Regina v Industrial Disputes Tribunal

8/13/2019 Regina v Industrial Disputes Tribunal

1/22

, ( SUPREME OURT LlBRAa\'KINGSTONJ ~ CSldtj J .6 yviCIN THESUPREME COURT OF JUDICATUREOF JAMAICACLAIMNO. 2009 HCV 04798BETWEEN REGINA CLAIMANTAND INDUSTRIALDISPUTESTRIBUNAL DEFENDANT(ExparteJ. Wrayand Nephew Limited)IN CHAMBERSConradGeorgeand Kimone Tennant for J. Wrayand NephewLimitedLord AnthonyGifford.Q.C. for theUnion of Clerical Administrative andSupervisoryEmployeesLackston Robinson and Michelle Shand instructed by the Director ofState Proceedings for the Industrial Disputes Tribunal

October14, 15 and 23, 2009APPLICATIONFOR LEAVE TO APPLY FOR JUDICIAL REVIEW-

WHETHERUNION CANBE HEARD ATLEAVE STAGE- TESTFORLEAVE TO APPLY FOR JUDICIAL REVIEW - CIVIL PROCEDURE RULES- PART 10 - PART 56 - RULES 1.1 (1), 1.2, 2.2, 2.2 (1), 2) and (3),56.3, 56.3 (1). 56.3 (2), 56.3 (3), 56.4 (4). 56.4 (1), 56.4 (2), 56.43),56.4 3) 0),56.4 8), 56.11 5),56.12.56.13(2) (c), 56.15

LABOUR RELATIONSANDINDUSTRIALDISPUTESACT SECTION 12 4) C), SECTION12(5)C) (1) - SECTION 3(3)OFTHE

EMPLOYMENT(TERMINATIONAND REDUNDANCY PAYMENTS)ACT

SYKES J.1. The old has gone. The new has come. Old things are past away. Allthingsarebecome new. This is the stridentmessage of the new CivilProcedure Rules ("CPR"). Whatevermay have existed in the past donot control the CPR. We are to look at the rules as new rules andinterpretand apply themaccordingly.Wearenot to keep looking backto see whatinthe new rulesarethe equivalentof what existed in theold and thentry to interpretthenew rulesas i theyweresimplyan
http:///reader/full/5),56.12.56.13http:///reader/full/5),56.12.56.13


2/22

, .

updateof the old the rules.Letus keeppressingtowardsthe markofdealing with cases justly in accordance with the spirit and ethosofnew rules.

2. Part56 is new and hasnew features. It where possible, assimilatesjudicial reviewto ordinaryactions.Thefull rangeof casemanagementpowers as would exist in an ordinary action is imported withoutexclusionof any poweravailable in case management into the judicialreview procedure (rule 56.13 (1. In fact the judicial reviewapplicationis referred toasaclaim (rule56.13 (1. Q3. That the rules are to readon their own and not in lightof the old isdemonstratedby rule1.1 (1) which hasthese importantwords:

These Rules are a new procedural code with theoverriding objective of enabling the court to dealwith cases justly.4. This is adeliberatewordingto indicateto the legal professionthat a

new dayhasdawned.5. The ruleseven provideaguiding principle in interpretingandapplying

them.Rule 1.2 states:The court must seek to give effe t to theoverriding objective when interpreting these rulesor exercising any powers given under these rules.

6. As Loughlin and Gerlis, authors of ivil Procedure 2nd ed (2004),noted at page 5,"An importantand distinctive innovation of the newruleswas the introductionof the overriding objective, this being toenablethe courtto deal with casesjustly. TheCPR are not meant tobe definitive of civil procedure and, instead, the court is given adiscretion in the application and interpretation of the rules to aparticularcase in accordancewith the overridingobjective .... This ismeantto facilitatethe operationofthe rules in order to do justiceinaparticularcaseand in orderto preventacomplexproceduralsystem

2


3/22

growing up around the rules based on a plethora of case lawprecedent.

