| Jurisdiction | Jamaica |
| Judge | F Williams JA,V Harris JA,Brown Beckford JA |
| Judgment Date | 04 March 2022 |
| Neutral Citation | JM 2022 CA 25 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2020CV00076 |
| Court | Court of Appeal (Jamaica) |
| Year | 2022 |
[2022] JMCA Civ 9
THE HON Mr Justice F Williams JA
THE HON Mrs Justice V Harris JA
THE HON Mrs Justice Brown Beckford JA (AG)
SUPREME COURT CIVIL APPEAL NO COA2020CV00076
IN THE COURT OF APPEAL
Written submissions filed by Hugh Wildman & Company for the appellant
Written submissions filed by Courtney N Foster and Associates for the respondent
(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)
I have read the draft judgment of my sister V Harris JA. I agree with her reasoning and conclusion and have nothing useful to add.
This is an appeal from the judgment of Hart-Hines J (Ag), as she then was (‘the learned judge’), who, on 9 October 2020, refused Mr Steadman Broderick's (‘the appellant’) application for leave to judicially review the decision of the respondent, the Firearm Licensing Authority (‘the FLA’), revoking his Firearm User's Licence (‘the application for leave’). The learned judge also directed the appellant to pursue the alternative remedy available to him by appealing to the Review Board of the FLA.
The important question that arises on this appeal is whether the learned judge improperly exercised her discretion when she refused the application for leave. Specifically, the central issue is whether the learned judge erred when she found that the appellant had an arguable ground for judicial review but refused the application for leave because an alternative remedy was available to him, rejecting his explanation for not pursuing it and directing him to do so.
The appellant is an electrician. It would appear that he resides and works in both Canada and Jamaica. The FLA is a statutory body established under section 26A of the Firearms Act (‘the Act’). Its core functions concern the granting, renewal and revocation of firearm licences in Jamaica.
On 8 January 2016, the appellant's application for a Firearm User's Licence (‘the licence’) was granted by the FLA. The appellant was issued the licence on 5 April 2017, which expired on 9 April 2018. He applied to renew the licence on 17 October 2018, more than six months after it had expired. This would mean that at the time of his application for renewal, the appellant was no longer the holder of the licence.
The FLA conducted an investigation to determine if it should renew the licence given the appellant's delay in making the application for renewal. According to the FLA, the investigation revealed that the appellant resided and worked in Canada. Additionally, it had received certain “intelligence” regarding the appellant. As a result, the appellant was requested to provide a statement to explain the delay in making the application for renewal of the licence. However, this was not forthcoming. Following the investigation, the FLA revoked the licence on 12 August 2019. This was on the basis that the appellant had failed to establish “the need to continue to be armed”.
The appellant is aggrieved by the FLA's decision. He denies that he no longer needs to be armed. He asserts that he is contracted to carry out electrical works for the Jamaica Public Service Company Limited and S&T Electrical Company Limited and has worked for these entities for eight and nine years, respectively. The appellant states that the nature of his job requires him to work in dangerous communities within the Corporate Area, Saint James and Clarendon. As a result, there was no factual basis to support the FLA's finding, which led to the revocation of the licence.
The appellant received the notice containing the revocation order on 16 October 2019. He was instructed to deliver the licence and certificate to the FLA within five days of receiving the notice, which he failed to do (in breach of section 36(2)(b) of the Act). Additionally, he did not seek to challenge the FLA's decision to revoke the licence by applying to the Review Board within the prescribed time stipulated by the regulations under the Act. Instead, on 14 January 2020, he initiated the application for leave in the Supreme Court. The learned judge heard the matter on 17 September and 1 October 2020. On 9 October 2020, after giving written reasons for her decision, she made the following orders:
“1. The application for leave to apply for judicial review is refused.
2. The [appellant] having not first sought to appeal to the Review Board of Firearm Licensing Authority, the [appellant] is now directed to do so.
3. The order of this court and the written judgment are to be served on the Review Board of [the] Firearm Licensing Authority.
