Suzette Curtello v The University of the West Indies
| Jurisdiction | Jamaica |
| Judge | F Williams JA,P Williams JA,Straw JA,F Williams |
| Judgment Date | 17 March 2023 |
| Neutral Citation | JM 2023 CA 30 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 118/2018 |
| Court | Court of Appeal (Jamaica) |
(Board for Graduate Studies and Research)
[2023] JMCA Civ 11
THE HON Mr Justice F Williams JA
THE HON Miss Justice P Williams JA
THE HON Miss Justice Straw JA
SUPREME COURT CIVIL APPEAL NO 118/2018
IN THE COURT OF APPEAL
Mrs Caroline Hay QC, Neco Pagon and Miss Kalisia Miller instructed by Caroline P Hay for the appellant
Christopher Kelman and Miss Stephanie Ewbank instructed by Myers Fletcher and Gordon for the respondent
By notice and grounds of appeal filed on 4 December 2018, the appellant appeals against a decision of Rattray J (hereafter referred to as ‘the learned judge’) made on 6 November 2017. The orders made when the said decision was given are reflected in a formal order filed 18 December 2017 and were as follows:
“1. The Respondent's preliminary objection is upheld.
2. The Applicant's Notice of Application for leave to obtain judicial review is refused.
3. No order as to costs.”
When the application came on for hearing before the learned judge, counsel for the respondent took a preliminary objection to it being heard. The objection (which was contained in a notice of preliminary objection dated and filed on 21 June 2017) was taken on the basis that the matter was res judicata, Sykes J (as he then was) having, on 11 November 2015, set aside his earlier ex parte order (made 27 October 2015) granting the appellant leave to apply for judicial review. That application before Sykes J was made on largely the same grounds as those the appellant sought to advance before the learned judge. The applicant's subsequent application before the learned judge was therefore, on the respondent's case, an abuse of the process of the court. A judge of coordinate jurisdiction could not rehear the application already heard and determined by Sykes J, a rehearing of that decision only being possible on appeal to the Court of Appeal, it was averred.
The appellant is a graduate student at the University of the West Indies, Mona Campus (‘the UWI’), enrolled in the Doctor of Philosophy (‘PhD’) programme in the Faculty of Medical Sciences, Department of Basic Medical Sciences. Her goal is to attain the qualification: “PhD, Biochemistry”. She reached as far as completing and submitting her doctoral thesis. However, she and the Board for Graduate Studies and Research (‘the Board’), which is the UWI's body responsible for the award of that and other post-graduate diplomas and degrees, had a dispute in relation to the assessment of that thesis. Two main issues arose between them. One issue was whether the Board was correct in its view and assertion that the appellant ought to complete nine credits in graduate-level courses by the end of the 2014/2015 academic year; and, even if not by then, to do so as a necessary condition to the appellant's being awarded the degree. The appellant's answer to this position is that the Board had waived that requirement. The other issue was whether her thesis had been fairly assessed; and, if so, whether she was required to resubmit her thesis within 18 months of being notified that it required revision and corrections, in keeping with regulation 3.30 of the Board's regulations. The appellant's belief and contention is that her thesis was not fairly assessed and that no resubmission should be necessary: instead, she should be allowed to proceed to orally defend her said thesis. It is her view that, of the three persons who assessed her thesis, one is likely to be someone with whom she has had a less-than-harmonious relationship; and that the nature of that relationship influenced that third person to give an unfavourable assessment, though, objectively (on the appellant's contention) her thesis was not in need of review and resubmission. The remedy that she seeks in this regard is for an order for specific disclosure, requiring the Board to disclose who her internal and external examiners were. This information, she contends, will assist her in having the Board's decision judicially reviewed, should leave be granted.
The respondent's position at all stages is a jurisdictional one: that the appellant's application for judicial review is, at best, premature. Jurisdiction for the resolution of a matter of this nature, the respondent asserts, lies, not in the Supreme Court of Judicature of Jamaica, but, at that time, in Her Majesty, Queen Elizabeth II, by virtue of her visitorial authority (and now, with Her Majesty's passing, in King Charles III). That authority, it was contended, is to be seen in section 6 of the Royal Charter establishing the University, which reads as follows:
“We, Our Heirs and Successors, shall be and remain the Visitor and Visitors of the University and in exercise of the Visitorial Authority from time to time and in such manner as We or They shall think fit may inspect the University, its buildings, laboratories and general work, equipment, and also the examination, teaching and other activities of the University by such person or persons as may be appointed in that behalf.”