7. The Same authors continued at page 10, The intention was to moveaway from the old civil procedure system where the rules had becomedense and convoluted, covering every eventuality and bound by caselaw precedent, to a system of procedural rules drafted in plain Englishwhich give the court a wide discretion to make decisions in order todeal justly with a particular case in accordance with the overridingobjective. As Lord Woolf expressed it 'Every word in the rules shouldhave a purpose, but every word cannot senSibly be given a minutelyexact meaning. Civil procedure involves more judgment and knowledgethat the rules can directly express: t is my view that Part 56 fallsto be considered in this light.

The facts8. This is an application for leave to apply for judicial review by J Wray

and Nephew Limited ( the company"). The company is seeking to havethe Supreme Court review the decision of the Industrial DisputesTribunal ( IDTII) which, after a hearing involving the company and theUnion of Clerical Administrative and Supervisory Employees ( theunion ), ordered that workers who were alleged to have beendismissed by reason of redundancy should be reinstated. The IDTfound that the company did not adhere to the set procedures laiddown in statutes, judicial precedents and guidelines for the equitableand fair implementation of the [redundancy] exercise (page 8 ofAward).

9. The company wishes to challenge the award on a number of bases. Theapplicant claims that the award is ultra vires; is wrong in law in thatthe IDT improperly interpreted and applied the Labour Relations Codeand wrongly found that the dismissal of the workers was unjustified;and that the decision to reinstate the workers is unreasonable.

The application for judicial review10. When the applicant first appeared before McDonald-Bishop J., i t wasfound that the application was not in compliance with rule 56.3. Theapplicant amended, and re-amended his application and i t is the re

3


4/22

amended application that is before me. Tlie"iearned judge directedthat the Attorney General and the union be served.

11. Lord Gifford Q.C. is now here representing the union. The AttorneyGeneral is represented by Mr. Lackston Robinson and Miss MichelleShand.12. Mr. Robinson has taken a number of preliminary points on this

application. Mr. George, gratefully, and with obvious relief, adoptedthe submissions of Mr. Robinson. Mr. George and Lord Gifford madesubmissions on the application for leave itself. Mr. Robinson declinedto make submissions on the application because he was of the viewthat that was unnecessary in light of his position that the union has noright to be heard at the leave stage.

The preliminary objections13. Mr. Robinson's primary objection is that at this stage - the application

for leave stage - the union has no right of audience and can only comein after leave has been granted and even then, the union can only comein i f the court sees fit. He relies on the entire Part 56 and inparticular rules, 56.13 (2) (c), 56.15. According to learned counsel, hisposition is reinforced by the fact that there is no right of appeal orany remedy available to the union i f leave is granted. There is nothingthat it can do i f leave is granted. Mr. Robinson submitted that theunion was not a person aggrieved and so has no basis to be present.According to counsel, the union has a decision in its favour and so hasnothing to challenge, thus, they have no locus standi to be here at theleave stage. He further submitted that the union is not challengingany decision made by the IDT.

14. t is always good, where possible to identify the ultimate firstprinciple from which ideas spring. This I have tried to do in the caseof Mr. Robinson'S submissions. t seems to me that his submissionshave their origin in the time before the year 1933 and subsequentdevelopments. The ultimate source of the proposition of the notionthat the union does not have a right to be heard at the leave stagecomes from ancient times. Before the reforms of 1933, the oldprocedure was that the person seeking judicial review would have to


5/22


6/22


7/22

wording), the judge must have a hearing, that is to say if the judge istending to saying no then the applicant must be heard rule 56.4 3)a.

21. Also the application for leave may be made without notice, obviouslyimplying that the applicant may serve the respondent. t is thereforetrue to say that at the leave stage the respondent need not be heardbut there is nothing to say that he cannot be heard.

22.Nowhere in Part 56 is it stated what the criteria are to be met if theapplicant desires to make the application an inter partes hearing.There is no threshold for the applicant to meet other than serving therespondent.

