2012 Administrative Law 2014

Exam Paper 2012 Question # 3

In this scenario the parties involved are, Mr. Brown, Mr. Nola, Mr. Jack, Prohibited
Substance Body and the Barbados Turf Club (BTC).

Mr. Brown and Mr. Nola will have locus standi to bring an action for judicial review.
The fact being that the BTC is set up under the Barbados Turf Club Act and is the
only body in Barbados responsible for the regulation of horse racing make it a body
subject to judicial review. The Prohibited Substance Committee (PSC) which is
carrying out a function on behalf of the BTC is still considered to be a private entity
and is not subject to Judicial Review. Section 6(a,b) of the AJA states that the court
may grant relief in accordance with this Act, to a person whose interest have been
adversely affected by an administrative act or omission or to any other person if the
court is satisfied if the person application have sufficient public interest or if the
case is meritorious.

In this case reference can be made to Barbados Cricket Association v Pearce,

where the BCA was not solely responsible for cricket in Barbados it was run
by its members and regulated its own affairs thus making it a domestic body,
thereby making it a body not amenable to judicial review. Whereas in Ex p
Datafin, the body Panels was acting in a public domain an d was the sole
body responsible for mergers and takeovers thereby making it a body
amenable to judicial review.

In advising Mr. Nola, the issue here is whether the BSC breached Section 4 (d) of the
AJA on the ground that there was a breach of the principles of natural justice.

Issues

The Chairman of the committee informed Mr. Nola at the inquiry of the charges and
refused him an adjournment for him to adequately prepare his case. Based on the
principles of natural justice Mr. Nola was entitled to the right of a fair hearing where
he should have been informed of the charges against him before the inquiry. Here
we can rely on the case Ridge v Baldwin, which establishes that before a person can
be dismissed they must first be informed of the charge against them and to have an
opportunity to respond. This is allowed so a person can adequately prepare their
defence. In the case this is where a constable was arrested and charged with
conspiracy to obstruct the course of justice. During the proceedings the judge made
improper statements but no evidence of the alleged corruption was given .The
watch committee thought that these statements were sufficient to level charges
against him and he was discharged from his duties of constable. He brought an
action for judicial review on the basis that he was not informed of the charge and
not allowed the right to be heard and to answer the charge.

The issue of the right to an adjournment should have been allowed for Mr. Nola.
Upon hearing the charge for the first time Mr. Nola should have been allowed time
to consult with a lawyer. You would want an adjournment to better prepare your
case and for legal representation.

Once an application is made in the interest of fairness, the applicant should be

allowed time to be adequately prepared for his hearing. This right however must be
balanced to ensure that the tribunal is not frustrated by the applicant to use the
adjournment as a delay tactic.

Relying on the case Clifford v Graham, the applicant was declared as the father of
an unborn child and ordered to pay child support. He was also refused the right by
the court the opportunity to present his case before the court thereby having the
opportunity to submit medical evidence of his incapacity to father a child was in
contravention of his rights to a fair trial. The magistrate in this case would have
acted unreasonably by refusing the applicant an adjournment in order to obtain a
DNA test which could not be obtained in Barbados.

The third issue was that Mr. Nola was also refused the right to an examination and
cross examination of witnesses which are fundamental principles that should be
followed in the process of natural justice. Mr. Nola should have been given the right
to call witnesses and cross examine where there are disputed issues of fact. Cross
examination is important because if there are unresolved conflicts concerning the
disputed evidence and cross examination would be helpful to the person making the
affidavit. You are cross examined on statements in the affidavit after hearing the
evidence and cross examination the judge can then make an assessment of the
credibility of one witness against another.

Relying on the case Western Broadcasting Services v Seaga , the appellants

argued that there were significant factual conflicts and declining to hear oral
evidence the trial judge went outside her authorised powers and was guilty of abuse
of those powers. The Board claimed that refusal did not appear to it to betoken a
proper willingness to permit cross- examination of the despondent, and was unable
to agree with the Court of Appeal that there was ample opportunity for the
attorneys to cross-examine. It continued that first it accepted the correctness of the
appellants submission that the procedure adopted was unfair and went outside of
the judges power; second the Court of Appeal was wrong to uphold the judges
factual conclusion, given the unresolved conflicts of evidence and third in the
absence of cross-examination it was in no better position than the judge to assess
the credibility of the respective despondent.

