WS 1: availability of JR

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1 Introduction:

A) Introduction

Admin law is

The law relating to the control of government power, to protect individual rights.

Rules designed to ensure that the administration effectively performs the tasks assigned to it.

Ensuring governmental accountability, and fostering participation by interested parties in decision -making process

No definite meaning but evolves from the Westminster style constitution

Its not about rights but rather wrongs and the abuse of power

Examine principles that underpins AL/JR in Carib

Examine common law principles applicable

Examine legislative provisions relating to the duo

B) JR Proceedings

Tenable in HC/SC

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Bolstered in post independence CC by BR-ability to seek redress for impunity

Countries with specific legislation T&T (JRA), Barbados (AJA), St Lucia

Brought against arbitrary actions

Public authority/government (people endowed with coercive power)

Benefits of having statute for JR: (BACONGO: integrity to the system, clarity and easy access to a formalized process as oppose to relying on the shifting landscape of the English law)

HC has supervisory jurisdiction over the public authority this include:

Principled methods of controlling the manner in which decisions are made

Source of decision making power statutory /CL

Revision of the process of decision making and not the imposition of the courts opinion on the public authority where its decision is concerned (Leacock v AG Barbados – courts cannot substitute there view on that of the legal competent authority)

C) JR :process or merits?

JR is concerned with the process of decision making and not the merits of the decision (Leacock v AG Barbados )

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Merits of decision should be left to an appeal

Court operates in a supervisory capacity over inferior courts and public authorities

D) JR and Appeal:

Merits of decisions left to an appeal

HC/SC is not a public authority but has supervisory jurisdiction over them

Competent public authority should be made to make decision and the courts should not impose its views (Leacock v Barbados)

Distinction between JR/Appeal (RE Jack Tar Village – one checks process of decision making the other checks merits)

Pay attention to the paper from De Las Bastide.

2. APPLYING FOR JR (AJA 3(1); JRA 5(1)

A) Introduction:

Reliant on legislation (Barbados AJR, T&T JRA, Civil procedures act; CO Williams Construction v Blackman)

Act set out the process, who qualifies, grounds, claimants alternative grounds and even for persons who may not be able to afford it.

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After leave have been granted, originating motion filed for substantive hearing or originating summons if the court is on vacation (BACANGO)

Where there are no JRA, the Civil procedure act is used.

B) Leave to the Court (JRA s 6)

Seeking the courts permission to determine whether the matter has merits/applicant having sufficient standing

Barbados AJA No leave required (CO Williams construction v Blackburn – application should be assessed on the basis of the content capacity and not on the approach given that Barbados does not have a leave requirement; Lloyd v AG Barbados –English courts require that there be leave however, Barbados AJR has no requirement which must have been intended to fetter the adjudication of high court complaints)

Purpose of leave: To shield the court from hopeless/groundless proceedings

Lapse of time (Golding V Simpson Miller – no filing of fixed date after leave granted – court will not extend, goes against the rules and is a waste of the courts time.

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Question of appeal for refusal of JR leave application (Kemper Reinsurance v MOF: CA has the right to hear all appeals jurisdictionally, distinguish between appeal and jra, unlikely that such an appeal will be denied because the merits are different-examines the legality of the process whereas appeals examines merits of decision.

C) Misrep & Non Disclosure

Adjudicated at the leave stage and otherwise referred to as a duty of candour

Submission of application with non disclosure, may be cause for matter to be set aside

Effects of non disclosure (Graham V COP – claimant is deemed to have omitted to disclosure a provision that governed the Police subsequent actions; Rajacoomar v Magistrate Alert – untruthfulness mode of non disclosure)

D) Delay

T&T JRA s 11 & Barbados AJA s 8

Application must be made promptly or within three months

Date is the date that the applicant became aware of grounds. Egafter a judgment

Court may grant extension for good and sufficient reason

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Court may deny leave

For delay in making the application

Application causes substantial hardship, prejudice to other people

Detrimental to good administration

Evelyn v Peterson shows the effect of delay where a defendant isguilty in HC of not setting a fixed date for a substantive orderbecause of another order by a trial judge that placed him in aposition under a continuing duty to comply

No hard and fast rule of what constitute a delay except for good and sufficient reason that will be determined by the court (Greaves-Smith v PSC- claimant matter was not lodged until 2 years 8 months and it was declared to be an undue delay; Balwant v Stat Authorities – although there was a delay the HC did not make a prononcement on the extension of time but granted leave thus it is deemed to have inferred or implied the extension; Lloyds v AG Barbados – case considered whether there was undue delay given the fact that the claimant was not given time in the first instance to clear her name of an allegation.