23.The only time a hearing is mandated at the leave stage is if the judgeis a) minded to refuse the application: b) the application includes aclaim for immediate interim relief: and c) it appears that a hearing isdesirable in the interest of justice rule 56.4 3. These conditionsare not cumulative though all three may arise in any one application.Once any of them is present in any application for leave, then that issufficient to trigger the hearing.

24.Rule 56.4 4) states that the judge may direct that notice of thehearing be given to the respondent or the Attorney General. t is tobe noted that even if a hearing is going to be held, the rule does notrequire that the respondent be informed. The rule merely permits thejudge to decide whether the respondent or the Attorney Generalshould be informed.

25.Significantly, the rule does not limit who can be at the hearing. Thereason is obvious. t is possible, as is the case before me that theremay be instances where the judge may wish to hear from otherpersons such as directly affected third parties. n this case, thecompany is seeking immediate interim relief for a stay of thereinstatement order, that is to say, the workers should notimmediately reap the benefit of an award in their favour by a properlyconstituted tribunal. The framers of the rule did not hamstring thejudge by putting in any restriction on who may be present. The reason

7


8/22

has to be that becauseonce interim relief is involved, there may beissues that affect the third party in ways that even the mostSolomonic of judges, the wisest of applicants and the mostperspicuous of respondents simply cannot foresee. The judgetherefore hasthe leeway to invitethe thirdpartyin order to hearhisviews on the matter. After hearing from the third party the judgemay decideto grantleavewithconditionsoron suchterms as appearsjust (rule56.4(8.

26.Even if rule 56.4 (8)were absent, the judgewould still have thosepowersbecausePart56isapart of the CPR and is therefore subjectto the overriding objective and the two rules referred to at thebeginning of this judgment. Dealing with cases justly must include apower to give directlyaffected partiesan opportunity to say how aparticularorder ofa courtmay affect him if the court considers itnecessaryto dojusticeto the parties.

27.Rule 2.2 (2) states that the expression civil proceedings, "includeJudicial Review and applications to the court under the Constitutionunder Part 56". The proceedings that are not regarded as civilproceedings by the CPR are insolvency (including winding up ofCompanies); proceedingswhen the courtacts asaPrizeCourt;andanyother proceedingsinstitutedin the courtby virtueof astatute and sofar as rulesmade underthat statute govern the proceedings.On theface of it, the only proceedings that are not regarded as civilproceedingsfor the purposesof the CPR havebeenclearlystated

28.There is certainly nothing in the rules that precludes the conclusionthat Part 56 is subject to the overriding objective of dealing withcases justly and I cannot see any rational reason why a court inseekingto disposeof an applicationfor judicialreview cannothaveaninterpartes hearingifthe judgeformsthe view that thisis necessaryfor ajust disposalof the application.

29.Inother words.the sheercommon senseof the matter makes itplainthat dealingwithacasejustlymustmean that acourt,should it thinknecessary, can hear from personswho may be directlyaffected bydecisionthe courtmay make

C

8


9/22

.

30.In this particular application there is a request for immediate interimrelief. Because of what it asks for justice, the circumstance clearlysuggests that disposing of the application justly would be betterserved if the court heard from the union.

31. The reason why the company had to ask for a stay is that the award,unless or until set aside, must be obeyed. The workers and the unionnow have a decision giving back the workers their jobs, or at least, ajob at the company even if the job they get back is not identical tothe one from which they were dismissed.

32 I now pose these questions: could a court, acting justly, grant a stayof the reinstatement order of the IDT without hearing from theworkers in circumstances where there is no suggestion that having aninter partes hearing could adversely affect the applicant? Could acourt, in the absence of urgent reasons, acting justly, delay theenjoyment of an award secured from a lawfully constituted tribunalwithout hearing from the person who is to benefit from the award?The answers must be no. Who is best able to articulate the interestof the workers in this Situation? Certainly not the company. Certainlynot the Attorney General.

