City Markets Ltd v Bahamas Commercial Stores, Supermarkets and Warehouses Workers Union et Al

JurisdictionBahamas
JudgeOsadebay, Sr. J.
Judgment Date28 June 2000
CourtSupreme Court (Bahamas)
Docket Number828 of 1996
Date28 June 2000

Supreme Court

Osadebay, Sr. J.

828 of 1996

City Markets Ltd
and
Bahamas Commercial Stores, Supermarkets and Warehouses Workers Union et al
Appearances:

Mr. Andre Rahming, Reno Bethell and Leroy Smith for the plaintiff.

Mr. Harvey Tynes, Q.C., Mr. Darrell Rolle and Mr. Clyde Newton for the 1st defendant.

Mr. Thomas Evans, Q.C., Mr. Wayne Munroe, Mr. Norwood Rolle and Ms. Carla Demeritte for the 2nd and 3rd defendants.

Industrial Law - Trade Unions — Recognition of Trade Union — The plaintiff applied for declarations (i) that the Minister erred by not reflecting the first defendants claim as a trade union to be registered as a bargaining agent (ii) that a determination made by the Minister was not a lawful determination within the meaning of the Industrial Relations Act — The first defendants applied to the court to strike out or dismiss the action of the plaintiff in accordance with Rules of the Supreme Court Order 18 R 19 that the application was (i) vexations or an abuse of the court process (ii) prejudicial to the defendant due to delay in proceeding — the other defendants also applied to have the action dismissed or strike out.

Osadebay, Sr. J.
1

Before me in this matter are two applications, one on behalf of the second and third defendants filed on the 19th. May, 2000, and the other on behalf of the First defendant filed on the 28th, of April, 2000, both seeking similar relief i.e. that the plaintiff action be struck out.

2

The first defendant's application asks that the action be struck out or be dismissed:

1
    ) “Under the inherent jurisdiction of the Court and under Order 18, rule 19 of the Rules of the Supreme Court (R.S.C.) on the grounds (sic) that the same is frivolous or vexatious and an abuse of the process of the court.” 2) “for want of prosecution under the inherent jurisdiction of the court on the ground that the plaintiff has been guilty of prolonged or inordinate and inexcusable delay in proceeding with this action to the prejudice of the first defendant.”
3

The application of the 2nd. and 3rd. defendants seeks an Order that the writ of summons be struck out and action dismissed:

1
    ) “Under the inherent jurisdiction of the court and under Order 18, rule 19 of the R.S.C. on the ground that the same is frivolous, or vexatious and an abuse of the process of the court, the plaintiff having commenced this action by the wrong process.” 2) “That this action be dismissed as against the second defendant as the same cannot be maintained having regard to the provisions of the Crown Proceedings Act.”
4

The Minister as a party:

5

I shall deal first with the ground that this action should be dismissed against the 2nd. defendant, the Minister of State for the Public Service and Labour.

6

In this action, the plaintiff claims a declaration that the Minister of State for the Public Service and Labour ought to have rejected the First defendant's claim (i.e. the Trade Union) to be recognised as bargaining agent upon its referral to him by the trade union. The plaintiff, inter alia, claims a declaration that the determination made by the Minister and evidenced or reflected in the certificate or document dated 19th. July, 1996, is not a lawful determination within the meaning of that term as contained in the Industrial Relations Act. In short, the plaintiff challenges the validity of determination made by the Minister in the execution of the duty vested in him as such under the provisions of the Industrial Relations Act. The definition of “Officer” under the provisions of the Crown Proceedings Act, Chapter 5'7 relation to the Crown includes a Minister of the Crown in Her Majesty's Government of The Bahamas. This action is based on the Minister's action as such in the course of his duty as a Minister of the Crown in Her Majesty's Government of The Bahamas.

7

Counsel for the 2nd. defendant, Mr. Thomas Evans, Q.C. submits that the Minister i.e. the 2nd. defendant ought not to have been made a party to these proceedings on the ground that section 12 of the Crown Proceeding Act provides that civil proceedings by and against the Crown shall be instituted by or against the Attorney General. The Minister is an Officer of the Crown as defined in section 2 of the Crown Proceedings Act. Section 12(1) of the Crown Proceedings Act provides as follows:

“Civil Proceedings by or against the Crown shall be instituted by or against the Attorney General.”

8

Mr. Evans therefore submits that the action against the Minister is frivolous and vexatious and an abuse of the process of the court and that the Minister should therefore be dismissed from these proceedings.

