Sylvester Solomon Appellant v His Honour Senior Magistrate Robert Shuster Respondent

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Justice of Appeal,Louise Esther Blenman,Davidson Kelvin Baptiste,Gertel Thom
• Judgment Date: 11 August 2015
• Judgment citation (vLex): [2015] ECSC J0811-3
• Docket Number: MNIHCVAP2014/0004
• Date: 11 August 2015

Between:

Sylvester Solomon

Appellant

and

His Honour Senior Magistrate Robert Shuster

Respondent

[2015] ECSC J0811-3

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal

MNIHCVAP2014/0004

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Interlocutory appeal – Natural justice – Judicial review – Right to fair hearing – Whether learned judge erred in dismissing appellant's application for leave to file and serve originating motion without giving appellant opportunity to be heard – Whether appellant's legal representative had right to be heard by court – Whether principles of natural justice breached by learned judge because of refusal to hear appellant or his legal representative – Whether learned judge erred in dismissing application to file and serve originating motion when it was the case that no leave was required to file originating motion and application was not frivolous or vexatious

An 'information on oath' filed on 9^th May 2014, required that the appellant's two minor children be brought before the Juvenile Court. This led to a series of hearings before the respondent. At the conclusion of the hearings, the respondent ordered, inter alia, that the appellant be precluded from any further contact with his minor children until further order of the court. The appellant subsequently contended that the 'information on oath' should have led to hearings in a Juvenile Court and that on no occasion during the proceedings was the respondent sitting as a lawfully constituted Juvenile Court. Accordingly, the appellant filed an application in the High Court for leave to file and serve an originating motion under rule 56(3)(1) of the Civil Procedure Rules 2000, in which he sought various orders and declaratory relief, on the ground that he was at all material times entitled to constitutional status and protection by the provisions of section 7(8) of the Montserrat Constitution Order 2010 ("the Constitution") and that the respondent had caused that provision to be breached.

Counsel who represented the appellant in the High Court, Mr. Warren Cassell, had recently been convicted of various offences, two of which had been upheld by the Court of Appeal. Mr. Cassell had appealed to the Privy Council, but at the time when he represented the appellant in the High Court, the appeal had not yet been determined. Mr. Cassell having been convicted of the offences, the Bar had moved the court to have him disbarred. However, because his appeal against the convictions was still pending, the disbarment application had been adjourned.

When the application for leave to file the originating motion had come on for hearing before the learned judge in the High Court, the judge refused to hear Mr. Cassell. The learned judge's reason for the refusal was that Mr. Cassell was a convicted felon and that a matter concerning his disbarment was before the court and had been adjourned for the determination of his appeal by the Privy Council. The learned judge further went on to dismiss the appellant's application for leave to file an originating motion, without hearing from the appellant, or from anyone on his behalf, indicating that the decision with which the appellant was dissatisfied was a decision from a magistrate and that the next stage should have been an appeal to the Court of Appeal rather than an application seeking leave to file an originating motion.

The appellant appealed the learned judge's decision. The issues raised by his grounds of appeal can be summarised as follows: (1) whether the learned judge acted in breach of natural justice by refusing to hear the appellant or his legal counsel; (2) whether the learned judge acted contrary to and in breach of section 7(8) of the Constitution by failing to hear the appellant or his legal counsel; and (3) whether the learned judge erred in dismissing the application to file and serve an originating motion when: (i) it was the case that no leave was required to file and serve an originating motion and (ii) it was not the case that the application to file and serve the originating motion was frivolous or vexatious.

Held: allowing the appeal and awarding costs to the appellant assessed in the sum of $2,000.00, that:

• 1. Mr. Cassell, not having been struck off the Court Roll at the time when he appeared before the learned judge, had a statutory right to practice and appear before the learned judge, notwithstanding that there were disbarment proceedings against him before the court. Since the disciplinary proceedings had been adjourned pending determination of Mr. Cassell's appeal to the Privy Council, there was no basis upon which the learned judge could have refused to hear Mr. Cassell since he had neither been suspended nor disbarred. Accordingly, the learned judge erred in refusing to hear Mr. Cassell and exercised his discretion improperly in doing so.

