Re Roper

• Jurisdiction: Cayman Islands
• Judge: (Summerfield, C.J.)
• Judgment Date: 25 September 1981
• Court: Grand Court (Cayman Islands)
• Date: 25 September 1981

Grand Court

(Summerfield, C.J.)

IN THE MATTER OF ROPER

R.D. Alberga, Q.C. and S. McField for the applicant;

J. Martin, Senior Crown Counsel, for the respondent.

Cases cited:

(1) Anisminic Ltd. v. Foreign Compensation Commn., [1969] 2 A.C. 147; [1969] 1 All E.R. 208, dicta of Lord Reid and Lord Pearce applied.

(2) Att.-Gen. (Bahamas) v. Ryan, [1980] A.C. 718, applied.

(3) McInnes v. Onslow Fane, [1978] 1 W.L.R. 1520; [1978] 3 All E.R. 211, dicta of Megarry, V.-C. applied.

(4) R. v. Gaming Bd. for G.B., ex p. Benaim, [1970] 2 Q.B. 417; [1970] 2 All E.R. 528, applied.

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

Legislation construed:

Caymanian Protection Law, 1971 (Law 23 of 1971), s.30: The relevant terms of this section are set out at page 187, lines 28–32.

Caymanian Protection Law (Revised) (Law 23 of 1971, revised 1977), s.13: The relevant terms of this section are set out at page 189, lines 11–15.

s.24: The relevant terms of this section are set out at page 186, lines 33–37.

Caymanian Protection-gainful occupation licences-requirement of licence-by Caymanian Protection Law, 1971, s.24, no licence required by non-Caymanian already in gainful occupation under current work permit when 1971 Law came into force

Caymanian Protection-Caymanian Protection Board-judicial review-although valid decisions of Board not subject to review by Caymanian Protection Law, 1971, s.13, void decision may be reviewed-decision void if Board fails in duty to be fair or observe rules of natural justice

Caymanian Protection-Caymanian Protection Board-procedure-natural justice-implicit in legislation that Board to act fairly and in accordance with natural justice-person with legitimate expectation of renewal of gainful occupation licence to be given opportunity to be heard before renewal denied

The applicant, a non-Cay manian, applied for judicial review of a decision of the Caymanian Protection Board refusing the renewal of his gainful occupation licence.

From 1968 to 1978, the applicant had been issued annually with work permits first under the Work Permit Law, 1965 and then under the Caymanian Protection Law, 1971. In 1980 he applied to the Board for renewal of his current work permit (by then called a gainful occupation licence) for a further year but the Board agreed only to renew it for a ‘final period of six months.’ The applicant appealed to the Governor in Council who dismissed the appeal and upheld the decision. He then reapplied to the Board, providing testimonials of good character and sound business practice but, without being given any opportunity to answer any specific case against him, was simply referred by the Board to its earlier decision. A further appeal to the Governor in Council was rejected.

The applicant then brought the present proceedings seeking (a) a declaration that being a person who was already lawfully in gainful occupation in the Islands at the time the Caymanian Protection Law came into force, he did not require a licence from the Board for the purpose of continuing to work in the Islands, and (b) orders of mandamus directing the Boardand/or the Executive Council to allow him to hear and answer the case against him on which non-renewal of his licence had been based and directing the Board to reconsider its decision in the light of these submissions.

He submitted that he fell within the category of persons exempted by

s.24 of the Caymanian Protection Law from needing to obtain a licence from the Board, as he had already been lawfully in gainful occupation when the Law came into force and, in any event, he was entitled to an opportunity of answering the case against him on which the adverse decision of the Board had been based.

The Board submitted in reply that (a) the relevant exemption contemplated by s.24 was not intended to apply to holders of work permits, since by virtue of s.30 of the Law, current work permits were to be treated as licences and therefore were subject to renewal by the Board, as provided for in s.24; (b) on the general construction of the 1971 Law, the Board was not required to observe the rules of natural justice but was strictly governed by the procedural provisions in the Law which (i) gave an applicant no express right of audience, (ii) relieved the Board of any obligation to give reasons for its decisions, and (iii) provided no machinery for the Board to give an applicant the right to answer any case adverse to him.

Both parties sought a ruling as to whether the ouster clause in s.13 of the 1971 Law precluded judicial review of a decision made by the Board in breach of the rules of natural justice.

