The Attorney General of Jamaica v Machel Smith
| Jurisdiction | Jamaica |
| Judge | Phillips JA,Sinclair-Haynes JA,Edwards JA |
| Judgment Date | 18 December 2020 |
| Neutral Citation | JM 2020 CA 156 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 96/2017 |
| Date | 18 December 2020 |
[2020] JMCA Civ 67
IN THE COURT OF APPEAL
THE HON Miss Justice Phillips JA
THE HON Mrs Justice Sinclair-Haynes JA
THE HON Miss Justice Edwards JA
SUPREME COURT CIVIL APPEAL NO 96/2017
and
Miss Tamara Dickens instructed by Director of State Proceedings for the appellants
Mrs Angel Beswick-Reid instructed by Ballantyne, Beswick and Company for the respondent
I have read in draft the judgment of Edwards JA. I agree with her reasoning and conclusion. There is nothing that I wish to add.
I too have read the draft judgment of Edwards JA and agree with her reasoning and conclusion.
This is an appeal challenging the judgment and orders of Wint-Blair J (“the judge”) made on 27 September 2017, in which she granted an order of certiorari quashing the decision of the Commissioner of Police (“the 2 nd appellant”) to dismiss Mr Machel Smith (“the respondent”) from the Jamaica Constabulary Force (“the JCF”), and granted a declaration that the respondent was, at all material times, a confirmed member of the JCF with effect from 9 September 2014, pursuant to regulation 24(6)(b) of the Police Service Regulations (“the regulations”). At the time the order for certiorari was made and the declaratory judgment was granted by the judge, the 2 nd appellant had already rescinded his decision to dismiss the respondent.
The respondent enlisted to become a member of the JCF and commenced his training on 10 September 2012. He was told that he would be placed on two years' probation, and, if his probationary period was completed successfully, his enlistment in the JCF would become confirmed effective 10 September 2014. The respondent successfully completed his period of training at the Jamaica Police Academy on 2 April 2013, and was posted at the Morant Bay Police Station in the parish of Saint Thomas. On 5 May 2014, he was transferred to the Morant Bay Criminal Investigation Bureau. On 16 May 2014, the respondent received a memorandum dated 9 May 2014 which made allegations with regard to his conduct. He responded in a memorandum, dated 20 May 2014, refuting the allegations. On 8 July 2014, he was served with a “Notice of Recommendation for Non Confirmation as a member of the JCF” dated 5 July 2014, which set out the allegations. Upon receiving the notice, the respondent sought legal advice, and his attorneys, thereafter, wrote to the Superintendent of the Morant Bay Police Station refuting the allegations. There was no response to the attorneys' letter. The date of 10 September 2014 passed without incident and the respondent was asked to proceed on duty on 11 September 2014.
On 17 September 2014, the respondent was asked to report to the Superintendent's office where he was handed a notice of dismissal dated 16 September 2014. This notice advised that he was being dismissed from the JCF with effect from 9 September 2014, pursuant to regulation 24(6)(a) of the regulations. The respondent and his attorneys wrote in response, on 30 September 2014 and 1 October 2014, respectively, asking that he be re-instated as a member of the JCF. This request proved futile.
Based on the two-year probationary period on which the respondent was placed, his enlistment in the JCF would have become effective on the 10 September 2014, pursuant to regulation 24(6)(b) of the regulations. The respondent had worked and carried out duties up to 17 September 2014 before he was purportedly dismissed.
Aggrieved by the decision to dismiss him, the respondent, on 12 November 2014, filed a notice of application for leave to apply for judicial review of the 2 nd appellant's decision. Leave was granted and, on 23 February 2015, the respondent filed a fixed date claim form seeking orders to move the decision of the 2 nd appellant into the Supreme Court for judicial review for certiorari to have it quashed, for mandamus to restore him to his position and for a declaration that he was at all material times a confirmed member of the JCF.
Subsequent to the filing of the fixed date claim form, counsel from the Attorney General's Chambers wrote to the respondent's attorneys, in a letter dated 29 February 2016, advising them of their intention to concede that “the decision of the [2 nd appellant] dated 16 September 2014 to dismiss the [respondent] from the JCF, pursuant to regulation 24(6)(a) of the Police Service Regulations, after his probationary period had expired is ultra vires”. Counsel also stated in the letter that the 1 st appellant was of the view that the respondent should be re-instated, and that it had shared this position with the 2 nd appellant.
