Smith v Statutory Authorities Service Commission

• Jurisdiction: Trinidad & Tobago
• Judge: Aboud, J.
• Judgment Date: 01 March 2007
• Neutral Citation: TT 2007 HC 52
• Docket Number: HCA S-95 of 2004
• Court: High Court (Trinidad and Tobago)
• Date: 01 March 2007

High Court

Aboud, J. (Ag.)

HCA S-95 of 2004

Smith

and

Statutory Authorities Service Commission

Appearances:

Mr. Seunath S.C. leading Mr. Ramlogan and Mr. Ramanan for the applicant in both applications.

Mr. Mendes S.C., leading Mr. Bhimsingh in both applications.

Judicial review - Delay in preferring a charge — In circumstances delay not unreasonable — Whether decision to prefer charge breached principles of fairness — Mala fides not shown — No exceptional circumstances to show that disciplinary proceedings would be manifestly unfair — Application dismissed.

Aboud, J. (Ag.):

1 BRIEF HISTORY OF PROCEEDINGS

1.1 The applicant made two applications for judicial review of the decisions and actions of the Statutory Authorities Service Commission (“the respondent”): HCA S-95 of 2004 (“the first application”) and HCA S-876 of 2004 (“the second application”). In the first application, the applicant complains about the respondent's unreasonable delay in deciding whether to prefer a disciplinary charge against her. It was filed at a time when she had been suspended from work pending an investigation into allegations of misconduct made against her by her employer, the National Lotteries Control Board (“NLCB”). On 21 January 2004, Myers, J., granted leave to pursue the following relief:

• a) A declaration that there has been unreasonable delay on the part of the respondent in making a decision as to whether the applicant should be charged with an offence pursuant to its statutory power under regulation 90(6);

• b) An order of mandamus directing the respondent to perform its statutory duty under regulation 90(6) and make a decision as to whether the applicant should be charged with an offence;

• c) A declaration that the continuing breach of and/or failure and/or omission of the respondent to perform its statutory duties under regulation 90 is illegal;, unfair and/or unreasonable d) A declaration that the applicant has been treated illegally and/or unfairly contrary to the principles of natural justice;

• e) Damages;

• f) Costs;

• g) Such further reliefs, orders, directions, or writs as the Court might consider just and/or as the circumstances warrant pursuant to section 8(1)(d) of the Judicial Review Act, 2000.

1.2 On 31 March 2004, while the first application was already in train, the respondent formally charged her for breach of an implied term of her contract of employment, and notified her of the appointment of a disciplinary tribunal.

1.3 In response, the applicant filed the second application, leave for which was granted by Jamadar, J., on 14 May 2004. She complains here, in the main, about the lawfulness of the charge made against her. These are the reliefs that she seeks:

• a) An order directing the respondent to stay the appointment of a disciplinary tribunal to hear and determine the charge of misconduct preferred against the applicant pending the hearing and determination of this application for judicial review;

• b) An order of certiorari to remove into this Honourable Court and quash the decision to charge the applicant and/or the charge itself;

• c) A declaration that the decision of the respondent communicated to the applicant on 31 March 2004 to prefer a disciplinary charge and/or the charge so preferred against the applicant for misconduct arising out an implied term of her contract of employment is ultra vires, illegal, null and void;

• d) A further declaration that the said charge was preferred in an attempt to frustrate, prejudice, pre-empt and/or torpedo Judicial Review case HCA No. 95 of 2004 whereby the applicant complained against and/or challenged her suspension from duty for some 17 months without disciplinary proceedings having been taken against her as an abuse of process;

• e) A further declaration that the purported disciplinary proceeding is an abuse of statutory power and is arbitrary unfair and unjust;

• f) A declaration that the charge of misconduct is illegal and/or invalid and/or null and void and of no legal effect;

• g) Costs;

• h) Such further reliefs, orders, directions, or writs as the Courts might consider just and/or appropriate as the circumstances of the case warrants.

1.4 At the trial, the applicant's counsel, Mr. Ramlogan, did not pursue those reliefs from the first application that were intended to force the respondent to charge the applicant with a disciplinary offence. These were the mandamus and the declaration that the delay was illegal, namely reliefs (b) and (c). But the applicant pursued all the reliefs in the second application, notably, the quashing of the decision to charge the applicant and a stay of the disciplinary proceedings.