Mr. Nola was given no reason for the disqualification of Bontee. The rules of natural
justice give the right to reasons but the courts are adamant that there is no such
right at Common Law. However both the Administrative Justice Act of Barbados (AJA)
and the Judicial Review Act of Trinidad and Tobago (JRA) have modified the common
law position to provide statutory right for reasons within a stipulated timeframe by
administrators. Where the statute gives the public authority the discretion to decide
whether or not to assign a reason for refusal, the absence o reason might lead the
court to draw unfavourable inferences.

Section 13(1) of the AJA provides that it is the duty of any person making a
decision to which that section applies, if requested in accordance with section 14 by
any person adversely affected, to supply that person with a statement of the reason
for the decision.

In Attorney General of Trinidad and Tobago v KC Confectionery, the

court noted that there was no obligation to give reasons for a decision where
there were no statutory or contractual requirements but a simple discretion
vested in the licensing body.

Relying also on the case Burroughs v Katwaroo , the issue related to the
revocation of the respondents firearm license by the Commission of Police no
reasons were given for the revocation. The Court claimed that the Commissioner
should have given the applicant some reason for the revocation of the license. If he
did not or could not give reason it would be reasonable to say that the
Commissioner had no valid reason.

The issue of bias arose when it was found that Mr. Jack the Chairman of the PSC
sons owned the horse Lionel that eventually won the race after Bontee was
disqualified.

The public perception of fairness is said to be key, this principle has significance in
the rule against bias. The test is an objective one in that whether right thinking
members of the public having all the fact and circumstances would come to the
conclusion that a particular tribunal body or person was biased.

The rule against bias of automatic disqualification would apply to Mr. Jack; he had a
personal interest in the outcome of the subject matter of the decision. Mr. Jack
should not have participated in the decision making seeing that his son owned a
horse in the race. Even if there was no influence in the actual decision, the law
would presume bias in such cases because the decision maker had an interest and
should not have participated to influence the decision of the outcome.

Another issue is that of apparent bias where the public may be lead to think that Mr.
Jack could have been bias in his decision even if it was not the case, because of his
interest in the horse race.

Relying on the case Meerabaux v AG of Belize the Board accepted that

now that law on this issue has been settled, the appropriate way of doing
this in a case such as this, where there was no suggestion that there was a
personal or pecuniary interest, was to apply the Porter v Magill test. The
question was, therefore, what the fair-minded and informed observer would
think. Lord Hope claimed that the observer would, of course, consider all the
facts which put Mr. Arnolds membership of the Bar Association into its
proper context.

Remedies

The remedy for Mr.Nola and Mr. Brown can be that of Section 5(2) in the AJA,
madamus where the court can compel a public authority that being the PSC to
exercise its function properly. Another remedy is that of certiorari where the courts
can quash the decision of Mr Jack. Mr. Jack would have acted unlawfully in his
decision knowing that he had a personal interest in the matter, that of his sons
horse being in the race. Finally, there is the declaratory judgement where the
actions of the Mr. Jack can be said to be unlawful. The reasons for these remedies
would be to give the claimant what he or she wants.

NOTES FROM VENTOSE

Issues

Whether the BTC is a body subject to judicial review ?

Whether the PSC is a body subject to judicial review?

Whether Mr. Nola and Mr. Brown had locus standi?

Whether Mr. Nola was given adequate notice of the charge?

Whether Mr. Nola had the right to an adjournment?

Whether Mr. Nola had the right to call witnesses?

Whether Mr. Nola had the right to cross examination?

Whether Mr. Nola should have been given reason for his charge?
Whether there was bias? (Automatic disqualification- personal interest in
the matter)

Apparent Bias:

Three types of bias

1. Pecuniary interest
2. Personal interest
3. Propriety interest
4. Promoting a cause

All the best in your revision.