9

In answer to Mr. Evans’ submission above Mr. Rahming, Counsel for the plaintiff argues that the Minister is a proper party but unfortunately he fails to deal with the express provisions of section 12(1) of the Crown Proceedings Act. He refers me to Dyson v. Attorney General [1911] 1 K.B. 410. Upon reading the case however I am of the impression that in that case the plaintiff was arguing the reverse, i.e. that the Attorney General was a proper party. I have not been assisted by that authority in dealing with the point raised by Mr. Evans with regard to the construction of section 12(1) of the Crown Proceedings Act. I accept the submission of Counsel for the 2nd. defendant that the 2nd. defendant in view of the express provisions of section 12(1) of the Crown Proceedings Act ought not to have been made a party to these proceedings and I therefore dismiss the 2nd. defendant from this action. I order no costs since the Minister by Statute is represented by the Attorney General, the 3rd. defendant.

10

I now proceed to deal with the first point raised by Mr. Evans, also Counsel for the 3rd. defendant in these proceedings.

11

Order 53 Rules of the Supreme Court (R.S.C.)

12

It is Mr. Evans’ submission that the Writ of Summons should be struck out and the action dismissed against the 2nd. and 3rd. defendants on the ground “that the same is frivolous, or vexatious and an abuse of the process of the Court, the plaintiff having commenced this action by the wrong process.” As I understand it, Mr. Evans’ point is that since the Plaint i is in reality challenging the act of a Minister of the Crown done in the execution of his duty pursuant to the authority vested in him pursuant to provisions of a statute, the plaintiff ought to leave proceeded by way of Judicial Review under Order 53 of the Rules of the Supreme Court (R.S.C.) instead of by way of a Writ of Summons as it has done. For that reason he submits that the action is “frivolous, or vexatious” and the plaintiff is guilty of an abuse of the process of the court.

13

In order to deal with his submission it is necessary to consider the procedure which has been adopted by the plaintiff against the background history to Order 53 of the R.S.C. as it is now in the Bahamas.

14

The Supreme Court Act, 1996, Act No. 15 of 1996, came into effect on the 1st January, 1997. (See S.I. No. 104 of I 99b.) Sections 17, 18 and 19 of the said Supreme Court Act of the Bahamas which deal with the subject of Judicial Review enact provisions identical to similar provisions appearing in the Supreme Court Act, 1981 of the United Kingdom. Following that, Order 53 of the R.S.C. of the Bahamas was revoked and replaced by a new or the existing Order 53 which provisions are also similar to like provisions of Order 53 of the Rules of the Supreme Court of the United Kingdom as

15

PAGE 7 MISSING

16

The question for me therefore is: whether prior to the enactment of the provisions of sections 17, 18 and 19 of the Supreme Court Act, 1996, which became effective on the 1st. January, 1977 and the making of the new or now existing Order 53 thereafter, it was an abuse of the process of the court to apply for declarations by using the procedure laid down in the Rules of the Supreme Court for proceedings begun by Writ or by Originating Summons instead of using the procedure laid down by Order 53 of the R.S.C. as it was prior to the enactment of the Supreme Court Act, 1996, and the replacement of Order 53 made thereafter.

17

Counsel for the plaintiff submits that “the Supreme Court has jurisdiction to hear this case began by Writ because it is in accordance with the R.S.C. and it is not an abuse of the process of the court to seek declarations of the conduct of public officials and the protection of personal rights as existed prior to 1997.” He submits that “since the case of O'Reilly if the plaintiff is seeking the protection of a personal right at the same time as calling into question a decision by a public authority the court should allow the action to proceed even though begun by Writ.” Let me say that whereas I accept the above last statement by counsel for the plaintiff, that may not be the case here. I have already stated what I perceive to be the question raised by the submission made by counsel, Mr. Evans. The particulars of claim in this matter do not appear to plead that any personal right of the plaintiff is being violated.

18

The question which in my opinion Mr. Evans’ submission raises and which I have infact stated earlier was dealt with by Lord Diplock in O'Reilly v. Mackman [1983] 2 A.C. 237. In that case Lord Diplock, with whose opinion the rest of their Lordships agreed, dealt exhaustively with the law and practice as they were prior to the alterations of Order 53 in 1977 in England and the disadvantages which applicants seeking Order of mandamus, Prohibition, Certiorari etc. were faced with. I need not here rehearse them. With regard to the use of actions for declarations of nullity of decisions affecting the rights of individuals under public law prior to the alterations of Order 53 in 1977 in England, he said:

“My Lords, the power of the High Court to make declaratory judgments is conferred by what is now R.S.C. Ord. 15, r. 16. The...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT