Tanisha Perry v The Commissioner of Police and The Attorney General

JurisdictionJamaica
CourtSupreme Court
JudgeLaing J.
Judgment Date31 July 2018
Neutral Citation[2018] JMSC Civ 113
Docket NumberCLAIM NO. 2015 HCV 03989
Date31 July 2018

[2018] JMSC Civ. 113

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Laing J.

CLAIM NO. 2015 HCV 03989

Between
Tanisha Perry
Claimant
and
The Commissioner of Police
1 st Defendant

and

The Attorney General of Jamaica
2 nd Defendant

Mr Chukwuemeka Cameron instructed by Carolyn C Reid & Company, Attorneys-at-law for the Claimant

Ms Carla Thomas instructed by the Director of State Proceedings for the Defendants

Civil Procedure — Application to strike out claim — Principles to be applied

Administrative orders — Whether application for a declaration is subject to the same considerations as an application for judicial review — Whether the purpose to which the declaration will be put is a relevant consideration

IN CHAMBERS
The Application
1

By Fixed Date Claim Form dated the 24 th June 2015, the Claimant seeks a declaration that she has a legitimate expectation to be re-enlisted as a member of the Jamaica Constabulary Force as well as any and all other administrative orders that this Court may deem fit to grant.

2

By Notice of Application filed on 21 st February 2017 the Defendants seek to have the Claimant's Fixed Date Claim Form struck out as being an abuse of the process of the Court (the “Application”).

Background
3

The Claimant was a Police Officer employed to the Jamaica Constabulary Force at the rank of Detective Constable and was attached to the St. Andrew Central Police Division in the parish of St. Andrew.

4

This claim has its genesis in the decision of the then Commissioner of Police in 2011 to refuse to re-enlist the Claimant as a serving member of the Jamaica Constabulary Force.

5

The grounds for the refusal are contained in the notice regarding non re-enlistment letter addressed to the Claimant and dated 25 th January 2011 (“the Notice”). The Notice recites a series of events which resulted in the Claimant being charged on information No. 3009/2006 for uttering a forged document, namely a Jamaican Passport #A2231418 containing a US Immigration landing stamp purporting the same to have been signed by an Immigration Officer, knowing the same to have been forged and with the intent to defraud, contrary to section 9(1) of the Forgery Act.

6

On 26 th June 2007 a no order was made in the matter by Her Honour Miss J Pusey at the Corporate Area Resident Magistrates' Court at Half Way Tree. However, in the Notice it is asserted that the no order was made due to the absence of the main witness, a former employee of the United States Embassy, who had reportedly migrated. The conclusion expressed in the Notice was that the Claimant was not deemed trustworthy since she had medical certificates submitted on her behalf locally while she was actually in the United States of America and had taken efforts to cover up this act of deception by the production of her passport containing the alleged forgery.

7

Detailed evidence has been filed by the parties relating to the course of events leading up to the Notice. Nevertheless, having regard to the narrow scope of the Application, although those facts may have an impact on the merits of the Claim, I have not found it necessary to review in detail or analyse those facts in order to determine the issues that are currently before this Court.

The Defendants' submissions
8

The grounds of the Defendants' Application are as follows:

  • 1. Pursuant to rule 26.3(1) (b) of the CPR, the Court may strike out a statement of case as being an abuse of process of the Court.

  • 2. The Claim concerns the decision not to re-enlist the Claimant, which is a decision made by the Commissioner of Police.

  • 3. The claim concerns the decision of a public authority and turns exclusively on a purely public law issue.

  • 4. The claim which is solely concerned with an issue of public law ought to have been commenced by way of an application for Judicial Review.

  • 5. To commence claim which raises a purely public law issue by means of an ordinary claim is an abuse of the process of the Court.

9

It is the Defendants' submission that this Court is empowered to strike out the Claim pursuant to Rule 26. 3(1)(b) of the Civil Procedure Rules (“CPR”). In support of this contention, Counsel placed reliance on the United Kingdom House of Lords decision in O'Reilly v. Mackman [1982] 3 All ER 1124 and in the decision of the Jamaican Court of Appeal in Minister of National Security and Attorney General v. Herbert Hamilton [2015] JMCA Civ 54. It was submitted that these cases have confirmed, that in circumstances where a claim ought to have been commenced by way of judicial review proceedings, that case may be struck out as being an abuse of the process of the Court, if it is commenced otherwise.

