Powell v Att Gen

• Jurisdiction: Cayman Islands
• Judge: (Foster, Ag. J.)
• Judgment Date: 05 June 2009
• Court: Grand Court (Cayman Islands)
• Date: 05 June 2009

Grand Court

(Foster, Ag. J.)

POWELL and ROWE

and

ATTORNEY GENERAL

Mrs. M. Facey-Clarke for the plaintiffs;

Mrs. V. Ellis for the Attorney General.

Cases cited:

(1) Bazie v. Att. Gen. (Trinidad & Tobago)UNK(1971), 18 W.I.R. 113, referred to.

(2) Kruger v. Governor, 1997 CILR 73, considered.

(3) R. v. Home Secy., ex p. Begum, [1990] Imm. A.R. 1; [1990] C.O.D. 107, dicta of Lord Donaldson, M.R. applied.

(4) R. v. Home Secy., ex p. Doorga, [1990] Imm. A.R. 98; [1990] C.O.D. 109, dicta of Lord Donaldson, M.R. applied.

(5) Smith v. Commr. of Police, 1980–83 CILR 126, considered.

Legislation construed:

Grand Court Rules 1995, O.53, r.3: The relevant terms of this rule are set out at para. 8.

Administrative Law-judicial review-leave to apply-discretion to hear submissions from respondent on ex parte application for leave-if serious defects alleged in application (e.g. whether involves private or public matters) contrary to overriding objective of Grand Court Rules if not heard at earliest stage in proceedings-should be clear, determinative submissions not justifying prolonged hearing

The plaintiffs sought leave to apply for judicial review.

The plaintiffs sought judicial review of the decisions of the Director of the Public Works Department not to reinstate them as employees and not to provide them with a written decision, transcript of the hearing or copies of the affidavits used to obtain search warrants against them. The plaintiffs named the Attorney General as defendant to the proposed application. At the start of the hearing of the plaintiffs” application for leave, counsel for the Attorney General appeared and asked to be heard on the plaintiffs” application.

The plaintiffs objected to the defendant being heard on their application since (a) O.53, r.3 of the Grand Court Rules required an application for leave to be made ex parte and this should be followed; and (b) that any submissions that the defendant wished to make should be made at the inter partes hearing that would follow if leave were granted.

The defendant accepted that he had no right or entitlement to be heard at this stage but submitted in reply that (a) the court had discretion to hear an interested party even at this initial stage; and (b) it should be exercised in his favour here since there were significant problems, both procedural and substantive, with the plaintiffs” applications-notably over the appropriateness of judicial review given the uncertainty over whether the Director was exercising a public or private function-and it would both be best for the court to consider them now to save the time and cost of a further inter partes hearing and would not be prejudicial to the plaintiffs to adopt this course.

Held, allowing the defendant”s submissions to be heard on the plaintiffs”ex parte application:

The court had a discretion to hear submissions from the defendant on an application for leave to seek judicial review and in these circumstances it would be exercised to allow the putative defendant to make representations at the hearing of the application. When interpreting the requirements of the Grand Court Rules, the court would have regard to its overriding objective to enable the court to deal with every cause or matter in the most just, expeditious and economical manner. This would not entitle the court to interpret O.53, r.3 contrary to its clear meaning but in the circumstances of this case-in which the proposed defendant had informed the court that he wished to submit that he had been wrongly named as the defendant and that there were other serious problems with the application, including the issue as to whether the Director was exercising a public or private function and therefore as to the appropriateness of judicial review-it would be contrary to the overriding objective if these submissions were not heard at the earliest stage in the proceedings. It would not be justified to have a prolonged and detailed hearing at this stage but if there were clear, determinative points then the court was entitled to exercise its discretion to hear them. As there would be no prejudice to the plaintiffs in doing so and it would assist the court in determining whether leave to proceed should be granted, the submissions could therefore be heard (paras. 18–21).

1 FOSTER, Ag. J.: This matter concerns the procedure on an application by a plaintiff for leave to apply for judicial review and in particular whether on such an application, which the Grand Court Rules require to be made ex parte, the judge has a discretion to hear submissions by the putative defendant to the proposed application for judicial review and, if so, in what circumstances such discretion should be exercised.

Background

2 On October 30th, 2008, an application was filed on behalf of the plaintiffs for leave to apply for judicial review. The decision in respect of which the plaintiffs sought judicial review was a decision of the Director of the Government Public Works Department (‘PWD’) not to reinstate the plaintiffs, who were employees of the PWD, as evidenced by letters from the Director dated July 15th, 2008. The plaintiffs also sought review of the decision of the Director not to provide the plaintiffs with a written decision and/or transcript of the hearing between the plaintiffs and the defendant (presumably meaning the Director) on September 4th, 2008. That meeting related to the plaintiffs” employment status. The plaintiffs also sought relief in respect of the decision of the Director of the PWD not to provide the plaintiffs with copies of the affidavits provided to the police in support of the obtaining of search warrants by the police to search the plaintiffs” homes on September 21st, 2007, in connection with a police investigation into certain activities of the plaintiffs in the course of their employment by the PWD. The plaintiffs” application for leave named the Attorney General (‘on behalf of the Public Works Department and the Royal Cayman Islands Police Department’) as the defendant and therefore as putative defendant to the proposed application for judicial review.

3 The plaintiffs” application for leave to apply for judicial review was listed for hearing before me on December 3rd, 2008 as an ex parte application. Having reviewed the plaintiffs” application and their supporting affidavits over the preceding weekend, at my request my secretary wrote on December 2nd, 2008 to counsel for the plaintiffs as follows:

‘The judge received your bundle but asked me to email you the following:

“There is an obvious issue whether the Director of PWD was exercising a public or a private function in relation to the applicants” contracts of employment. Only if it was a public function is judicial...