C 33.Let us follow the logic of Mr. Robinson who contends that the unioncannot be heard at this stage. This is in the context of the AttorneyGeneral s position that it is not opposing the application. If thisapplication were heard ex parte or with just the Attorney Generalpresent, what might have happened is that the workers who expectedto be reinstated would be told that a court, without hearing fromthem, took the view that reinstatement should not take place, at thistime. This, in my view could not be fair in the absence of anycompelling reason for the court acting in this way. This to me iselementary justice that does not have to be articulated in any writtenrule. I do not find the consequence of the logic appealing and I do notaccept it. In any event, the real issue to my mind is not so muchwhether there is a right to be heard as it is whether it is within thepower of the judge to invite persons to make submission that canassist in the just disposal of the application.

9


10/22


11/22

.

56.13). While it is clear that any person who is directly affected mustnecessarily have a sufficient interest, it is not true to say that everyperson who has a sufficient interest is directly affected.

40.The expression directly affected was defined by the House of Lordsin R v Rent fficer Service nd another x porte MuldtlOll [1996] 1W.L.R. 1103. n that case, a local authority would be reimbursed upto95% of the money it spent on housing benefits for persons entitled tohousing benefit from the council. The Secretary of State for SocialSecurity sought to be made a party to judicial review proceedingsbrought by two applicants. The Secretary of State argued that he waSa person directly affected within the meaning of Order 53 r 5 (3).The House of Lords held that he was not because his liability wouldonly arise in the even that the local authority paid the housingbenefit. According to Lord Keith, directly affected by somethingconnotes that he is affected without the intervention of anyintermediate agency (page 1105),

41. The consequence of the distinction is that persons who are directlyaffected must be served with the claim form and affidavit afterleave and 14 days before the first hearing (rule 56.11 (1. This is aright to be served. The question then is why does the rule confer thisright to be served? t must be because, after leave, persons directlyaffected have a right to participate in the proceedings.

42.By contrast, persons not directly affected but with only a sufficientinterest are not conferred the same rights. They have lesser rights.They have no right to be served. They have no right to be served 14days before the first hearing. They may not be allowed to participatein the proceedings. This class of person is restricted to makingwritten submissions unless the court orders otherwise. No suchrestriction is placed on persons who are directly affected. Thequestion is why does the CPR treat the two classes so differently?Surely, there must be some underlying rationale for thiS, doublestandard , The rationale must be that persons directly affected havemore at stake than a person with merely a sufficient interest, Thedirectly affected person is affected without an intermediateagency, f this is so it makes perfect sense for the CPR to insist

11


12/22

that the directly affected persons be served and given full rights ofaudience. t is true that the rule does not say expressly that directlyaffected persons who have been served have full rights of audiencebut this must be one of the consequences of being within that class.f it is not so then distinguishing between the classes in this waywould be a meaningless exercise. This explains why there is no need tospell out the rights of audience in respect of persons directlyaffected. t is necessarily so.

43.The distinction between the two classes of persons is furthersupported by rule 56.11 (5) where the claimant must comply withelaborate measures to prove to the court that he has in fact servedpersons who are directly affected. Again, what is the goal of all this?The rule even refers to the persons directly affected and who havebeen served as defendants. Rule 56.12 states that evidence may befiled in answer for an administrative order. The answer must be byway of affidavit. Part 10 of the CPR applies to the answer. t couldnot simply be to give information. t appears from the rules that onlydefendants are permitted to file an answer. Persons with just asufficient interest do not appear to have this possibility open to them.They are restricted to making submissions only.

44.Indeed it is safe to say, that there has been a narrowing of the priorexisting differences between a judicial review application and an )action begun by way of a fixed date claim form. The general provisionsof the CPR apply to both. Part 56 is making the necessary adjustmentto include defendants because the historical origins of judicial reviewdo not make it a 100'0 fit with party and party actions, butnonetheless the assimilation to such actions cannot be doubted. Sofull is the assimilation that although mediation does not applygenerally to Part 56 application, the court still has the power to directmediation in any proceedings (rule 74.3 (1), (2.