On 25 May 2016 a letter was sent to the respondent informing him of his re-instatement with effect from 16 September 2014 and that he would receive his salary and allowances with effect from that date. It also noted that the respondent had resumed duties from 3 May 2016. The appellants' stance was conciliatory so that the matter could be resolved between the parties, as they indicated, “without further recourse to the courts”. The appellants also offered to pay a reasonable sum for costs.
Despite this “conciliatory” stance, the respondent proceeded with his claim for judicial review. The claim was subsequently heard by the judge who made orders in favour of the respondent as follows:
“1. The decision of the Commissioner of Police to dismiss the Applicant from the Jamaica Constabulary force [sic] by way of letter dated September 16, 2014 and pursuant to Regulation 24(6)(a) of the Police Service Regulations 1961 is hereby quashed.
2. A declaration is hereby made that the Applicant is and was at all material times a confirmed member of the Jamaica Constabulary Force with effect from the 9 th day of September, 2014 pursuant to Regulation 24(6)(b) of the Police Service Regulations 1961.
3. No order as to costs.”
In an oral decision, which was reduced to writing, the judge highlighted the purpose of judicial review which, she said, was to ensure that the functions of public authorities are undertaken according to the law and that they are held accountable to the law. She referred to the fact that the 2 nd appellant had reversed his decision and that the respondent had been re-instated and was now an enlisted member of the JCF. The judge, having considered the orders sought in the fixed date claim form, went on to state, at paragraph [3], that:
“… The first two remedies sought appeared to be otiose in circumstances where both sides are in agreement that the Applicant has been re-instated with effect from September 16, 2014 and that he resumed duties on May 3, 2016. The Applicant was also compensated with salary and allowances with effect from September 16, 2014.”
The judge, however, noted that the fixed date claim form sought an award for damages and went on to state, at paragraph [5], that:
“… A claim for damages may be included in a claim for judicial review in addition to a prerogative remedy. Damages may only be awarded if they could have been awarded in an ordinary claim, namely, a claim for a private law cause of action. The judicial review procedure does not create any new right or remedy in damages, if a claim for damages exists in private law, it may, in appropriate cases, be claimed in the judicial review procedure alongside the claim for a prerogative or other remedy to vindicate a public law right.”
She held at paragraph [6] of her judgment that:
“The Applicant has to satisfy the court that damages arising from any matter to which the claim for judicial review relates could have been awarded in an ordinary claim …”
The judge referred to the Civil Procedure Rules (2002) (“the CPR”), Part 56 and specifically rule 56.10 and made the following observations at paragraphs [7] and [8]:
“[7] It is clear that an applicant on an application for an administrative order may include a claim for any other relief or remedy which arises out of or is related or connected to the subject matter of the application.
[8] In Rule 56.10(2) the powers of the court are set out and paragraph (a) provides that damages may be awarded subject to the inclusion in the claim form of a claim for any such remedy arising or apparent on the facts set out in the claimant's affidavit or statement of case to justify the grant of such an award and that at the time the application was made, the claimant could have issued a claim for such a remedy.”
The judge referred to the case of Berrington Gordon v The Commissioner of Police [2012] JMSC Civ 46, and the statements of principle enunciated by Sykes J (as he then was) regarding a claim for damages in an administrative action. She went on to hold at paragraph [10]:
“[10] There is no evidence before this court to support a finding of malice, spite or ill-will on the part of the decision maker, who was the Commissioner of Police in respect of the decision. In fact, the Commissioner of Police has reversed the previous decision and accordingly the orders sought arguably have become unnecessary.”
The judge then went on to observe at paragraph [11] that:
“[11] The most difficult problem posed by this application was to decide what remedy was appropriate and further what the [sic] form of declaration should be made so that its practical consequences are certain. So far as it lies within the court's power, it should, be made clear to the parties what their respective rights and obligations are in consequence of any order to be pronounced. There is no doubt in my mind that the applicant has suffered a grievous wrong. It should not be beyond the power of the courts to provide a suitable remedy.” (Emphasis added)
The judge held that the...
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