Re Fedele

• Jurisdiction: Cayman Islands
• Judge: (Collett, C.J.)
• Judgment Date: 01 September 1988
• Court: Grand Court (Cayman Islands)
• Date: 01 September 1988

Grand Court

(Collett, C.J.)

IN THE MATTER OF FEDELE

P. Lamontagne, Q.C. and T. Shea for the applicant;

A.S. Smellie, Principal Crown Counsel, for the respondent.

Cases cited:

(1) Australian Communist Party v. Australia (Commonwealth)UNK(1951), 83 C.L.R. 1; dictum of Dixon J. applied.

(2) Benn, ReUNK(1964), 6 W.I.R. 550, followed.

(3) Commercial Cable Co. v. Newfoundland Govt., [1916] 2 A.C. 610, considered.

(4) Dilbert v. Public Service Commn., 1988–89 CILR 33, followed.

(5) Eleko v. Nigeria (Officer administering Govt.), [1931] A.C. 662; [1931] All E.R. Rep. 44, considered.

(6) Hill v. Bigge(1841), 3 Moo. P.C.C. 465; 13 E.R. 189, considered.

(7) Hochoy v. N.U.G.E.UNK(1964), 7 W.I.R. 174, considered.

(8) Maritime Bank of Canada v. New Brunswick (Receiver Gen.), [1892] A.C. 437, considered.

(9) Musgrave v. PulidoELR(1879), 5 App. Cas. 102, considered.

(10) R. v. South Australia (Governor)UNK(1907), 4 C.L.R. 1497, followed.

(11) R. v. Toohey, ex p. Northern Land CouncilUNK(1981), 151 C.L.R. 170; 38 Aust. LR 439, considered.

(12) Teh Cheng Poh v. Malaysia (Public Prosecutor), [1980] A.C. 458.

Legislation construed:

Caymanian Protection Law, 1984 (Law 24 of 1984), s.36(g):

‘The following persons, not being persons of Caymanian status, are prohibited immigrants-

. . .

(g) any person who, from information or advice which in the opinion of the Governor is reliable information or advice, is deemed by the Governor to be an undesirable inhabitant of or visitor to the Islands . . . .’

Caymanian Protection-immigration-undesirable inhabitant-certiorari not to lie to challenge Governor”s declaration under Caymanian Protection Law, 1984, s.36(g) that person undesirable inhabitant

The applicant applied for an order of certiorari to bring up and quash a decision of the Governor by which he was declared an undesirable inhabitant of the Cayman Islands.

The applicant, a non-Caymanian resident in the Islands, was declared an undesirable inhabitant by the Governor acting upon the advice of the Executive Council in accordance with the Caymanian Protection Law, 1984, s.36(g). He applied for an order of certiorari to bring up and quash the Governor”s decision. The Crown raised a preliminary objection that certiorari could not issue against the Governor acting in his capacity as Her Majesty”s representative in the Islands.

The applicant submitted that notwithstanding the Governor”s status as the Sovereign”s representative, his decisions should be amenable to judicial review through the prerogative orders in general and certiorari in particular because the present scope of judicial review had expanded and these orders were now recognized in England and the Commonwealth as appropriate remedies against such public authorities.

Held, dismissing the application:

The Governor was the Sovereign”s representative in the Cayman Islands and although he had not been invested with Her general immunity from suit nor acquired the full plenitude of Her prerogative powers, while he exercised the delegated power of administering the government on Her behalf, the prerogative writs could not lie against him. The writs were peremptory commands of the Crown directed to the subject which the Crown could not without absurdity direct towards itself and whatever other remedy might be available, an application for certiorari was not an appropriate way of challenging the Governor”s decision (page 157, line 30 – page 158, line 1; page 159, lines 6–22; page 161, lines 19–28).

COLLETT, C.J.: Pursuant to leave granted on May 31st, 1988,
the applicant, Peter Fedele, has applied to this court by notice of
motion for an order of certiorari to remove into the court for the
25	purpose of its being quashed, a decision of His Excellency the
Governor made on May 20th, 1988 whereby he determined in
accordance with the provisions of s.36(g) of the Caymanian Pro-
tection Law, 1984 that the applicant be declared an undesirable
inhabitant of or visitor to the Cayman Islands. That determi-
30	nation was made, in accordance with ss. 7 and 8 of the Constitu-
tion of the Cayman Islands, after consultation with and in
accordance with the advice given to him by the Executive Coun-
cil.
At the hearing of this motion, a point of law by way of prelimi-
35	nary objection has been taken by Principal Crown Counsel. He
submits that as a matter of jurisdiction the prerogative order of
certiorari may not be issued by this court to His Excellency the
Governor acting as Her Majesty”s representative in these Islands.
In support of that submission he cited the recent case of Dilbert v.
40	Public Service Commn. (4) in which I refused to permit the
amendment of an application for certiorari and mandamus so as

to add the Governor as a respondent thereto, after it had become
clear that the decision called into question in that case had been
that of the Governor himself rather than of the Commission. I
refused upon the basis of persuasive authority to the effect that
5	such prerogative writs or orders would not issue out of any col-
onial court directed to the Governor of the territory concerned,
to be found in Re Benn (9), a decision of Luckhoo, C.J. (Guyana)
founded in turn upon the decision of the High Court of Australia
in R. v. South Australia (Governor) (10).
10	In 6 Halsbury”s Laws of England, 4th ed., at para. 1050, it is
stated that no order of mandamus will lie to the

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