45.Judicial review claims are intituled in the way they are because of thehistory of such claims. t was a petition to the sovereign to call up therecord of an inferior tribunal. The record would be examined and ifthe complaint was made out, the sovereign would then grant theprerogative remedy appropriate to the case. As time went one this

12


13/22

" .

)

function became "judicialised." The reality now is that it is the courtsthat hear and determine judicial review without any referral to thesovereign. Under the CPR no one speaks of prerogative remedies anymore. The language is administrative orders. There really is no reasonwhy judicial review proceedings cannot be intituled like ordinaryactions. Modern governance has embraced the idea of judicial reviewand it s now an integral part of governance and accountabilitystructures. Part 56 has recognised this reality.

46. The workers clearly fall within the definition of persons directlyaffected. Assuming Mr. Robinson is right that the workers cannot beheard at the leave stage, they would have a right to be served andparticipate at the first hearing as of right, and the full scale hearingof the application for the administrative order on the basis of personsdirectly affected.

47 It is clear that simply to use the expression "interested parties"disguises the fundamental distinction made by the rules. All this feedsback into my earlier conclusion that on the facts of this case, theunion as a directly affected party could have been invited by thecourt to participate in the leave stage.

48.Mr. Robinson rounded off his submissions by saying that the AttorneyGeneral represents the lDT and was not objecting to the grant ofleave. Added to this, said he, was the fact that the threshold forleave was very low. The implicit proposition here is that if theAttorney General is not objecting and the union cannot be heard thenleave should be granted.

49.Respectfully, I must say that whether the Attorney General choosesto oppose or remain neutral on this application cannot be taken intoaccount because Part 56 places the duty on the court to decidewhether leave should be granted. The case law sets out the test

50.Indeed so seriously have the courts, at least in England and Wales,been taking their role as the gate keepers of judicial review, thatthere has in fact been a decline in permission percentages for judicialreview applications (see Bondy Varda, and Sunkin, Maurice, ccess to

13


14/22

. .

Judicial Review, P.L. 2008 Win 647 - 667). The authors point out thatbetween 1981 and 2006 there was a massive drop in the percentage ofpersons who were permitted to go forward with judicial reviewproceedings. In 1981, 71 were granted leave compared with only22% by 2006. For those who prefer hard numbers, the authors notethat in 1996, there were a total of 39 1 but only 1257 were grantedleave. By 2006, there were 6458 applications with only 752 beinggranted.

51. The authors have sought to explore the reasons for this decline. One Jreason put forward is that the test for granting leave to seek judicialreview has undergone modification. To support their point, theauthors refer to a number of cases which I also refer to below. Theold test was stated by Lord Diplock in Inland Revenue Commissionersv National Federation of Self-Employed and Small Businesses Ltd.[1982] A.C. 617, 643 - 644:The whole purpose of requiring that leave shouldfirst be obtained to make the application forjudicial review would be defeated i the court wereto go into the matter In any depth at that stage.If on a quick perusal of the material thenavailable, the court thinks that it discloses whatmight on further consideration turn out to be an


15/22

The ordinary rule now is that the court will refuseleave to claim judicial review unless satisfied th tthere is an arguable ground for judicial reviewhaving a realistic prospect of success and notsubject to a discretionary bar such as delay or analternative remedy: see R v 1..t; JD1 Aid Board x pHughes 1992) 5 Admin I..R 623, 628 and FordhamJudicial Review Handbook 4th ed (2004), P 426.But arguability cannot be judged withoutreference to the nature and grovityof the issue tobe argued. t is a test which is flexible in itsapplication.And later in the same paragraph:t is not enough that a case is potentially arguable:an applicant cannot plead potential arguability tojustify the grant of leave to issue proceedingsupon a speculative basis which it is hoped theinterlocutory processes of the court maystrengthen : Matalulu v Director of PublicProsecutions [2003} 41..RC 712 733.