2. BRIEF SUMMARY OF THE COURT'S FINDINGS OF FACTS AND LAW

• (a) There are four factors that are used to establish unreasonable delay in the prosecution of charges: (1) the length of the delay, which must, by its measurement, be presumptively prejudicial or unfair, and not merely trifling or inconvenient, or rebuttable; (2) the reasons given to explain the delay, taking account of the bona fides (if any) of the explanation; (3) the nature or quality of the applicant's assertions or complaints, which absent might negative a finding of deprivation, and present might prove it; and (4) the potential of personal prejudice caused by the delay, firstly, to a fair trial, which is measured by its actual (and not presumed) adverse effect on the preparation of a defence, and secondly, by the distress or anxiety caused by the prolongation of any pre-trial interference with the person, reputation, or property of the accused person;

• (b) A disciplinary charge brought under the code of conduct contained in Part VII of the regulations made under the Statutory Authorities Act, Chap 24:01 is null and void because the code of conduct in the regulations is ultra vires the Act;

• (c) There is the following implied term in the contract of employment between the applicant and respondent: “without reasonable and proper cause, neither party shall act in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between an employer and employee”;

• (d) The charge that the applicant was in breach of the implied term is not an illegal charge;

• (e) In drafting the RSC Order 53 Statement, which is a pleading like any other, an attorney at law must fully particularise every complaint, with a view to putting the respondent on notice of the case it has to meet, and a Court will disallow evidence or submissions on complaints bereft of particulars, for example “breach of natural justice” or “abuse of power” simpliciter;

• (f) The high Court will not, except in extreme cases of manifest unfairness, stay pending proceedings in an inferior Court;

• (g) The right of a respondent, at the hearing of the substantive application for judicial review, as opposed to the hearing of the application for leave, to take the objection that an alternative remedy is available to an applicant is a doubtful, and judicially unresolved question;

• (h) The delay, in the circumstances, not being unreasonable, and the charge not being unfairly preferred or invalid, the first and second applications are, accordingly, dismissed.

3. FACTUAL BACKGROUND TO BOTH APPLICATIONS

3.1 The applicant was at all material times the acting director of the National Lotteries Control Board (“the NLCB”). Her substantive post was deputy director. In addition to receiving a salary and other emoluments, the deputy director also received two allowances relative to her personal car: a mileage allowance, meant to compensate her for actual mileage covered in the course of her work as deputy director, and an upkeep allowance, meant to cover the cost of maintaining the repair of her vehicle. For a short while at the end of 1996, the respondent had appointed her to the post of acting director, during a temporary vacancy in that office. On 17 July 1997, the respondent reappointed her as acting director, but this time the term of her appointment was open-ended; it was made pending interviews to fill the office permanently. Up to the time of her suspension, some two years later, no one had been appointed to the post of director. As acting director, she was paid an acting allowance of $3,000, in addition to the salary, emoluments, and allowances of deputy director. She served the board of the NLCB that was appointed by a previous government formed by the United National Congress (“the UNC”). The then NLCB board allegedly took a decision in or around August 2000 to lease a motor vehicle for the office of director, in which post she had been acting for some two years. The decision was, apparently, to the effect that GTECH, an NLCB service provider, would lease the vehicle and account for it out of the NLCB marketing fund. The applicant, as acting director, wrote a letter to GTECH on 1 September 2000 directing the lease of a vehicle for her use. GTECH then leased and fully maintained a motor vehicle for her exclusive use.

3.2 From July 2000 the applicant received her salary and emoluments as deputy director together with the director's acting allowance. She had use of the fully maintained NLCB vehicle. She also continued to own her personal vehicle. Some time after the board decision (the date was not provided), the applicant had a conversation with the then acting secretary to the board. She said she inquired whether she would still be entitled to receive the mileage and upkeep allowances for her personal vehicle. According to the applicant, the acting secretary told her that the practice was that she should relinquish the mileage allowance, but continue receiving the upkeep allowance. According to the acting secretary, the applicant was told that she should receive neither, and that she had to make an election as to which of the benefits she would accept, either the fully maintained NLCB vehicle, or the two...