Sun International (bahamas) Ltd v Missick

JurisdictionBahamas
JudgeSawyer, P.,Ganpatsingh, J.A.,Osadebay, J.A.,Sawyer, P
Judgment Date08 May 2002
Neutral CitationBS 2002 CA 11
Docket NumberCivil Appeal No. 6, 2002
CourtCourt of Appeal (Bahamas)
Date08 May 2002

Court of Appeal

Sawyer, P.; Ganpatsingh, J.A.; Osadebay, J.A.

Civil Appeal No. 6, 2002

Sun International (bahamas) Limited
and
Missick
Appearances:

Ms. Paula Adderley, Mr. J Ferron Bethell with her for the intended appellant.

Mr. Rawson McDonald for the intended respondent.

Practice and Procedure - Application for leave to appeal out of time — Application for an extension of time within which to file such appeal — Intended appeal against the decision of the Industrial Tribunal — Whether the time limit for such appeals was four weeks or six weeks — Teachers and salaried workers Co-operative Credit Union Ltd v. Lockhart [1989—90] 1 L.R.B. 472 considered — Finding that the time limit for appeals in practice was six weeks — Finding that the court in the teachers and salaried worker case erred by resorting to section 8 of the Court of Appeal Act and this Court was justified in declining to follow that decision — Applications granted.

Sawyer, P.
1

The intended appellant applied by summons filed 6 February 2002 for leave to appeal out of time, the decision of the Industrial Tribunal (“the Tribunal”) given 18 December 2001 and for an extension of time within which to file such appeal.

2

If the time limit of 4 weeks for such appeals as stipulated by this court (differently constituted) in Teachers and Salaried Workers Co-operative Credit Union Ltd v. Lockhart (1989-90) 1 L.R.B. 472 (“the Teachers and Salaried Workers case”) applied then the time for filing a notice of motion in this Court would have elapsed on 3 January 2002. On the other hand, if the time limit is 6 weeks as is presently prescribed for appeals from final decisions in other civil matters, then the time limit would not have expired until 17 January 2002.

3

It was important for this court to determine which of the two periods of time applied since that could affect its decision whether or not to grant leave to appeal out of time, bearing in mind all other matters which it must consider on such applications.

4

Bearing in mind the principles laid down in Young v. Bristol Aeroplane Co Ltd [1944] K.B. 718, when the application first came before this court, it was adjourned for counsel on both sides to undertake further research in order to assist this court in deciding whether or not to follow the earlier decision in the Teachers and Salaried Workers case. Counsel were also invited to make submissions on the significance of the omission from the judgment in the Teachers and Salaried Workers case of any reference to section 68 of the Interpretation and General Clauses Act (Ch 2) of the 1987 Revised Edition of the Statute Laws of The Bahamas as well as the true construction of rule 13 of the Court of Appeal Rules (SL Vol. 1 p 441 et seq).

5

At the resumed hearing, after hearing counsel on both sides, we gave leave to appeal out of time and extended the time for service of the notice of motion by the appellant to 7 days from the date of hearing. We promised to put our reasons in writing later because we were not following the earlier decision. These are my reasons.

6

The history of the appeal provisions in the Industrial Relations Act (Ch 296) (“Ch 296”) and its predecessor, the Trade Union and Industrial Conciliation Act (No 30 of 1958) — Ch 41 in the 1965 Revision of the Statute Laws of the Bahama Islands — is instructive.

7

The 1958 Act made no provision for any appeal to this court since, at that time, this Court did not exist.

8

Section 90(1) of the 1963 constitution provided for the creation of a court of appeal for the Bahama Islands, which was to have such powers, and jurisdiction “as may be provided by any law for the time being in force in these islands”. The Court of Appeal Act (No 48 of 1964) now (Ch 40) of the 1987 Revision of the Statute Laws of The Bahamas, was passed on 29 December 1964 and came into force on 7 January 1965.

9

Provision was first made in what is now Ch 296 for the establishment of ad hoc arbitration tribunals by Act No 4 of 1979 which added a Fourth Schedule to Ch 296. That Schedule was amended by Act No 4 of 1981 and was repealed and replaced by Act No 9 of 1996. There is no express provision in Ch 296 for the procedure to be followed in appeals from decisions of any of the bodies created by Ch 296 nor of the time within which such appeals should be launched.