53.Having read the judgment in its entirety there is nothing there tosuggest that the principle just cited is limited to the facts of thecase. t was a statement of general application. His Lordship wasenunciating the test for granting leave for judicial review generally.The judicial review application has gone from Lord Diplock's quickperusal" to Lord Bingham's and Lord Walker's having "a realisticprospect of success." n short, the days of letting the case goforward and see what happens is no longer in vogue. The language ofLord Diplock is speCUlative. His Lordship says that if the quickperusal" discloses what "might" turn out to be an arguable case thenleave should be granted. This approach explains, at least to me, whyMr. Robinson said that the practice has been not to oppose theapplication for leave and argue everything at the hearing stage. With

15


16/22


17/22

applications fall into one or other of thesecategories, ut not always. There is also a small rreally need a it more about it category and insuch cases the appropriate course is to adjournthe application for an inter partes hearing . Thisis quite different from a substantive hearing inthat the respondent need only summarise itsanswer sufficiently to enable the judge to decidethere is or is not an arguable case.

56 I will the first to admit that this passage from the Masterof theRolls is notveryclearon the test to beappliedat the leavestage.Tosay that leaveshould be grantedif prima facie there is an arguablecase and then say in the nextbreadth that a quick perusal may beinsufficientbutan in depth look is notrequired,regrettably,doesnotprovidemuch assistancetothe leavejudge.

57.Despite the difficulty of expression what is clear is that LordDonaldson is clearly distancing himself from Lord Diplock'sformulation. As he has said, "things havemoved on since then." Anarguable case is not established simply by disclosing what may oninvestigation turn out to be an arguable case. In this regard, LordDonaldsonaswell asLord Bingham andLordWalkerare at onewhenthey all say that leave is not made out by establishing potentialarguability. Theremust be, in the words of Lord Bingham and LordWalker, arguable ground for judicial review having a realisticprospectof success,

58.Thepoint then is that leave for application for judicial review is nolongera perfunctoryexercisewhich turnsbackhopelesscasesalone.Caseswithout a realistic prospect of successare also turned away.Thejudges,regardlessofthe opinion ofthe litigants,are requiredtomake an assessmentofwhetherleaveshouldbegranted in lightof thenow stated approach.Thus the practiceidentifiedby Mr. Robinson ofnot opposingapplicationsfor leaveto review decisionof the IDTandthen if leave is granted, then the transcript of proceedings isprepared may be sufficient for the Attorney General but clearlycannot be the legal standard applied by the courts. t is also means

17


18/22

that an application cannot simply be dressed up in the correctformulation and hope to get by. An applicant cannot cast aboutexpressions such as "ultra vires , "null and void , "erroneous in law ,"wrong in law", "unreasonable" without adducing in the requiredaffidavit evidence making these conclusions arguable with a realisticprospect of success. These expressions arereally conclusions.

59.In thefinal analysis, I cannot accept any of theobjections raised byMr. Robinson totheunion being heard atthis stage.

Should leave be granted? tJ60.Inow turntoan examination ofthematerial placed beforethecourt

and ask my self, "Istherean arguable case disclosed by thematerialwhich has a realistic prospect of success?H I remind myself thatarguability does not exist in splendid isolation but in relation tothenature and gravity of thematter. Realistic prospect of success doesnot mean thattheapplicant has to establish a more than 50% chanceofsuccess.

61. I should indicate that Mr. Robinson took the pOSition that what isbeforeme is not sufficient to enable me tosay thattheapplication ishopeless or frivolous and so leave should be granted. He cited, thehighly respected work of de Smith, Woolf Jowell, Judicial Reviewof Administrative Action 5th ed(1995, para. 15-014, 15-015) which in , )turn cited caseS in support theproposition advanced by Mr. Robinson.However, in light of thenew test,thefactthatan application is notfrivolous does not mean thatit has a realistic prospect of success.

62.I will not ascribe to the current application any adjectives butassuming that it is not frivolous or hopeless is not thesame thing assaying thatthepresent case meets thetestas I understand it to be.

