Viralee Bailey-Latibeaudiere v Minister of Finance and Planning and Others

• Jurisdiction: Jamaica
• Judge: Morrison JA,Phillips JA,Mangatal JA
• Judgment Date: 13 February 2015
• Neutral Citation: JM 2015 CA 24
• Docket Number: CIVIL APPEAL NOS 76 AND 87/2013 MOTION NOS 7 AND 8/2014 CONSOLIDATED WITH MOTION 11/2014
• Court: Court of Appeal (Jamaica)
• Date: 13 February 2015

[2015] JMCA App 7

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Before:

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

The Hon Miss Justice Mangatal JA (AG)

CIVIL APPEAL NOS 76 AND 87/2013

MOTION NOS 7 AND 8/2014

CONSOLIDATED WITH MOTION 11/2014

Between

Viralee Bailey-Latibeaudiere

Applicant

and

The Minister of Finance and Planning and the Public Service

1st Respondent

and

The Financial Secretary

2nd Respondent

and

The Public Service Commission

3rd Respondent

and

The Attorney General of Jamaica

4th Respondent

Between

The Minister of Finance and Planning and the Public Service

1st Applicant

and

The Financial Secretary

2nd Applicant

and

The Public Service Commission

3rd Applicant

and

The Attorney General of Jamaica

4th Applicant

and

Viralee Bailey-Latibeaudiere

Respondent

Hugh Wildman instructed by Hugh Wildman and Company for the applicant Viralee Bailey-Latibeaudiere in motion Nos 7 and 8/2014 and the respondent in motion No 11/2014

Mrs Nicole Foster-Pusey QC, Solicitor General , Miss Carlene Larmond and Miss Tamara Dickens instructed by the Director of State proceedings for the respondents in motion Nos 7 and 8/2014 and the applicants in motion No 11/2014

CIVIL PROCEDURE - Judicial review - Application for leave to apply for - Whether threshold test required for grant of leave for judicial review - Whether certiorari against Minister - Termination of contracts of public service employees - Disciplinary hearing/procedure pursuant to the Public Service Regulations - Whether discretionary bar arose - Whether injunctive relief applicable - Whether matter of public or general importance and falls within the Civil Procedure Rules 2002, Rules 56.3(1),(2),(4), 56.4(1),(2),(3), 56.4(12) and 56.6 - Constitution of Jamaica, S. 110(1)(a) - Application refused

Morrison JA

1 I have read in draft the reasons for judgment of my sister Phillips JA. I agree with her reasoning and conclusions and have nothing to add.

Phillips JA

2 Motion Nos 7 and 8/2014 were filed by Viralee Bailey-Latibeaudiere (Latibeaudiere) against the Minister of Finance and Planning (the Minister), the Financial Secretary (FS), the Public Service Commission (the Commission) and the Attorney General (AG). Latibeaudiere sought conditional leave to appeal to Her Majesty in Council from the decision of the Court of Appeal in respect of SCCA Nos 76 and 87/2013, delivered on 30 April 2014. Motion No 11/2014 was filed by the Minister, the FS, the Commission and the AG, also seeking conditional leave to appeal to Her Majesty in Council from the decision of the Court of Appeal in respect of SCCA No 87/2013 delivered on 30 April 2014. The reasons for the judgment in both appeals were delivered on 9 June 2014. The decisions are set out later in this judgment. The applications were made pursuant to either sections 110(1)(a) or 110(2)(a) or both, of the Constitution of Jamaica. On 22 July 2014 we heard arguments on the applications and on 24 July we dismissed all three motions. We made no order as to costs and promised at the time to put brief reasons in writing in due course. These are our reasons.

Background

3 These motions all arise from an application for leave to apply for judicial review made by Latibeaudiere, in circumstances where she had held the position of Commissioner General Tax Administration for Jamaica under a three year contract of employment, which she entered into on 7 July 2011, but which was made effective 1 May 2011. The facts herein set out are thoroughly summarized in the judgment of Skyes J and are gratefully reproduced here.

4 Latibeaudiere had been appointed to the above post under section 125(1) of the Constitution of Jamaica by the Governor General acting on the advice of the Commission. Although there had been no allegation of impropriety against her, or any charges of incompetence or inefficiency, and although no hearing had been convened to determine whether she was suitable for the post, she contended that on 28 January 2012 the FS indicated to her that her contract would be terminated. She later received a letter informing her that she was to proceed on 10 days vacation leave and thereafter arrangements would be made for the termination of her contract of employment. She was later transferred to the post of Commissioner General Ministry of Finance and Planning and the Public Service, a post that had not existed in February 2012. Negotiations took place. They were unsuccessful but the situation continued for 17 months, when she received a letter dated 10 July 2013, advising that the Ministry would be terminating her contract with effect from 31 July 2013.