10

Counsel for the Defendants further submitted, that, included in the protection afforded to public authorities, is the requirement for expedition in making a claim. This is contained in rule 56.3 of the CPR, which makes provisions for an application for leave to apply for judicial review to be made promptly and in any event within three months of the decision in question. In addition, such applications for leave should be granted only where the Claimant has satisfied the Court that he/she has an arguable case with a realistic prospect of success.

11

In support of the position that the Claim ought to be struck out, Counsel for the Defendants relied on the Court of Appeal decision in Attorney General of Jamaica v. Keith Lewis, (unreported), Supreme Court, Jamaica, SCCA No. 73/2005, judgment delivered 5th October 2007. In that case, Harrison J.A. in paragraph 22 of his judgment concluded that Mr. Lewis, a District Constable, ought to have availed himself of judicial review proceedings within 3 months of his effective dismissal and that his filing of an ordinary action some two years later for wrongful dismissal would amount to circumventing the correct process by recourse to the common law.

12

Counsel for the Defendants submitted that the Keith Lewis case was applied approvingly by Morrison P (Ag) as he then was, in Minister of National Security and Attorney General v. Herbert Hamilton (supra). Counsel accepted that Part 56(1) of the CPR makes provision for ‘ applications for an administrative order’ which includes applications:

  • “(a) for judicial review

  • (b) by way of originating motion or otherwise for relief under the constitution;

  • (c) for a declaration or an interim declaration in which a party is the state, a court, a tribunal or any other public body:”

However, Counsel submitted that this provision was not intended to erode the necessity of instituting judicial review proceedings in circumstances in which it should be regarded as the appropriate action to take. Counsel argued that if the provision in rule 56.1(1)(c) of the CPR is adopted in every case concerning actions or decisions taken by public authorities then it would render the provision relating to judicial review and the detailed provisions set out in the rules for the conduct of such proceedings otiose.

13

In buttressing her arguments relating to the importance of securing the sanctity of the judicial review provisions, Counsel relied on the decision of the Belizean Court of Appeal in Froylan Gilharry SR dba and Gilharry's Bus Line v. Transport Board & Ors Appeal No. 32 of 2011 (delivered 20 July 2012) and in particular on the statement of Morrison JA at paragraph 70 of the judgment where his Lordship confirmed that several of the restrictive aspects of the judicial review procedure under Part 56 of the CPR are designed to safeguard the public interest.

14

Counsel for the Defendants also relied on the local decision of Sykes J in Inspector Marshalleck v. The Inspectors' Branch Board of the Police Federation & Ors (unreported), Supreme Court, Jamaica, Claim No. HCV 1499 of 2004, judgment delivered 9 July 2004. This decision concerned an application to strike out a fixed date claim form which had been filed by an inspector of the Jamaica Constabulary Force seeking certain declarations relating to the number of police inspectors who had been elected to form the Inspectors Branch Board. At page 7 of the decision Sykes J commented as follows:

“To insist on correct procedure in respect of public bodies is not simply a question of a wrong or right approach to procedure. The rationale is found in public policy. The applicable public policy being that public bodies should be able to get on with the business of administration rather than worry about whether a claim form is going to land on their door steps. This is buttressed by the fact that the judicial review rules require the applicant to come to Court within three months of the date of the act or omission that provide the basis of the application. Again the time limit here is not one derived from any high legal principle but simply the result of the collective wisdom of the rules committee. They decided that three months is a reasonable time for the aggrieved person to act. The further removed in time from the three months expiration the application is made the greater the burden on the applicant to justify why he should be allowed to revisit an issue that has passed. Nothing is wrong with that.

Administrators are not to be kept in limbo. If it were intended to obliterate the procedural distinction between public and private law matters the rules committee would have done so. The fact that they have maintained the distinction must mean something. It could not be that they intended the courts to ignore the distinction in the name of flexibility…”

15

Counsel submitted that because of the distinction between public law actions brought by ordinary claim and public law actions brought by judicial review proceedings, each individual claim must be examined to determine whether it is permissible for the action to be brought by ordinary claim rather than judicial review.

16

Counsel argued that the...

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