Held, quashing the decision of the Board and granting the declaration sought:

(1) Section 24 of the Caymanian Protection Law, 1971 required nonCaymanians, other than those already lawfully in gainful occupation in the Islands at the date that law came into force, to be licensed for that purpose by the Caymanian Protection Board. The applicant, being at that time gainfully occupied and in possession of a current work permit which had been granted to him under the Work Permit Law, 1965 and preserved by s.30 of the 1971 Law, met the criteria of the exemption in s.24 and consequently did not require a licence from the Board in order to continue lawfully in gainful occupation (page 186, line 30 – page 187, line 6; page 187, line 34 – page 188, line 15).

(2) It was implicit in the legislation establishing the Caymanian Protection Board, there being nothing stated to the contrary, that under the procedure to be followed by the Board, it had a duty to be fair and an obligation to observe the rules of natural justice. In the present case, it had failed in this duty and was in breach of these rules by not recognising the applicant”s legitimate expectation of a renewal of his gainful occupation licence after 12 years and by denying him the opportunity to hear and answer the case against him. The purported decision of the Board was therefore a nullity and as a consequence, s.13 of the 1971 Law, which excludes from judicial review actual decisions of the Board, could not apply (page 198, line 27 – page 199, line 12; page 199, lines 25–39; page 200, line 21 – page 201, line 10).

SUMMERFIELD, C.J.: The relief sought in this matter falls
under four heads, namely:
20	1. An order of certiorari to remove into this honourable court
and to quash the decisions of the Caymanian Protection Board
given on July 29th, 1980 and on February 24th, 1981 and the
decisions of the Executive Council given on October 15th, 1980
and on April 8th, 1981.
25	2. An order of mandamus directed to the Caymanian Protection
Board and/or the Executive Council requiring and directing the
Caymanian Protection Board and/or the Executive Council-(i) to
give sufficient information to the applicant to enable him to answer
the case against him; (ii) to reconsider the application in the light of
30	any further evidence or representation submitted on his behalf;
and (iii) seeking all necessary and consequential directions.
3. Alternatively, an order of mandamus directed to the Cayma-
nian Protection Board ordering the said Board properly to hear
and determine the application of the said Raglan Roper for a gain-
35	ful occupation licence which was made by him to it on December
10th, 1980 and by a further letter dated January 7th, 1981.
4. Alternatively, a declaration that the said Raglan Roper,
being a person who was lawfully in gainful occupation in the Cay-
man Islands on March 27th, 1972, does not require a licence from
40	the Caymanian Protection Board to be gainfully occupied in the
Cayman Islands.

The facts are not in dispute and can be set out as follows. The
applicant is a Jamaican by birth. He first came to the Cayman
Islands on a boy scout visit in 1965, when he was about 14 years of
age. On that visit he met Mr. Earling Myles and his wife. He then
5	frequently visited the Myles family in the Cayman Islands for
about two years until 1967. In 1967 he was brought to the Cayman
Islands by Mr. Myles who lived permanently on Grand Cayman
and was put under the guardianship of the Myles family by his
grandmother who was unable to look after him. In May 1967 the
10	Myles family proposed to adopt the applicant but that proposal
fell through and is immaterial to the application. He has lived in
these Islands since 1967 and regards them as his permanent
home. He is now about 30 years old and has therefore lived the
whole of his adult life here.
15	In January 1968 he was issued with his first work permit under
the Work Permit Law, 1965, and thereafter had work permits (or
gainful occupation licences as they came to be known under the
Caymanian Protection Law, 1971) either renewed or granted for
different purposes until October 1978 when he incorporated a
20	company in these Islands called Roper”s Window Cleaning Ltd.
of which he is a shareholder and a director. Application was made
for a gainful occupation licence to enable the applicant to work
for that company in September 1978 and the licence was granted.
An application was made in January 1979 for a renewal of that
25	licence for a period of one year and this was granted. The
renewed licence was due to expire on or about April 4th, 1980.
On or about March 10th, 1980 a further application was made
for the renewal of this licence in connection with his work with
Roper”s Window Cleaning Ltd. for a period of one year. A cover-
30	ing letter with that date on it appears to be date-stamped by the
Department of Immigration on May 12th, 1980, but I do not
think that anything can turn on this as the admitted facts are that
the application was made on March 10th, 1980. The applicant

...