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E) amendments:

Left to the prerogative of the court (BACONGO)

Applicable at leave stage

Must not prejudice or cause injury to the next party

May be us to determine contention

F) Cost

where process has not been followed

Where litigation is against the government and there has been no express authority to pay cost (Sandiford v PSC – litigation against CJ without authority to pay cost)

Discontinuation of proceedings, party responsible pays the cost (CaribInfo access ltd v WASA)

G) Parties

Who is being pursued for JR

Hong Ping v PSC: action against PSC but decision was made by PSAB, too much time has passed cannot correct the wrong)

Person aggrieved by a decision can sustain an action (AJA 6 (a)(b); JRA 5(2)

How to determine a person aggrieved – is he directly affected by the decision made, does it prejudicially affect his interest (Persuad v Nicholas )

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Forbes v AG Jamaica-wrong party was named as the respondent, should have been filed against the crown and not the AG.

Third parties are allowed to join action if 1) they are affected (Persaud v Nicholas) 2) intervener if granted permission eggovernment department.

H) Incorrect procedure

JR brought against those with coercive powers eg, those who perform statutory functions when making a decision

Private contract does not have statutory function – not a subject of JR

Court determines the nature of the matter using certain rules (Clark v AG T&T – incorrect process was used, claimant filed a writ of summons in seeking JR instead of originating motion).

3) Claimants and standing

A) Introduction

Persons with sufficient interest (T&T JRA s 5(1)

Persons whose interest are adversely affected by a decision action (AJA 6 (a)(b); JRA 5(2)

Must have some relationship with the matter (Locus Standi)

3rd parties

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B) Locus Standi

Any person whose interest is: adversely affected by the decision, administrative act, omission, or some public interest (Barbados AJA s 6; T&T JRA s 5(2)

Civil procedures rules applies in jurisdiction where there are no JR Act

Contractual relationship outside of private law (Pindling v Bahamas Electrical – private person cannot bring a n action for the prevention of public wrong. Does not have sufficient interest)

Determining sufficiency of interest (Spencer V AG A&B new approach– 1) what is the substantive issue raised in the application; 2) nexus between the matter and the applicant 3) does it accord with good reason)

Sufficient interest may be interpreted generously so that a person not having it may still be granted leave if it is justified for public interest. (Graham v COP-case where traffic restrictions were imposed illegally and it is deemed that the COP did not have sufficient interest. (Ventose does not agree with this judgment on the grounds that the COP would have had to implement the regulations; )

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Francois v AG- public interest: deemed that the claimant did not have sufficient interest to challenge the MOF who guaranteed a loan outside of the law)

Locus standi had gone through change from the original regime:

Threshold issue

Usually decided before substantive issue raised

New approach (Spencer v AG A&B- accords with good reasoning)

Liberal approach: Does the case have merit(Francois v AG: deemed not to have merit and so he did not have standing; Re Clegghorn- a former ban employee impugning decision on the grounds of fraud should have standing even though sufficient interest not proven –decide on the merits)

C) Interveners JRA 14

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Parties interested in joining the matter

Court has discretion to admit them (Allyene v Singh –court has wide discretion)

They may be adversely affected by the decision –subscribe to the same standard

D) Public Interest Litigants (PIL) (Trinidad JRA s 5 & 7;Barbados AJA s6)

Courts permit application if

Adversely affected by the decision

Justifiable

Persons who not a busybody (having too much time on there hands)

May even be granted if there is not sufficient interest providing it is public interest.

Factors considered by the courts:

Need to exclude the busy body12

Importance of vindication of the rule of law

Importance of issue raised

Genuine interest of applicant in the matter

Expertise of applicant and ability to present case

Nature of decision and relief sought

Note:

Trinidad attempt to repeal the PI provision because of a flurry of litigation (T&T Civil Rights Association v AG T&T – was not permitted because bill attempted to remove the jurisdiction of the court.

