Anthony Trotman v Public Service Commission

• Jurisdiction: Barbados
• Judge: Justice Olson DeC. Alleyne
• Judgment Date: 13 September 2019
• Neutral Citation: BB 2019 HC 022
• Docket Number: No. CV 1559 of 2015
• Court: High Court (Barbados)

IN THE SUPREME COURT OF JUDICATURE

HIGH COURT

CIVIL DIVISION

Before Dr. the Honourable Justice Olson DeC. Alleyne, Judge of the High Court

No. CV 1559 of 2015

Between:

Anthony Trotman

Claimant

and

Public Service Commission

First Defendant

The Attorney General of Barbados

Second Defendant

Ms. Liesel N. Weekes in association with Ms. Danielle Donowa for the Claimant

Ms. Jennifer P. Small for the Defendants

Judicial review — Decision to withdraw disciplinary charges against the applicant and to terminate his temporary position in the public service — Whether withdrawal of disciplinary charges rendered the disciplinary proceedings void ab initio — Effect of withdrawal of charges on claimant's case.

DECISION

INTRODUCTION

1 These are judicial review proceedings under the Administrative Justice Act, Cap 109B (“the AJA”) which the claimant commenced on 5 November 2015. At that time, he was a temporary officer in the public service against whom disciplinary proceedings were extant. He had been suspended on half-pay but was restored to full pay retrospectively before initiating the proceedings by which he is challenging the validity of the suspension and disciplinary process.

2 The viability of the judicial review application is now in question. On 6 November 2015, the disciplinary charges against the claimant were withdrawn and his temporary position in the public service terminated. Against that background, the parties have resolved that the issues to be tried in this matter are limited to the following:

• (i) whether the withdrawal of the disciplinary charges rendered the disciplinary proceedings void ab initio;

• (ii) what is the effect of the withdrawal of the charges on the claimant's case; and

• (iii) costs.

3 The Court gave effect to that resolution in an Order in which it required the parties to file written submissions in respect of the identified issues. The claimant's submissions were filed by Ms. Liesel Weekes who along with Ms. Danielle Donowa appeared for him. The defendants' counsel, Ms. Jennifer Small, filed on their behalf. Both sides declined the opportunity to make oral submissions.

DETAILS OF THE CLAIM

4 Before turning to the submissions, I will outline the claimant's claim. In his grounds for relief, he challenges the validity of his “purported suspension”, various acts and omissions relating to the disciplinary process, and his interdiction on half-pay for a period of 10 months. After setting out particulars of the facts on which he relies, he seeks the following orders:

• 1. A Declaration that [his] suspension on November 11 ^th 2011 was contrary to law and null void and of no effect;

• 2. A declaration that the failure to observe the time limits … relative to the implementation of each step of the disciplinary proceedings against [him] amounted to procedural ultra vires and renders each said step in the proceedings void;

• 3. A declaration that the disciplinary proceedings in their entirety are null and void and of no effect as they were contrary to law, in excess of jurisdiction and procedurally ultra vires.

• 4. An order of certiorari quashing [his] suspension and interdiction

• 5. Consequently an order that [he] be re-instated to his position … in the Ministry of International Business.

• 6. An inj unction restraining the [first defendant] from hearing purporting to hear or proceeding with any inquiry into the said disciplinary charges laid against [him] until the determination of this application.

• 7. Costs; and

• 8. Such further or other relief as this Honourable Court may deem fit.

SUBMISSIONS AND DISCUSSION

5 The written submissions bring clarity to the term “void ab initio” as used in the first issue framed by the parties. They intended it to mean “as though they never occurred”. Hence, stripped of the Latinism, the first inquiry is whether the withdrawal of the disciplinary charges … by the defendants had the effect of rendering the disciplinary proceedings as if they had never occurred.

6 If the withdrawal had such effect, the claim would be devoid of a basis and must fail. If it did not, the question becomes whether the proceedings ought to continue. In blunt terms, that is a restatement of the second issue as framed by the parties. They asked, what effect does the withdrawal of the charges have on the proceedings?

