Alburys Freeport Ltd v The Minister of Labor

• Jurisdiction: Bahamas
• Judge: Forbes J
• Judgment Date: 14 November 2024
• Docket Number: Claim No. 2024/PUB/con/FP/0001
• Court: Supreme Court (Bahamas)

Between:

(1) Alburys Freeport Limited

(2) Stephen Albury

Claimants

and

(1) The Minister of Labor

(2) The Vice President of the Industrial Tribunal

(3) The Attorney General of the Commonwealth of the Bahamas

Defendants

BEFORE:

The Honourable Mr. Justice Andrew Forbes

Claim No. 2024/PUB/con/FP/0001

IN THE SUPREME COURT

Public Law Division

APPEARANCES:

Jacey Wittaker for the Claimants

Sophia P. Thompson — Williams for the Defendant

RULING ON LEAVE APPLICATION

Forbes J

INTRODUCTION

1 This application before the Court is for leave to appeal this Court's decision made on 25 October, 2024. In which the Court dismissed the application for constitutional relief due to inter alia the Applicant's claim not meeting the Article 28 proviso.

2 This application for Leave to appeal the Judgement was filed on 30 October, 2024 as well as its Affidavit in Support.

3 The grounds for appeal, in part, are as follows:

• a. The ruling raises significant constitutional questions with concern to the application of Article 28 of the Constitution;

• b. The Tribunal in relying on section 57(3) of the Industrial Relations Act permits procedural overreach;

• c. The alleged use of unwritten rules and inconsistent practices are contrary to the to the rules of natural justice and denies them predictability;

• d. Alleged ongoing procedural violations require immediate constitutional intervention to prevent further rights infringement;

• e. Allowing the Tribunal to proceed while questions concerning the constitutionality of their procedure remain unresolved will create a risk of conflicting judgements and repetitive legal processes;

• f. The appeal holds a reasonable chance of success;

• g. An order;

BACKGROUND

4 The brief background to this matter is that on 30 May 2024 the Claimants filed an Originating Notice of Motion. The Claimants sought reliefs in the form of a declaration that the Tribunal's procedural conduct violated the constitutional protections of the claimant, specific court orders mandating the Tribunal to comply with the procedural norms and Costs. The Claimants rely only on the Affidavit of Stephen Albury filed on the 14 July, 2024.

5 The Claimants filed an Affidavit ofService on the 6 June, 2024. A Notice of Application along with a Certificate of Urgency was filed on the 12 June, 2022. The application sought to stay the proceedings in the Industrial Tribunal against the First Defendant until determination in the Originating Notice. The Affidavit of Stephen Albury in support of the application was filed on the 14 June, 2024. An Acknowledgement of Service was filed on the 20 June, 2024. On the 24 June, 2024, an Order dated the 21 June, 2024 was filed. The Order made by this Court granted the stay of pending proceedings in the Industrial Tribunal.

6 The Defendant filed an Acknowledgement of Service on the 20 June, 2024, in which laid out its Defence to the application for stay as well as the substantive application before the Court. Further, in Support of the Defendant's Claim, an Affidavit in Opposition to the Notice of Motion for Constitutional Relief was filed on the 26 July, 2024.

7 In a written decision the Court granted judgment as described in paragraph 1 above.

THE APPLICATION

8 The current grounds for the leave to appeal, in brief, are as follows:

• a. The ruling raises significant constitutional questions, including the interpretation of Article 28 and the right to immediate constitutional relief for ongoing procedural breaches. The Applicants argue that the learned Judge erred in concluding that an appeal following the final decision of the Industrial Tribunal provides an adequate remedy, despite the continuing impact of these breaches on the Applicants” rights.

• b. The Applicants contend that the Tribunal's reliance on Section 57(3) of the Industrial Relations Act has permitted procedural overreach, including arbitrary ex parte decisions and improper summonses, compromising procedural fairness, which merit appellate review.

• c. That the Tribunal's use of unwritten rules and inconsistent practices denies them procedural predictability and transparency, contrary to the principles of due process.