E) Capacity

Distinction between Locus standi and capacity

LS: having sufficient interest or being adversely affected by the decision (Barbados AJA s6)

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Capacity: legal capacity to commence and continue proceedings – must have legal personality to act egcompany being a separate legal entity (AG SKN v Lawerence)

F) Companies: (AG SKN v Lawrence – supports the points below) Separate legal entity Shareholders are treated different Raising issue depends on who has been impugned:

shareholders or company 4 Defendants and Decision Subject to JR AJA 3(1)(2);

JRA 5(1) A) Introduction Is the (public) body subject to JR? What is meant by a decision subject to JR? Is the defendant a public authority

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B) State Institutions:

The following are subject to JR if they breach CL rights or act UV

Consist of:

Legislature – law makers

Executive – policy makers ( by extension public service, statutory bodies, implementers of policy) (CO Williams v Blackburn – Cabinet acted unlawfully in taking into account an irrelevant consideration in the process of awarding a contract)

Judiciary (Maharaj V AG T&T- member of judiciary acted contrary to rules of NJ)

Bodies entrusted with governance ( statutory function, coercive powers)

TIPS determining whether the institution is subject to JR:

1) ID who makes the decision

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2) Are they performing some statutory function

C) Public Authorities:

1) Cabinet:

Refers to bodies that perform statutory function:

Cabinet empowered by Constitution (Barbados Constitution s24)

Note not all decision are reviewable (ouster clause; prerogative powers) (CO Williams v Blackman–cabinet had no prerogative powers here policy making body, performs statutory function- subject to JR)

Executive members (not limited to cabinet members. See previous slide)

How about where a committee is appointed by cabinet (Galbarangsingh – appointed to perform public duties in public interest subject to JR)`

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Amenable to JR

Ministers considered in the plural and can mean cabinet (CO Williams v Blackman; ALL Trinidad Sugar & General Workers Trade Union v Minister of Planning and mobilization – was the minister’s decision to form a subsidiary subject to JR – yes because a public law act and he answers to parliament and had prerogative powers-housing scheme)

3) Permanent Secretaries:

They are public functionary

Public law consequences flow from there decision (Hector v AG A&B – decision of an acting PS was subject to JR. Test: nature and purpose of functions must be considered.

4) The decision maker

Must understand the law that governs his decision

Must be based on facts17

Minister held responsible for decision ultimately (James v MOE – ministers decisions are carried out by functionaries and he is constitutionally responsible)

D) Amenability to JR

Is the matter one of public/private law

Test:

what's the source of the power (statute, subordinate legislation, prerogative or CL) (Jamat Musileem-COPentered and remained in his premise. Test was applied; Barbados Cricket Association v Pierre did not pass the test because although enacted by legislation the source of the power was the regulations that everyone had agreed to)

What is the nature of the power (public function that leads to public consequences in the event of non compliance – same cases as above)

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C: Statutory Corporations

What extent will they be subject to JR in the awarding of contract

Was the decision made of a public element

NH International Caribbean Ltd v Urban development Corporation – function test must be applied to determine if the grant of tender was subject to JR (source, nature of the power, functions to be exercised – fulfilled the test)

Industrial Risks Consultant v Petroleum Co TT they were subject to judicial review because of the nature of the duties but the award of contract was a separate matter.

TAKE NOTE: SC subject to JR if the function test is fulfilled and it results in public law consequences

F) Public Service Commission:19

Subject (PSC)to review given that they perform constitutional functions (Thomas v AG TT)

G) Supervisor of Insurance

SI subject to JR (Narsham v SI – prohibited from entering insurance and the decision was challenged)

H) Chief Immigration officer:

Subject to JR. Barbados Aja intends that anyone who makes a decision will observe natural justice (Sparman v Greaves – person whose permit to reside and work was revoked)

I) Employment

Must have statutory underpinning, mere dismissal/ discipline does not suffice: (Ali v North West Regional Health Authority – whether to end an employee contract was subject to review – contract had statutory underpinning an therefore subject to review)

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J) Educational Institutions

For public schools it’s a question of whether they acted lawful in there capacity (Exp Mignot: decision to remove employee from a post challenged. No public law element)

K) DPP

1) Introduction

Powers given to DPP

Amenable to JR although courts are reluctant to do so because:

DPP expected to do a balancing act considering the political and public interest, facts, competence of the court to assess the merits

Availability of evidence

Avoidance of delay in the court system

2) Scope of the powers:

Start, stop, intervene, continue proceedings against any person Bze Constitution 50(2)©

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3 Are the decisions subject to JR:

Tappin v Lucas: effect of exercising powers amounts to administrative act, thus subject to JR

Tapper v DPP Jamaica: DPP cannot just do whatever they want

4) JR of the decisions of the DPP

Mohitt v DPP Mauritius: confirmed decision was reviewable as the decisions must be exercised within constitutional limits. If:

In excess of constitution

Not from an independent mind decision was fettered

Bad faith

Abuse of process

Rigid policy fettering decision

L: Circuit Court:

forms of public authority subject to JR (Forbes v AG Jamaica

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TUTORIAL 31.1.13 p66 read of cases 5) Exclusion of JR: A) Introduction

May be excluded: Because of an ouster clause Within the discretion of the court JR not a right in all circumstances Existence of alternative remedies

B) Discretionary remedy CL controlled courts gives remedy of certiorari JR discretionary and initiated by way of leave (except Barbados AJA,

no leave necessary) Factors considered in granting leave: alternative remedies; all

remedies are discretionary Illegality present – no relief Counter prevailing interest – no relief (Lloyd v AG Barbados- Judy

Lloyd had suffered harm so she had to be compensated, there would be no detriment to good administration by granting relief)

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C) Non Justiciabilty (NJ)

1) Introduction

Consideration of the role of policy and how far should the court go whereas:

Policy decisions

Actions of heads of state (Re Blake: head of state should not devolve certain sensitive information-perogative powers-NJ)

Treaty provisions

National security issues

Political questions

Alternative remedies

2) Policy Decisions

Executive determines policy (HMB Holdings v Cabinet A&B-land required for public purpose and legislated is not justicibale)

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Subject to JR if acted contrary to natural justice

3) Actions of the Executive

Head of state can use perogative powers – NJ (Re Blake; Office of PM, RE TT – PM not calling elections was a political question – NJ)

4) National Security/ ) Public Interest Considerations: AJA 6(b); JRA5(2)(b); 7

Generally not justiciable, but must be genuine

Must emanate from a Minister (Olivera v AG A&B _ Immigration office indicated that applicant was being deported for national security reasons, IO no sufficient evidence of a Minister and it must be genuine)

overwhelming public interest court may grant request (Nagles v Superintendent of Prison: Prisoner in maximum security with death sentence criminals – court determines SP need not disclose information because of national security reasons)

5) Military and defence force:/E: alternative remedy JRA 9

Internal workings NJ (Young v Chief of Staff Barbados Defence Force – court should not intervene, the act has all available remedies) (alternative remedy)

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D) Abuse of process:

Courts process is not allowed to be abused (Ayers v AG TT: claimant seeking retroactive promotion after four years passed – JRA TT s11 undue delay)

F) Dispute of fact:

Evidence must be presented to support that the adverse decision affected you.

Factual basis must be established (Cove v PM Bahamas – acquisition of certain lands but no clear decision – no evidence provided that he was not heard, but evidence that the objections had been viewed)

G) Delegated Legislation

generally not subject to review unless the subject matter is reviewable (Nutrimex feed v Manning TT: delegated legislation may be looked into only in exceptional circumstance – court does not intervene in Parliament)

H) Improper forum

Court limited to test process and not merit, tribunal may be better suited (Cable Bahamas LTd v PUC: issues of a technical nature, court not so skilled, tribunal better suited

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I) Prematurity

Disputes must be genuine and a decision taken (Mackintosh v Police Service Commission TT: claimant applied for leave because he was not promoted to inspector except no decision had been taken in that regard).

J) Public Interest Considerations: AJA 6(b); JRA5(2)(b); 7 see earlier slide

K) Ouster Clauses:

Can be statutory or constitutional

Generally to oust the jurisdiction of the court to enquire into the decision making process of administrative authorities

May be reviewed where its jurisdiction have been breached

Criticism: Parliament makes legislation that are judge proof

Stops democracy of the law in respect of separation of powers doctrine

2) Statutory ouster clauses:

Clause that appears to confer final powers on PA

Court can intervene where they have acted UV,(error of law/invalid decisions)

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Finality clause to protect bodies from review, however not conclusive (AG TT v Ryan courts may intervene where invalid or excessive jurisdiction, operate outside natural justice

3) Constitutional Ouster Clause

Usually found in constitutions and fetters the discretion of the court unless parties acts in excess of jurisdiction ( concerns head of states etc) (Re Blake: constitution precluded court from inquiring into the exercise of GG – prerogative powers)

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