The Public Service Commission v Deanroy Ralston Bernard
| Jurisdiction | Jamaica |
| Judge | Brooks JA,Simmons JA,Dunbar Green JA |
| Judgment Date | 15 January 2021 |
| Neutral Citation | JM 2021 CA 4 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2019CV00055 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Civ 2
IN THE COURT OF APPEAL
THE HON Mr Justice Brooks JA
THE HON Miss Justice Simmons JA
THE HON Mrs Justice Dunbar-Green JA (AG)
SUPREME COURT CIVIL APPEAL NO COA2019CV00055
and
Carson Hamilton and Louis Jean Hacker instructed by Director of State Proceedings for the appellants
Marc Williams instructed by Williams, McKoy and Palmer for the respondent
I have had the privilege of reading, in draft, the judgment of Simmons JA. Her reasoning and conclusions accurately reflect my own reasons for agreeing to the decision that the court made on 8 October 2020. I also agree with her conclusions in respect of the counter-notice of appeal. Courts exist to resolve disputes between parties and the reasoning of the Caribbean Court of Justice in Watson v Fernandes [2007] CCJ 1 (AJ) is apposite in this context. The court stated, in part, at paragraph [39]:
“…Justice is not served by depriving parties of the ability to have their cases decided on the merits because of a purely technical procedural breach committed by their attorneys….”
On 24 May 2019, having heard an application to strike out the claim filed by Mr Deanroy Ralston Bernard (the respondent), Henry-McKenzie J (Ag) (as she then was) made certain orders including the following:
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(i) The notice of application to strike out claim filed on 7 May 7 2019 is refused.
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(ii) The fixed date claim form filed on 26 April 26 2019, is to be treated as the application for leave to apply for judicial review.
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(iii) The hearing of the application for leave to apply for judicial review is adjourned to 18 July 2019 at 12 noon for one hour.
By notice of appeal filed on 5 June 2019 the Public Service Commission and the Attorney General of Jamaica (“the appellants”) seek to challenge those orders. The grounds of appeal are as follows:
“a. The learned Judge erred in law by finding that the Fixed Date Claim Form filed on April 26, 2019 seeking leave to apply for judicial review is not a nullity.
b. The learned Judge erred in law by finding that although an Application for Leave to Apply for Judicial Review must be by way of Notice of Application for Court Orders pursuant to Rule 56.3 of the Civil Procedure Rules, 2002, the Respondent's Application for Leave to Apply for Judicial Review by way of Fixed Date Claim Form is not fatal.
c. The learned Judge erred in law by finding that Part 26 of the Civil Procedure Rules, 2002 is applicable at the leave stage of an application for judicial review.
d. The learned Judge erred in law by finding that she has discretion under Rule 26.9 of the Civil Procedure Rules, 2002 to treat the Fixed Date Claim Form filed on April 26, 2019 as the Notice of Application for Leave to Apply for Judicial Review.
e. The learned Judge erred in law by finding that the Fixed Date Claim Form filed on April 26, 2019 is to be treated as a Notice of Application for Leave to Apply for Judicial Review.”
On 19 June 2019 the respondent filed a counter notice of appeal largely seeking an affirmation of the orders made in the court below. It states as follows:
“a. That the learned Judge was correct in treating the Fixed Date Claim Form as a Notice of Application for Court Orders pursuant to Part 26 of the Civil Procedure Rules, 2002 and/or in the alternative pursuant to Part 1 of the Civil Procedure Rules, 2002.
b. That the learned Judge was correct in finding that the substance of the application remained unaffected. It was a matter of form versus substance. The matter is one of discretion which is expressly conferred on the court and which discretion must be informed by the overriding objective which enables the Court to deal with cases justly.
c. Rule 56.3 of the Civil Procedure Rules, 2002 describes in detail the method of application for Judicial Review but remains silent on the form which the application of leave to apply for Judicial Review ought to take.
d. The only issue cognizable by or within the jurisdiction of the court was the application for leave for judicial review.
e. In order to obtain leave, the Respondent was obliged to put before the court adequate evidence to support the application.
f. The Respondent [is] obliged upon obtaining the leave of the court to file a fresh fixed date claim form for judicial review, in commencement of the proceedings pursuant to the order granting leave.”
