Weel v the Attorney General and the Dental Council

JurisdictionCaribbean States
CourtCaribbean Court of Justice
JudgeNelson, J.CCJ.
Judgment Date22 Jan 2013
Docket NumberCCJ Application No. BBCV 5 of 2013; BB Civil Appeal No. 4 of 2009

Caribbean Court of Justice

Nelson, J.CCJ.; Wit, J.CCJ.; Hayton, J.CCJ.

CCJ Application No. BBCV 5 of 2013; BB Civil Appeal No. 4 of 2009

Weel
and
The Attorney General and the Dental Council
Appearances

Mr. Bryan L Weekes for the applicant.

Mrs. Donna K Brathwaite QC and Mrs. Marcia Thompson-Cumberbatch for the 1st respondent.

Mr. Gregory Nicholls and Ms. Alicia J Dowell for the 2nd respondent.

Civil practice and procedure - Appeal — Special leave application where there was issuance of Certificate of Non-Compliance — Whether there was a good and arguable case.

SUMMARY
1

On October 28, 2011 the applicant obtained special leave from the Court of Appeal of Barbados to challenge its decision upholding the constitutionality of rule 14(2)(b) of the Dental Registration Rules. The grant of leave was made subject to two conditions, namely the payment of security for costs in the amount of $10,000.00 and the filing of a list of documents, both of which were to be done within ninety (90) days of the order. The Appellant failed to make the required payment but did file the list of documents within the 90 day time frame. Thus the matter stood for almost two years.

2

On October 11, 2013 the applicant approached the Registrar of the Supreme Court of Barbados seeking the issuance of a certificate of non-compliance as provided for by rule 10.10 of the Caribbean Court of Justice Appellate Jurisdiction Rules, as amended. The Registrar's certificate was issued on October 23, 2013 and served the next day. Seizing upon this opportunity, the Appellant sought to revive the litigation was applying directly to the CCJ for the grant of special leave.

3

In disposing of this application the Court examined the procedural scheme governing special leave applications, with particular emphasis on post-rescission applications, i.e. where an application for special leave is being made against the backdrop of the issuance of a certificate of non-compliance. It noted that such applications are governed by the usual test for all ordinary applications for special leave, namely that there is a good arguable case having a realistic chance of success. However two further requirements must also be met. First, there must be good and substantial reasons for the noncompliance with the order of the Court of Appeal. Second, there must be good and substantial reasons explaining any delay between the expiration of the time-frame set by the Court of Appeal's order and the post-rescission application seeking special leave before the CCJ. Based on the information presented neither requirement was met.

4

The Court was not persuaded by the applicant's contention that he did not have sufficient funds in hand to make the requisite payment for security within the 90 day time frame, holding that standing alone this “bald assertion” was not sufficient reason for noncompliance. Breach of a court order is a serious matter requiring a “contrite but coherent explanation” which the applicant failed to provide. Neither did the Court accept that the reason for the delay lay with the Registrar who failed to issue the notice of noncompliance promptly, as required under rule 10.10. It noted that the purpose of the certificate is to bring closure to the appeal and enable an assessment of costs to be undertaken. Therefore any delay in its issuance is not material in seeking to explain the delay in approaching the Court directly seeking special leave to appeal. The Court also held that the applicant's attempted analogy utilising a trilogy of earlier decisions of the Court, that of Scantlebury v. A.G. [2011] CCJ 3 (AJ); (2011) 77 W.I.R. 57, Hawkesworth v. A.G [2011] CCJ 2 (AJ); (2011) 77 W.I.R. 57. and Gaskin v. A.G. [2011] CCJ 1 (AJ); (2011) 77 W.I.R. 57 was misconceived in that those cases involved applications seeking an extension of time to make the special leave application and in any event were wholly unsuccessful, being roundly rejected by the Court.

5

Thus the Court dismissed the applicant post-rescission application for special leave with costs to be assessed, if not agreed, and paid to the First and Second respondents.

