Ewayne Warner James v The Attorney General of the Commonwealth of Dominica and The Chief of Police
| Jurisdiction | Dominica |
| Judge | Stephenson J. |
| Judgment Date | 31 July 2018 |
| Neutral Citation | DM 2018 HC 10 |
| Docket Number | CLAIM NO. DOMHCV2016/0226 |
| Court | High Court (Dominica) |
| Date | 31 July 2018 |
IN THE HIGH COURT OF JUSTICE
The Hon. Justice M E Birnie Stephenson
CLAIM NO. DOMHCV2016/0226
Mr J Gildon Richards for the Applicant
Dr Eddie Ventose with Mrs Jo Anne Xavier Cuffy for the Respondents
Judicial Review - Application for leave to file judicial review — Realistic prospect of success — Standing — Delay — Alternative remedy — Whether there was an arguable ground for judicial review with a realistic prospect of success — Whether applicant was entitled to apply for judicial review — Whether there was an alternative remedy available to the applicant — Application granted — CPR, R. 56.3 (1), 60 (1) — Firearms Act, s.14.
This is an application for leave to file Judicial Review. Judicial review may be defined as the jurisdiction of the superior courts to review laws, decisions, acts and omissions of public authorities in order to ensure that they act within their given powers.
The relevant facts of the case are as has been stated in the submissions filed on behalf of the intended respondents (‘the respondents’). By letter dated the 23 rd day of June 2016 the Chief of Police (‘the COP”), revoked the intended applicant's (‘the applicant’) Firearm User Licence. The revocation was stated to have been made pursuant to section 13(1)(a)(iv) of the Firearms Act 1 (“ Firearms Act”). By letter dated the 27 th day of June 2016 the applicant wrote, through his attorney, alleging that the COP had unlawfully revoked his firearm user licence.
On the 25 th day of July, 2016 the applicant filed an application for leave seeking Judicial Review of the decision to revoke his firearm user licence. In his application the applicant seeks an order of certiorari to remove into this Honourable Court and quash the said decision made by the COP.
In considering the procedural complaint made in this application for leave to apply for Judicial Review, the court is mindful of the fact that it is called upon not to review the merits of the COP's decision but rather to consider whether the applicant has made out a prima facie case that the procedure adopted by the COP was unfair, unreasonable or in violation of the principles of natural justice. The primary facts that are relevant to my consideration are therefore those that set out the series of events which culminated with the COP's decision under complaint.
Procedural fairness requires that the applicant be given a fair hearing, which will dictate that he should be informed of the allegations against him, be given an opportunity to meet the allegations, and if there is a hearing he should be informed of his right to be assisted by legal counsel. Mason J in the case of Kioa v West 2 said
“In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations …”
A person seeking judicial review must pursuant to part 56.3(1) of the Civil Procedure Rules, 2000 (CPR) first obtain leave to do so.
The permission stage in Judicial Review Proceedings serves to filter out challenges which are unarguable, doomed to fail or subject to some legal or discretionary bar. Lord Bingham in R v Secretary of State for Trade and Industry exp Eastaway said “The requirement of permission to apply for judicial review is imposed primarily to protect public bodies against weak and vexatious claims.” 3
The issues arising in this matter are those which arise generally in all applications for leave to file for judicial review and those substantive issues peculiar to this case.
At the permission stage, the question of standing is merely a “threshold” question for the Court, designed to weed out frivolous and vexatious claims. 4 The Court must be satisfied that there is an arguable ground for judicial review, with a realistic prospect of success. 5
There are certain public authorities that are clothed with discretion and it is expected that this discretion is exercised reasonably and in accordance with law. Where this does not happen one may well approach the Court to review the decision of that public authority as being an abuse of discretion.
Lord Hailsham LC in Chief Constable of North Wales Police v Evans 6 stated what has been described as the essential function of Judicial Review, he said:
“It is important to remember in every case that the purpose is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the Authority constituted by law to decide the matter of question.”
In Judicial Review proceedings the court can determine whether or not administrative decisions are unlawful and invalid. In so doing the court has a duty to ensure that administrative decisions are taken properly. It is noted however, that the court cannot determine whether decisions are right or wrong on their merits.
Further, the court cannot require that a power be exercised in any particular way; it can only require that the discretion is exercised lawfully. The court in these proceedings is empowered to make declarations which indicate the rights of applicants. In the case at bar, the applicant has indicated his intention to seek certain declarations from the court.
Part 56.2 (1) and (2)(a) of CPR 2000 provides that
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(1) “An application for judicial review may be made by any person, group or body which has sufficient interest in the subject matter of the application.
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(2) This includes –
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(a) any person who has been adversely affected by the decision which is the subject of the application;
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…
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There is no dispute in the case at bar as to whether the applicant has sufficient interest in the subject matter of the application as he is a person who, based on the averments in his affidavit sworn in support, is directly affected by the decision of the COP not to renew his Firearm Licence.
The applicant's case is that the said COP's decision was not compliant with section 13 of the Firearms Act 7. The applicant submitted that the decision by the COP to revoke his firearms licence violated the provision of section 13 of the Firearms Act and the COP acted unlawfully and/or unfairly to his prejudice and detriment.
It was contended by Learned Counsel Mr Gildon Richards on behalf of the applicant that the COP was required by law to first have a hearing with the applicant and to inform him of the reasons which must include reasons provided by section 13 of the Fire Arms Act which states:
“Subject to section 14, the appropriate authority may revoke a licence:
(a) If the appropriate authority is satisfied that the holder:
(i) is prohibited from possessing a firearm or ammunition under section 15;
(ii) has intemperate habits or is of unsound mind;
(iii) is under the age of eighteen;
(iv) is for any reason considered unfit to be entrusted with a firearm;
(b) the holder fails to comply with a notice under subsection 2;
(c) if the holder is charged with or convicted of an offence in which the use of firearm or ammunition is an element of the offence;
(d) if the holder has ceased to be a member of a shooting club where he was licenced for that purpose;
(e) if the holder fails to comply with section 3 (Parts v, vi, vii or viii);
(f) for non-payment of fees.”
Mr Richards submitted that this is procedural and not substantive application. It was also submitted that the letter from the COP was void of the reasons as required by law and that in the circumstances of this case the applicant had to seek the court's intervention dealing with this issue by way of Judicial Review.
Mr Richards further submitted that the Applicant falls within the meaning of applicant as is stated in section 14 of the Firearms Act 8 which states
“14. (1) An applicant aggrieved by a decision of the appropriate authority –
(a) refusing to grant a licence;
(b) refusing to amend any licence;
(c) revoking any licence; or
(d) refusing to grant any exemption pursuant to section 6;
who desires to question the validity of the refusal or revocation, on the ground that the refusal or revocation is not within the powers of the appropriate authority or that any requirement of this Act has not been complied with in relation to the refusal or revocation, may make an application to the High Court under this section in accordance with any rules of court for the time being in force.
(2) Where the aggrieved party is the holder of a licence and has in his possession the firearm or ammunition which is the subject matter of the appeal, he shall deposit the firearm or ammunition with the appropriate authority before making the application under subsection (1).
(3) This section does not apply to a decision made by the appropriate authority under section 15.”
Mr Richards submitted that this section of the Firearms Act enables the applicant who is an aggrieved licence holder to apply to the High...
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