On 16 July 2019 the appellants filed a notice of application seeking a stay of execution of the abovementioned orders (ii) and (iii). This application was considered by Sinclair-Haynes JA and was refused.
On 8 October 2020 having heard counsel's submissions, this court made the following orders:
1. “The appeal is refused.
2. The order of the learned judge made on 15 May 2019 is affirmed.
3. Costs of the appeal to the respondent to be taxed if not agreed.”
We also indicated then that we would provide our reasons in writing. This judgment is a fulfilment of that promise. Our decision on the questions arising for consideration in the counter notice of appeal was reserved.
The dispute between the parties had its genesis in the re-assignment of the respondent from his previously held post of Permanent Secretary in the Ministry of Education, Youth, and Information to that of Director General in the Ministry of Finance and Public Service.
The respondent was informed of this change in his employment by way of letter from the Office of the Services Commission dated 1 March 2019. The letter stated that the re-assignment was being done upon the recommendation of the Honourable Andrew Holness, Prime Minister, ON, MP to the Governor-General and in keeping with section 126(3) of the Constitution of Jamaica. This re-assignment was to take effect from 14 February 2019. The respondent's salary and allowances were unchanged.
On 26 April 2019 the respondent, who was aggrieved by that decision, filed a fixed date claim form in which he sought the following orders:
“(i) An order granting Leave for Judicial Review into the circumstances under which the Office of Services Commission issued letter dated March 1, 2019 reassigning the Claimant to the Ministry of Finance and the Public Service as Director General Designate;
(ii) An order staying the Execution of the directive of the Public Service Commission for the re-assignment of the Claimant to the Ministry of Finance and the Public Service as Director General Designate;
(iii) An order declaring the re-assignment of the applicant to the Ministry of Finance and the Public Service as Director General Designate unconstitutional and a nullity and of no effect on the applicant's appointment and assignment to the Ministry of Education, Youth and Information;
(iv) An order mandating the Public Service Commission to reverse its directive to re-assign the applicant and to give due expressed recognition of the Claimant as the duly appointed Permanent Secretary in the Ministry of Education, Youth and Information;
(v) An order barring the Public Service Commission from appointing any person as Permanent Secretary [in] the Ministry of Education, Youth and Information until this matter is heard and determined; and
(vi) Such further and other relief as the Court deems just.”
The grounds on which the respondent relied are as follows:
“1. The Prime Minister of Jamaica has no authority to recommend to the Governor General that the claimant who holds the office of Permanent Secretary be reassigned to the Director General Designate in the Ministry of Finance and the Public Service;
2. The Public Services Commission had a duty to review the Prime Minister of Jamaica's recommendation and the Governor General's authority to order the re-assignment of the applicant to Director General Designate in the Ministry of Finance and the Public Service;
3. Neither the Constitution of Jamaica nor the Staff Orders contemplated the tool of re-assignment being used to forcibly move a Permanent Secretary from his assigned or appointed position to a lower position or any other position in the public service;
4. Furthermore the Director General (Designate) is not recorded in the Civil Service Establishment Act as appropriated to the Ministry of Finance and the Public Service;
5. There existed no clear responsibilities, subject matter, resources and authority vested in the designation of Director General to make such a designation equivalent to the post of Permanent Secretary, which is to supervise the work of the portfolio assigned to a Minister as per the Minister's instrument of appointment;
6. The claimant's due appointment and assignment of the Education, Youth and Information portfolio cannot be undone by the actions as per Gazetted Notice, OSC Ref# C4835…19 Dated March 1, 2019 as Sections 126(3) gives the Prime Minster of Jamaica no authority to recommend the Claimant's reassignment and vests no authority of reassignment in the office of Governor General nor the Public Service Commission of Jamaica; and
7. The reassignment to the designation of Director General without cause, without due process and tantamount to a demotion given that the Ministry of Finance and the Public Service is headed by a Financial Secretary who for the purposes of the constitution is a Permanent Secretary, vide Sections 93(2) and 126(4).”
The fixed date claim form was supported by the respondent's affidavit of urgency in support filed on 26 April 2019.
The appellants responded by filing a notice of application to strike out the fixed date claim form on 7 May 2019. The application was not supported by any affidavit evidence.
The grounds on which that application was based are as follows:
(i) “the respondent failed to...
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