63.Iwish to beunderstood thatwhen examining theaffidavit filed insupport of theapplication for leave, I am not conducting a hearing ordeciding thesubstantive matter. I am simply examining thematerialplaced beforethecourt. This is what was done by theEnglish Court ofAppeal in the case of R v Secretary of tate for the HomeDepartment ex parte Swat; [1986] 1. W.L.R. 477, when it dismissed

18


19/22

an appeal against refusal to grant leave to apply for judicial review. Icannot help but note that this case was decided within four years ofthe I.R.C. case and even from those early days, it is apparent thatLord Donaldson did not embrace Lord Diplock's test. He simply did notrefer to it at all. Lord Donaldson stated the test for leave in theseterms at page 485:

I would have been minded to refuse leave to applyupon the grounds that an applicant must show more. than that it is not impossible that grounds forjudicial review exist. To say that he must show aprima facie case that such grounds do in fact existmay be putting it too high but he must at leastshow that it is a real as opposed to a theoreticalpossibIlity. n other words he must have anarguable case.

64. Also of significance is the fact that Lord Donaldson analysed theallegations of the applicant and concluded that his real complaint wasthat he should have been believed by the immigration officer. Ineffect, he was saying that the immigration officer was wrong todisbelieve him as distinct from saying that the officer had no basisfor deciding against the applicant.

65.The application is supported by the affidavit of Mrs. AndreaHardware. Mr. George, quite helpfully, produced skeleton arguments.

66.The award of the IDT begins by stating the terms of reference whichwas to determine and settle the dispute between J. Wray NephewLimited on the one hand and the Union of Clerical Administrative andSupervisory Employees on the other hand over the termination ofemployment on the grounds of redundancy of" named employees.

67.The award goes on to give the background and context of the dispute.t sets out the rival cases. t then summarises the evidence at the

hearing and thereafter gives findings.

9


20/22


21/22

' .71. The law on ouster clauses is well known. Section 12 (4) (c) is not

suggestingthat afinding basedon the absenceof evidencecannotbechallenged. t issimply seekingtopreventan appealagainstthe factsmasquerading as judicial review. If there is a clear choice betweentwo rival versionsand one is accepted, then onecannotsay, withoutmore, that the acceptance of one as opposed to the other is Sounreasonable that no reasonabletribunal could sofind. As RattrayP.said in Vlll(Jge Resorts td v The Industri(J1 isputes Tribuntll tmdUton Green S.C.C.A. No 66/97 (deliveredJune30,1998 , "Parliamenthad legislated a distinct environment including the creation of aspecializedforum,notfor the trialof actionsbutfor the settlementofdisputes"(seepage11). In thiscontext,quibblesabout who shouldbebelievedare strictlyfor the IDTand notthe courts.Whatsection12 (4)(c)does is remindjudgesofthe boundariesbetweenthe roleofthe tribunal and the role of the court. The court has no power toreinterpret facts. All the court can do in relation to facts is toindicatewhetherornotthe factsadducedsupport the finding.Even ifthe courtswould interpretthe facts differently that is notabasisfor interference.Wherethe courtscanand shouldinterveneiswherethere is no evidenceto supportthe conclusion.

72.There is no allegation in the affidavit of Mrs. Hardware that thetribunal made any finding that the evidence was not capable ofsupporting. In my view, all the affidavit says is that the companydisagrees with the tribunal. That is their right but that does nottranslate into what the Board calls on arguable ground for judicialreview having a realistic prospectofsuccess.

73.Mrs. Hardwaregoesone to saythat the orderof reinstatementwasunreasonablebecausesuchan orderwould beforcing the Compony tocontinue to incur high overheads and reduced profitability" andfurther "the Company has entered into long term contracts withoutside contractors for the services formerly provided by theEmployees (seepara.21).

74.It is well known that when one speaks of unreasonableness in thiscontext one is speaking of what is called Wednesburyunreasonableness,that is "unreasonablenessvergingon absurdity"(per

21


22/22

Regina v Industrial Disputes Tribunal

Documents

Transcript of Regina v Industrial Disputes Tribunal