Before approaching the court through her application to Sykes J, the applicant had not sought to avail herself of the visitorial jurisdiction. Sykes J, in his written judgment discharging his previous orders, carefully traced the origins and history of the office of visitor and its connection to eleemosynary corporations/foundations. The nub of his ruling may be seen in para. [2] of his judgment, where he observed as follows:
“From the learning derived from the cases, the court has decided that Miss Curtello ought to utilise the visitor system of UWI.”
The particular orders that he made are contained in para. [63] of the judgment and were as follows:
“[T] the claim form filed in this case has to [be] struck out and the leave to apply for judicial review set aside.”
In her notice and grounds of appeal filed in this matter, the appellant has sought to challenge the learned judge's decision on the following grounds:
“A. The learned Judge below fell into error when he interpreted letter dated August 16, 2016 from Buckingham Palace to the Appellant as affirming the Visitorial Jurisdiction of the Queen of England, Her Majesty Elizabeth II (‘Her Majesty the Queen’) and in finding that the Visitorial Jurisdiction was available to the Appellant arising from that letter and at the time of the filing of her action in the Court below.
B. The learned Judge below fell into error when he interpreted letter dated September 2, 2016 from Kings House Jamaica to the Appellant as affirming the Visitorial Jurisdiction of Her Majesty the Queen and in finding that the Visitorial Jurisdiction was available to the Appellant arising from that letter and at the time of the filing of her action in the Court below.
C. The learned Judge below fell into error when after retiring to consider his ruling on the preliminary objection, he allowed into evidence as ‘fresh evidence’ letter dated September 7, 2017 from Kings House Jamaica to the Respondent purporting to indicate that arrangements had now been made and settled for 6 Petitions to Her Majesty the Queen (unrelated to the Appellant) to be heard within the region when, such evidence:
i. failed to satisfy the requirements set out in Ladd v Marshall [1954] 3 All ER 745;
ii. was only capable of affirming what the Respondent already knew at the hearing of the application for leave — at the time the Appellant had filed her present action there was no settled accessible Visitorial Jurisdiction available to her;
iii. revealed the fact that the Respondent had either misled the Court, concealed relevant information from the Court of matters peculiarly within its sole knowledge or was less than forthright in the Court below in earlier proceedings filed by the Appellant in Claim No. 2015 HCV 05012 Suzette Curtello v University of the West Indies (Graduate Studies Board) where the Appellant sought similar relief against the Respondent in the form of judicial review. As such the Respondent was seeking to take advantage of an abuse of the process of the Court and the letter ought to have been rejected by the learned Judge;
iv. In the earlier proceedings the Respondent had represented to the Court below that the Visitorial Jurisdiction was settled and available to the Appellant when in April 19, 2017 the Respondent confirmed that it knew that was not the case.
D. The learned Judge below fell into error when he applied the doctrine of res judicata and upheld the preliminary objection to the application for leave to obtain judicial review. The weight of judicial authority in Jamaica establishes that the doctrine of res judicata does not readily lend itself to applications for judicial review because there is no lis between the parties. It was therefore wrong in both fact and law for the learned Judge to hold that the Applicant's application for judicial review was premature.”
These are the orders sought in the notice and grounds of appeal:
“1. An Order that the Respondent's preliminary objection is dismissed.
2. A Declaration that at the time of the commencement of these proceedings, the appellant had no alternate means of redress.
3. An Order that the Appellant's Notice of Application for leave to obtain judicial review is granted.
4. Costs
5. Further or other relief as this Honourable Court deems just.”
By amended notice and grounds of appeal filed on 17 January 2019, the appellant has added the following as ground E:
“E. The learned Judge below improperly exercised his discretion by failing to give reasons for refusing the Appellant's application for leave to obtain judicial review where those reasons were plainly required on the evidence thus entitling this Honourable Court to examine the...
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