7 In summary, the parties agreed that the withdrawal of the charges did not render any prior conduct on the defendant's part void. However, on the second issue, the claimant contended that the Court could proceed to grant the declaratory orders sought. The defendants contended that it should not.

8 Ms. Weekes cited Calvin v Carr [1980] AC 574 in support of her assertion. In that case, the Privy Council considered whether the disciplinary committee of a jockey club had any jurisdiction to hear an appeal against a stewards' decision that was flawed for breach of natural justice and therefore said to be void. The appellant contended that the Committee had no jurisdiction since a condition precedent of an appeal is the existence of a real, even if voidable decision. It was held that the Committee had jurisdiction. Delivering the opinion of the Board, Lord Wilberforce stated at pages 589 to 590:

This argument led necessarily into the difficult area of what is void and what is voidable, as to which some confusion exists in the authorities. Their Lordships' opinion would be, if it is necessary to fix upon one or other of these expressions, that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or court, it may have some effect, or existence, in law. This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent. So to hold would be wholly unreal. The decision of the stewards resulted in disqualification, an effect with immediate and serious consequences for the plaintiff. … These consequences remained in effect unless and until the stewards' decision was challenged and, if so, had sufficient existence in law to justify an appeal.

9 Ms. Weekes submitted that the claimant must be permitted to enquire into the validity of the decision to lay and proceed with the disciplinary charges against him since he had been affected by the sanctions imposed as a consequence. Likening the situation to that in Calvin, she contended that the withdrawal of the charges cannot operate so as to treat the initial decision as though it is “legally non-existent” or “was never made”. She concluded that the validity of the decisions complained of by the claimant remains in issue before the Court.

10 Relying on Calvin further, Ms. Weekes submitted that the withdrawal of the disciplinary proceedings did not remove the basis of the claim and, therefore, did not require that it be abandoned. She noted that the claimant's cause of action existed when he filed his claim. She conceded that the withdrawal of the charges and the termination of his employment restrict the relief now available to him. However, she urged, the Court could review the matters complained of and grant declaratory relief.

11 Ms. Small presented her clearest answer to the first issue at paragraph 24 of her submissions. That paragraph reads:

… it cannot be said that the charges brought against the Claimant as well as the disciplinary proceedings are void as if they never existed simply because the charges have now been withdrawn. … The fact that [the charges] were withdrawn … does not render them a nullity. It simply means that the Claimant no longer had to answer these charges.

12 In respect of the second question, Ms. Small's argument against the continuation of the proceedings comprised a number of distinct points. The first three were contained in paragraph 14 of her submissions which reads:

With the withdrawal of the disciplinary charges … there was therefore no administrative act or omission that could be subject to judicial review. Further, by virtue of the withdrawn disciplinary proceedings, there was no act or omission that adversely affected the interests of the Claimant as per section 6(a) of the [AJA]. A decision in favour of judicial review of alleged administrative acts or omissions that arose out of a withdrawn disciplinary hearing would be detrimental to good administration and should be refused pursuant to section 8 of the [AJA].

13 Additionally, Ms. Small submitted that since the acts or omissions complained of by the claimant no longer exist, continuation of the proceedings would be a meaningless and nugatory exercise. She cited Williams v Attorney General BVIHC2010/0048 (date of decision, 22 June 2011) in support of this latter submission. She urged further that since the claimant is no longer a member of the public service, no further disciplinary proceedings could be instituted against him and that there is no basis on which the Court may invoke its review jurisdiction.

14 In Williams, the claimant sought an order quashing a decision which had resulted in her dismissal from the public service. The decision was later revoked but she persisted with her claim for judicial review. Hariprashad-Charles J determined that it would have been a meaningless exercise in the circumstances to grant the order sought by the claimant. Since the relief sought had already been offered by the defendants, the court determined that it would have been a waste of judicial time and resources to embark on a hypothetical hearing. There was no good reason in the public interest to do so.

15 The question as to whether the withdrawal of the disciplinary charges rendered the defendants' prior...