• d. The learned Judge's failure to address these procedural irregularities impacts the Applicants” right to a fair hearing and warrants appellate examination;

• e. The Applicants submit that ongoing procedural violations require immediate constitutional intervention, as recognized in Minister of Home Affairs. Fisher and Maharaj. Attorney-General of Trinidad and Tobago (No. 2), where timely redress was provided to prevent further rights infringement. This appeal seeks to clarify the availability of real-time constitutional remedies when procedural rights are at risk during ongoing proceedings.

• f. Permitting the Tribunal to proceed while the constitutional questions remain unresolved creates a substantial risk of conflicting judgments and duplicative legal processes. An appeal would ensure that the constitutional issues are resolved in that promotes judicial economy, fairness, and a manner consistency.

• g. The appeal holds a reasonable prospect of success and raises issues of public.

EVIDENCE

9 The evidence in support of this application is the Affidavit of Sheila Taylor, which reads more as submissions rather than evidence as required by Part 30(3) of the Civil Procedure Rules (CPR), states, in part:

• a. That she is a Paralegal employed at the law firm of Messrs. Parris Whittaker, and she is authorized to make the Affidavit on behalf of the Claimants.

• b. That the Article 28 is designed to prevent ongoing rights violations;

• c. That the ruling of the Court allows the Tribunal to exercise powers beyond the intended scope of Section 57(3);

• d. That the Tribunal's employment of inconsistent practices denies the Claimants transparency and predictability in proceedings.

• e. That an appeal following the Tribunal's final decision would be insufficient to address ongoing breaches impacting procedural fairness; and

• f. The appeal raises issues of public importance concerning the procedural safeguards within administrative tribunals and enforcement of constitutional rights.

10 Both Counsel laid over submissions to the Court to which the Court considers in its judgement.

LAW

11 Firstly, the requirement for leave to appeal only applies to interlocutory orders. Section 11 (f) states:

“11. No appeal shall lie …,

(f) without the leave of the Supreme Court or of the court from any interlocutory order or interlocutory judgment made or given by a Justice of the Supreme Court except;

• (i) where the liberty of the subject or the custody of infants is in question;

• (ii) where an injunction or the appointment of a receiver is granted or refused;

• (iii) in the case of a decree nisi in a matrimonial cause or a judgment or order in an Admiralty action determining liability;

• (iv) in the case of an order in a special case stated under the Arbitration Act;

• (v) in the case of a decision determining the claim of any creditor or the liability of any contributory or the liability of any director or other officer under the Companies Act in respect of misfeasance or otherwise; or

• (vi) such other cases to be prescribed as are in the opinion of the authority having power to make rules of court, of the nature of final decisions.”

Therefore a final order does not require leave to appeal.

12 When determining what is a final order the decision of Peace Holdings v First Caribbean Bank [2014] 2 BHS J No. 73 is helpful, as it applied the Privy Council ruling of Salaman v Warner and Others [1891] 1 QB 734 at 735, the Court of Appeal determined that:

‘The question must depend on what would be the result of the decision of the Divisional Court, assuming it to be given in favour of either of the parties. If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final but interlocutory’.”

13 The Court dismissed the substantial constitutional claim and therefore disposed of the matter in dispute. Had the Court ruled for the Plaintiff, the matter too would be disposed of and, therefore, the Court is of the view that the order is final and does not require leave.

14 Nonetheless, in the instance the Court of Appeal is of the view that the matter is interlocutory the relevant law is discussed below.

15 The law in relation to leave to appeal is well established. Section 11(f) (ii) states that no appeal of an interlocutory Order shall lie without leave to appeal.

16 The test to be applied for the consideration for grant of leave to appeal is stated in Practice Direction (Court of Appeal: Leave to Appeal and Skeleton Arguments) [1999] 1 WLR 2 at para 10-11:

“The general test for leave

10. The general rule applied by Court of Appeal, and this is the relevant basis for first instance courts deciding whether to grant leave, is that leave will be given unless an appeal would have no realistic prospect of success. A fanciful prospect is insufficient. Leave may also be given in exceptional...