5 She applied for an injunction restraining the defendants from terminating her contract of employment, which was granted by Campbell J on 26 July 2013, later extended by Hibbert J, and then set down for an inter partes hearing with the application for leave to obtain judicial review.

6 The application for judicial review sought several declarations, and administrative orders namely: against the Minister and FS that they were not empowered to terminate her contract; against the FS that she could not lawfully transfer Latibeaudiere to any other position unless an equivalent one and for good reason; that Latibeaudiere was the only person who could lawfully exercise the powers of Commissioner of Tax Administration and all actions taken without her consent and approval would be null and void; orders for certiorari against the Minister and FS quashing the decision to terminate her contract and to transfer or reassign her from her substantive post; orders of prohibition restraining the respondents from terminating her contract without following lawful process as set out in the Public Service Regulations, and an order of mandamus compelling the Commission to act according to law, and advise the Minister and the FS as to the propriety of terminating Latibeaudiere's contract of employment and/or transferring or reassigning her to another post.

7 The interim and interlocutory injunctions sought were against the Commission restraining it from making any recommendations to the Governor General concerning the filling of the post of Commissioner General, Tax Administration Jamaica until the issues were determined by the Supreme Court and a permanent injunction restraining the respondents from terminating Latibeaudiere's contract without following the applicable law relating to the determination of employment contracts of public officers.

8 Those applications for injunction and for leave to proceed to judicial review, came before Sykes J on 23 August 2013 and in a typically comprehensive judgment, the learned judge dealt with the test for leave to apply for judicial review, as laid down in Sharma v Brown-Antoine [2006] WCPC 57; WIR 379, and the law in relation to the termination of a contract for a fixed term in respect of a public officer before the natural expiry date of the same. The learned judge also dealt with the bases for opposition to the application, namely the detriment to good administration, the availability of an alternative remedy, the question of legitimate expectation, and whether the injunction previously granted ex parte should be dissolved. Sykes J granted the application for leave to proceed to judicial review, and the application for the injunction until further order, or until the matter was heard and determined by the Supreme Court.

9 The learned judge also ordered that the sum of $12,425,789.18 which had been paid by the Minister to Latibeaudiere representing a ‘buy out’ of the remainder of her contract, which Latibeaudiere had objected to, was to be returned by Latibeaudiere to the Minister by way of personal cheque, and was to be accepted by him. In compliance with this order the sum was duly returned to the Minister.

10 On 18 September 2013, 25 days after having been given leave to apply for judicial review, Latibeaudiere filed a fixed date claim form. On the following day, 19 September 2013 when the substantive matter came up for hearing before Sykes J, the Minister took the preliminary point that the fixed date claim form having not been filed within 14 days of the grant of leave as required by rule 56.4(12), the leave had lapsed, and the fixed date claim was therefore ineffectual.

11 Sykes J did not agree with this objection. He stated that the leave to apply for judicial review having been granted on 23 August 2013 during the long vacation, the time for filing the fixed date claim form did not begin to run until 16 September 2013, when the Michaelmas Term began. He therefore held that the fixed date claim form had been filed in time and dismissed the preliminary objection. He however, granted leave to appeal.

12 The notice of appeal in SCCA No 87/2013 filed on 22 October 2013, by the Minister, FS, the Commission, and the AG against Latibeaudiere related to the challenge against the order made by Sykes J granting leave to proceed to judicial review, and the notice of procedural appeal, in SCCA No 76/2013, filed 1 October 2013 between the same parties, related to the challenge against the order of Sykes J dismissing the preliminary objection. Morrison JA, with whom the other members of the court agreed, dealt comprehensively with the eight grounds of appeal filed in respect of SCCA No 87/2013. He referred to the threshold test required for the grant of leave for judicial review, the issue of whether certiorari lay against the Minister, questions relating to the termination of contracts of persons in public service employment, having been given notice in keeping with the provisions of the contract, or/and with compensation to the employee in full for the entire remaining period of the contract, and or by disciplinary/hearing procedures pursuant to the public service regulations (see McPherson v The Minister of...