10

By section 7 of the Court of Appeal Act, and subject to the provisions of that Act, the President of this court may make rules of court –

  • “c) generally with respect to all matters of practice and procedure relating to the exercise of the jurisdiction of the court.”

11

By Statutory Instrument No 110 of 1965 the then President of the court made rules of procedure under that section (“the Rules”). The Rules came into force on 29 May 1965. Rules 11 and 13 of the Rules are contained in Part II of the Rules, which deals with civil appeals. Unless the Rules offend some principle of law, or special procedural rules are made, the Rules would apply to all appeals to this Court from the decisions of any court or authority where such rights are conferred by statute.

12

Rule 11(1) provides that an appeal to the court “shall be by way of hearing and shall be brought by notice of motion in Form 1 in Appendix A…”. That is the form generally used for appeals from the Tribunal.

13

Rule 11(4) is similar to Order 59, rule 3(5) of the English Rules in that both rules require the service of a notice of appeal on all the parties affected by the decision under appeal. Henry, P., did not, however, say whether the English Order 59, rule 3(5) applied to appeals from the Tribunal as opposed to Rule 11(4) nor is there any mention of the effect of Rule 11(1) on appeals from the Tribunal. In addition no express mention is made of rule 13 of the Rules nor any analysis of its provisions made in the judgment in the Teachers and Salaried Workers case.

14

Rule 13 of the Rules reads:

  • “13. Every notice of appeal shall be filed, and a copy thereof shall be served under paragraph (4) of rule 11 hereof within the following periods (calculated from the date on which the judgment or order of the court below was signed, entered and otherwise perfected), that is to say:–

  • (a) in the case of an appeal from an interlocutory order, fourteen days;

  • (b) in any other case, six weeks.”

15

When Ch 296 came into force on 1 March 1971 the Rules of this court were already part of the law of the Bahama Islands and so must have been in the contemplation of Parliament when it enacted section 70 of Ch 296 giving a right of appeal to this court directly from the Industrial Relations Board for the first time. The Industrial Relations Board was not, and is not now a court of law in the sense in which that term is normally used.

16

This court, like all superior courts of record, has the power, even apart from the express statutory provisions to control its own procedure and the time within which appeals are to be filed is a matter of procedure. Further, unless it would lead to manifest absurdity, this court ought first to consider its own rules before considering statutory rules which while they may be in pari materia, may also be based on statutory provisions which have no counterpart in local legislation.

17

It is arguable, although it does not appear in the judgment in the Teachers and Salaried Workers case, the court in that case may well have considered that the words in brackets in rule 13, by referring to “court” restricted the operation of that rule to decisions of courts of law exclusive of other bodies from whose decisions appeals lie directly to this court. The difficulty would be though, that the same word “court” appears without parentheses in the English RSC 59 rule 4(1). If that word is to be given a restricted interpretation where it appears in parentheses in rule 13, then a fortiori, it would do so in the context of the English rule since there it is part of the general provision and not a parenthetical example and also because it is only by an express statutory provision that the Employment Appeal Tribunal in England may be considered part of the High Court. As far as this court is aware, there is no statutory provision in The Bahamas which equates the Tribunal with the Supreme Court or other court of law.

18

While in a proper case, section 8 may be used to incorporate English rules of procedure by reference, such incorporation under that section is only to be resorted to when there is no local procedural rule which can be applied, interpreted or construed to give effect to the exercise of the right of appeal conferred by statute. That provision is not to be prayed in aid where there is another method o' construing the local legislation that will give effect to the local statute without offending any other law.

19

In that regard, I bear in mind the statement of Viscount Simon, L.C. in Nokes v. Doncaster Amalgamated Collieries Ltd [1940] A.C. 1014 at page 1022 t the principles of statutory construction. His lordship said:–

“The principles of construction which apply in interpreting such a section are well established; the difficulty is to adapt well established principles to a particular case of difficulty. The golden rule is that the words of a statute must prima facie be given their ordinary meaning…. Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words, but where, in construing general words the meaning of which is not entirely plain there are adequate reasons for doubting whether the Legislature could have been intending so wide an interpretation as would disregard fundamental principles, then we may be justified in adopting a narrower construction. At the same time, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction...

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