  Section 71(2) of the Supreme Court Act applied.

• 2. An unfair hearing will result in a breach of the principles of natural justice. The right to a fair hearing entails each party being given an opportunity to put his own case before a decision is reached. The learned judge's refusal to hear the appellant's legal representative and the subsequent dismissal of his application without hearing the appellant or anyone on his behalf, denied the appellant the fair opportunity to be heard. The learned judge therefore erred in not allowing the appellant to be heard on his application.

  Board of Education v Rice and Others [1911] AC 179 applied; Regina v Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531 applied; B. Surinder Singh Kanda v Government of the Federation of Malaya [1962] AC 322 considered; R v Panel on Takeovers and Mergers, ex parte Datafin plc and Another [1987] 1 All ER 564 considered.

• 3. A court must seek to do justice between the parties. Part 26 of CPR 2000 gives judges wide case management powers. In particular, pursuant to CPR 26.9, the court has a discretion to make an order to put matters right if there has been an error of procedure or a failure to comply with a rule, practice direction, court order or direction. Therefore, the learned judge having concluded that the appellant should have appealed the learned senior magistrate's decision to the Court of Appeal, it was clearly open to him to hear from the parties and make an order to put matters right instead of taking the drastic step of dismissing the appellant's application, which essentially amounted to striking out his claim for administrative and constitutional relief.

• 4. The appellant sought to challenge the constitutionality of the court that dealt with his matter and also the correctness of the orders that were made, and he did so by seeking leave to file a claim for judicial review and constitutional relief in the same proceedings. While CPR 56.3(1) provides that a person wishing to apply for judicial review must first obtain leave, CPR 2000 has no requirement for leave to file an originating motion for relief under a relevant Constitution. There is also no provision in the rules which indicates whether or not a person who wishes to bring a hybrid claim is debarred from obtaining leave. It was therefore open to the appellant to seek leave to file his claim for judicial review.

• 5. The appellant's application to file a claim for judicial review and to file and serve an originating motion being at the leave stage, the learned judge was not expected, at this point, to engage in a detailed review of the facts of the case, but he had to be satisfied, based on the grounds and facts before him, that the applicant had an arguable ground for bringing the claim, which had a realistic prospect of success. However, the learned judge failed to properly consider the merits of the application before him and as a result of this, wrongly exercised his discretion in striking out the application for leave to file a claim for judicial review and to file and serve the originating motion.

  Sharma v Browne-Antoine and Others (2006) 69 WIR 379 applied.

Introduction

1 BLENMAN JA: This is an interlocutory appeal by Mr. Sylvester Solomon against the order of the learned judge in the court below whereby the judge refused to allow Mr. Solomon's legal representative to be heard and dismissed Mr. Solomon's application for leave to file and serve an originating motion. Mr. Solomon, being aggrieved by the learned judge's decision, has appealed against the judge's order. The Crown vigorously opposes the appeal on the ground that the judge was correct to dismiss Mr. Solomon's application.

Background

2 On 9^th May 2014 an 'information on oath' was filed requiring that Mr. Solomon's two minor children be brought before the Juvenile Court. The 'information on oath' led to a series of hearings before the learned Senior Magistrate Robert Shuster ("His Honour Magistrate Shuster"). At the end of the hearings, His Honour Magistrate Shuster ordered, amongst other things, that Mr. Solomon be precluded from any further contact with his minor children until further order of the court.

3 Mr. Solomon contends however that the 'information on oath' should have led to hearings in a Juvenile Court and that on no occasion during the proceedings was His Honour Magistrate Shuster sitting as a lawfully constituted Juvenile Court. Mr. Solomon, being dissatisfied with the proceedings before His Honour Magistrate Shuster, filed an application to the High Court for leave to file and serve an originating motion under rule 56(3)(1) of the Civil Procedure Rules 2000 (" CPR 2000") in which he sought various orders and declaratory relief on the ground that, inter alia, he was at all material times entitled to constitutional status and protection by the provisions of section 7(8) of the Montserrat Constitution Order...