Nelson, J.CCJ.
1

The applicant, Dr. Freddy Oystein Weel, obtained conditional leave to appeal to the Caribbean Court of Justice (“the Court”) from the Court of Appeal. The applicant did not comply with the conditions imposed by the Court of Appeal, and thereafter applied directly to this Court for the grant of special leave to appeal. The central issue is whether the applicant in making an application for special leave in such circumstances merely puts the abortive application to the Court of Appeal behind him and is entitled to special leave from this Court by showing that he has an arguable case having a realistic chance of success on appeal.

THE APPLICATION
2

The applicant, Dr. Weel, filed an application dated November 12, 2013, supplemented by two separate appendices filed on November 14, 2013 and December 5, 2013 respectively. The applicant seeks an order that he be granted special leave pursuant to section 8 of the Caribbean Court of Justice Act (“the Act”) and Rule 10.12 of the Caribbean Court of Justice (Appellate Jurisdiction) Rules 2005 as amended (“the Rules”) to appeal against an order of the Court of Appeal made on July 8, 2011.

3

On March 22, 2006 the applicant filed a constitutional motion seeking certain declarations and an order striking down rule 14(2)(b) of the Dental Registration Rules 1973 on the ground that it was overbroad in that it had the effect of unreasonably restricting the applicant's right to freedom of expression guaranteed under the Constitution of Barbados.

4

On February 20, 2009 the High Court dismissed the action and the applicant appealed to the Court of Appeal. The Appeal was heard on December 7, 2009 and judgment dismissing it was delivered on July 8, 2011.

5

On August 10, 2011 the applicant filed an application seeking leave to appeal as of right to the Court. On October 28, 2011 leave to appeal to this Court was granted by the Court of Appeal subject to certain conditions. The material terms of the order were as follows:

“That the Appellant is granted leave to file his Notice of Appeal in this matter upon the following conditions:

  • 1.1 That he pays the sum of $10,000.00 into Court as security for costs in this matter within 90 days of the date of this Order; and

  • 1.2 That he files the required List of Documents with the proper officer within 90 days of the date of this Order in accordance with Rule 10.6 2(a) and (b) of the Caribbean Court of Justice (Appellate Jurisdiction Amendment) Rules, 2008.”

6

The applicant did not pay the sum of $10,000 into Court as ordered or at all but did file the required list of documents on the last day of the 90-day time limit, i.e. January 27, 2012.

7

By letter dated September 18, 2013 Counsel for the Second respondent, Mr. Nicholls, reminded counsel for the applicant of the applicant's non-compliance with the Court of Appeal's order and gave notice that unless the applicant rectified his non-compliance with the order within 28 days, he would apply “to have the Appeal (sic) struck out and … for the costs in the proceedings.”

8

Counsel for the applicant by letter dated October 11, 2013 to the Registrar of the Supreme Court, acknowledged that his client had failed to pay the sum of $10,000 “within 60 (sic) days of the date of the Order”, and invited the Registrar to issue a certificate of non-compliance “so that the Appellant may apply for special leave to appeal to the Caribbean Court of Justice in accordance with Part 10.12….”

9

The Registrar of the Supreme Court belatedly issued on October 23, 2013 a certificate of non-compliance, which was served on the applicant on October 24, 2013. Thereafter on November 14, 2013 the applicant filed this application for special leave to appeal pursuant to Rule 10.12 as narrated above.

10

The certificate of non-compliance recited the relevant condition of the Court of Appeal's order for payment of $10,000 as security for costs “within 60 days (sic)” and certified that the applicant had failed to comply with that condition within the time prescribed.

11

The dates critical to the instant application filed on November 14, 2013 are:

  • (i) the date of the Court of Appeal's order of October 28, 2011;

  • (ii) the date of the expiry of the time for compliance, January 27, 2012; and

  • (iii) the date of administrative rescission under Rule 10.10(4) of the Court of...

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