The Public Service Union v Permanent Secretary of Ministry of National Security
| Jurisdiction | St Vincent and the Grenadines |
| Judge | ‘Henry, J.’ |
| Judgment Date | 31 July 2019 |
| Judgment citation (vLex) | [2019] ECSC J0731-2 |
| Docket Number | SVGHCV2018/0086 |
| Court | High Court (Saint Vincent) |
| Date | 31 July 2019 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
SVGHCV2018/0086
In the Matter of an Application for Interim Injunction Pursuant to Part 17.1 (A) (B) of the Civil Procedure Rules 2000
and
In the Matter of a Matter for Judicial Review of a Decision by the Permanent Secretary of Ministry of Security to Transfer Jamali Whyte from the Inland Revenue Department in the Ministry of Finance to the Maritime Administrative Office in the Ministry of Security
Mr. Jomo Thomas with him Ms. Shirlan Barnwell for the claimant.
Mr. Duane Daniel with him Mr. Kezron Walters for the respondents.
The Public Service Union (PSU) is a trade union organized in the State of Saint Vincent and the Grenadines to represent public officers who are employed by the Government of Saint Vincent and the Grenadines. Mr. Jamali Whyte is employed by the Government of Saint Vincent and the Grenadines, as a junior clerk in the Inland Revenue Department (IRD). The PSU has applied 1 for judicial review of a decision transferring Mr. Whyte to the Maritime Department. The Permanent Secretary in the Ministry of National Security (P.S), Chief Personnel Officer (CPO) and the Public Service Commission (PSC) are named as defendants. They will be referred to collectively as the defendants.
By Notice of application filed on 12 th December 2018, the defendants have applied for portions of the Fixed Date Claim Form to be struck out on the grounds that they respectively disclose no grounds for bringing the claim and are an abuse of the court's process. They also seek orders striking out parts of Jamali Whyte's supporting affidavit on the grounds that they respectively fail to comply with a court order; constitute an abuse of the court's process; are prolix; and contain hearsay. The CPO and the PSU applied for orders that the claims against them be struck out on the ground that the statement of case discloses no reasonable ground on which to bring a claim against them.
The PSU resisted the application. It submitted that the judicial review claim can be pursued against the P.S. simultaneously with claims for declaratory relief against the CPO and the PSC. It argued that the rules of court permit this approach.
The issues are whether:
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1. The impugned portions of the Fixed Date Claim Form should be struck out;
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2. The impugned portions of Jamali Whyte's affidavit should be struck out; and
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3. The claim against the CPO or against the PSC should be struck out.
The defendants' application to strike out portions of the Fixed Date Claim Form is made pursuant to CPR 26.3(1) (b) which empowers the court to strike out a statement of case or part of it, if it discloses no reasonable ground for bringing the claim. The Court of Appeal of the Eastern Caribbean Supreme Court and the Privy Council have rehearsed the legal principles which guide the court when it considers an application to strike out a statement of case. The Court is required to examine the parties' pleaded cases. The facts relied on are assumed to be true.
The judgments in Didier et al v Royal Caribbean Cruises Ltd. 2, Attorney General of St. Lucia v Allen Chastenet et al 3 and Real Time Systems v Renraw Ltd. 4 outline those legal principles. A striking out order is considered to be nuclear in its effect. It is therefore to be used sparingly and deployed only if the court is satisfied that ‘the statement of case is just plain bad in law’ 5 or cannot be sustained on the allegations 6. If a statement of case raises an issue which the judge must decide, the court generally errs on the side of allowing the case to proceed to trial, even if it is a weak case.
The defendants contended that part of paragraph (2) IV and paragraph (3) 1 of the Fixed Date Claim Form should be struck out. It is prudent to set out both paragraphs for context. The impugned words are highlighted in bold for ease of reference. They state respectively:
‘The Claimant … claims against the following Defendants …:
(2) IV A declaration that the said decision of the First Defendant in letter dated 25 th April, 2018 is unreasonable in the circumstances and or alternatively the decision of the First Defendant failed to consider relevant considerations;
(3) I A declaration that the second and third defendants acted unlawfully, unjustly and or unfairly by denying Mr. Jamali Whyte to be heard.’
Regarding paragraph (2) IV, the defendants submitted that the PSU has supplied no evidence that there are legal considerations that the P.S. did not take into consideration. The defendants argued that the supporting affidavits of Jamali Whyte and Phillip Bailey did not identify any lawful enactment or document (governing the employment relationship) that the P.S. allegedly failed to take into account which he should have, before re-assigning Mr. Whyte. They contended that even if the PSU filed further evidence, this contention cannot be supported.
The defendants submitted further that the allegation presupposes that there are relevant legal considerations which the P.S. should have considered before making the decision to re-assign Mr. Whyte. They argued that there is nothing in the Civil Service Orders 2. 16 or 2.17 which placed a duty on the P.S. to consider any factor or set of factors before assigning an officer within his purview. They contended that his discretion is unfettered. They concluded that the impugned part of paragraph (2) IV contains no reasonable ground for bringing the claim and should be excised.
The PSU has not refuted the PSC's submission that it failed to identify the legal considerations which the P.S. allegedly failed to consider. It rejoined that it relies on the court to apply the overriding objective to deal with cases justly in relation to the application. It submitted that the cases of Olga Nichols et al v Epicurean Holding et al 7, Real Time Systems case and the Baldwin Spencer case demonstrate that the court should strike out claims only in exceptional cases.
Mr. Whyte outlined a number of matters which he hinted should have been part of the P.S.'s consideration. He deposed among other things that he has no place of abode on the mainland. The PSU contended that Mr. Whyte was not provided with reasons for the impugned decision. It appears that one of its arguments is that the alleged absence of reasons demonstrates that none exist and by extension that relevant matters were not taken into account.
The PSU argued that the law on relevant and irrelevant considerations is not exhaustive. It submitted that the court will determine whether any particular consideration is relevant or not to the exercise of discretion ‘by reference to the implied objects of the statute. In this regard it relied in support on Halsbury's Laws of England 8. At paragraph 623, the learned authors make it clear that the issue of relevancy or irrelevancy is a legal consideration for the court. This is a correct statement of the law. Accordingly, the defendants’ objection on this basis is premature and involves matters to be considered after legal arguments have been made at the end of the trial. It would be imprudent to investigate them at this stage. I refrain from doing so.
The defendants' contention that the P.S.'s discretion to re-assign a public officer is unfettered is not one which the court is at liberty to adjudicate at this stage of the proceedings in the absence of a finding on the contradictory evidence and substantive legal submissions. This is still moot and one of the issues in contention between the parties. I make no finding of that issue at this stage. It would be premature for me to do so.
The CPR 9 provides that pleadings and affidavits contain assertions of fact. It is trite law that legal arguments and contentions are to be excluded from such documents. 10 It seems to me that the issue of what are relevant considerations can be settled only after all of the evidence is adduced. It may be that Mr. Whyte's case is weak on this point. However, I am satisfied that he has highlighted some matters in his affidavit which he might rely on to prove that they were relevant and not considered. For the foregoing reasons, I make no order striking out paragraph (2) IV of the Fixed Date Claim Form.
The defendants argued that paragraph (3) I alleged that the CPO, the ‘second defendant’ acted unlawfully, unjustly and or unfairly by denying Jamali Whyte an opportunity to be heard. They submitted that the PSU was granted leave to apply for judicial review against the PS but not against the CPO. They submitted that the PSU may not bring a claim for relief against the CPO.
The defendants relied on the decisions in the cases of Robert Leotard of Reel Irie Ltd. v Saint Lucia Air and Sea Ports Authority 11 and Otto Sam v Chief Personnel Officer, the Director of the National Emergency Management Organization, and the Attorney General 12. They submitted that the learned Judge in the latter case struck out the claim against two defendants because no leave had been granted to bring judicial review proceedings against them.
In rendering her judgment Justice Thom stated:
‘Where … the statement of case or a part of the statement of case is not in keeping with the leave granted, the statement of claim of the part of the statement of claim ought to be struck out.’
The defendants reasoned that the words ‘second and’ must therefore be struck from paragraph (3) I of the Fixed Date Claim...
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