4. Costs awarded to the respondent on the basis that the court considers that the [appellant] has acted unreasonably in making the application, when an alternative remedy was available to him. Costs to be agreed or taxed.
5. Leave to appeal granted.
6. The [appellant's] Attorneys-at-Law are to prepare, file and serve this order.”
On 15 October 2020, the appellant filed a notice of appeal challenging the learned judge's decision on the following grounds:
“a) The Learned Trial Judge erred in law in failing to appreciate that once she concluded, as she did, that the Respondent had no basis, based on section 36 of the Firearms Act, to revoke the Appellant's firearm licence, then the question of alternative remedy ought not to have arisen and leave should have been granted as a matter of right.
b) The Learned Trial Judge erred in law in concluding that the reason given for not pursuing the alternative remedy, that is, the continuous breach of the Firearms Act by the Review Board, in not determining Appeals within the statutory period of 90 days, is not a good explanation for not pursing [sic] the alternative remedy.
c) The Learned Trial Judge erred in law in failing to appreciate that once she concluded that the Respondent acted in breach of the Act by revoking the Appellant's Firearm Licence for reasons not covered under the Act, entitles the Appellant to have the decision set aside ex debito justitiae [as a matter of right], as such revocation would amount to an arbitrary abuse of the powers given to the Respondent by the Firearms Act.
d) The Learned Trial Judge erred in law in directing that the Appellant should now pursue his alternative remedy in appealing to the Review Board by failing to appreciate that the time prescribed under the Act for such Review would have expired.” (Italics as in the original)
Mr Wildman argued, on behalf of the appellant, that the FLA did not have the power under section 36 of the Act to revoke the licence for the reason that it did. The learned judge, it was further argued, agreed with that proposition and, as a result, found that the appellant had “an arguable ground for judicial review which has a realistic prospect of success”. However, the argument continued, the learned judge fell into error by refusing the application for leave because she failed to appreciate that the appellant would be entitled to have that decision quashed as of right.
Mr Wildman also posited that, in the circumstances, the learned judge was wrong to have considered any other issue such as an alternative remedy or delay as being a discretionary bar to the application for leave. Further, she erroneously exercised her discretion by refusing the application for leave on the premise that the appellant had an alternative remedy. The appellant's position is that in the context of the evidence before the learned judge, as well as the law, “there is no alternative remedy”.
The case of Benjamin Leonard MacFoy v United Africa Company Limited [1961] UKPC 49 (‘ MacFoy’) was cited in support of these submissions. The appellant also relied on section 36 of the Act and The Commissioner of Independent Commission of Investigations (Appellant) v Police Federation & Others (Respondents) Jamaica [2020] UKPC 11. The latter authority was cited for the proposition (which is not a subject on appeal) that given the language of section 36 of the Act, “one cannot read into the clear language of section 36, a power which parliament did not confer”. It is also noted that the appellant's bundle of authorities filed on 18 November 2020 contained several other cases. However, Mr Wildman did not indicate how they would have advanced the appellant's submissions. Having read them, I did not find that they were particularly helpful in addressing the issues that he raised.
On behalf of the FLA, Miss Foster contended that although the learned judge found that the appellant had an arguable ground for judicial review, she was entitled, as a matter of law, to consider the discretionary bars of delay and an alternative remedy. Counsel further contended that having done so, she correctly exercised her discretion by refusing the application for leave on the basis that an alternative remedy was available to the appellant.
Miss Foster submitted that judicial review was a remedy of last resort. She pointed out that when the appellant received the revocation order, he had a statutory alternative remedy available to him, by virtue of section 37 of the Act, that he refused to utilise. Counsel further submitted that, in all the circumstances, the appellant had failed to demonstrate that the learned judge breached her duty to act judicially when she refused the application for leave.
Miss Foster further submitted that the learned judge was correct in finding that the application for leave was also to be refused on the ground of delay. She posited that the application for leave was filed “significantly” out of time, and there was no written or oral application made by the appellant for an extension of time.
In support of these submissions,...
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