REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2015-01041

BETWEEN

IN THE MATTER OF THE JUDICIAL REVIEW ACT NO. 60 OF 2000

AND

IN THE MATTER OF AN APPLICATION WITH NOTICE BY

(1) TENISHA BROWN

(2) RENRICK GLASGOW

(3) JOVIAN PHILLIP

(4) DAVID SYLVESTER

(5) CLANCY WOLFE

(6) KERRON ROBERTS

(7) DENIQUE GREENE

(8) KEISHEL EDWARDS

(9) WILLIS NICHOLASON

(10) JAMAAL BASCOMBE

(11) RENEE MOREN-BESSON

(12) KIZZY BAPTISTE

(13) KAY-ANN FRANCIS

(14) NATASHA ST. CYR

(15) FARAASA RYAN

(16) LEON GREAVES

(17) WENDELL NANAN

(18) RONELL ALLEYNE

(19) GARTH SINNETTE

(20) PHILLIP DE VERTEUIL

(21) AMELIA SALVADOR

(22) ELON JOHN

(23) JOEL ASSON

(24) ISAAC JOHN

(25) HAYSHER DAVIDSON

AUXILIARY FIRE OFFICERS IN TRINIDAD AND TOABGO

AUXILIARY FIRE SERVICE FOR LEAVE TO APPLY FOR JUDICIAL

REVIEW

AND

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IN THE MATTER OF THE DECISION OF THE CHIEF FIRE OFFICER TO

FAIL TO APPOINT THE INTENDED CLAIMANTS TO THE OFFICE OF

FIREFIGHTER IN TRINIDAD AND TOBAGO FIRE SERVICE

BETWEEN

(1) TENISHA BROWNS

(2) RENRICK GLASGOW

(3) JOVIAN PHILLIP

(4) DAVID SYLVESTER

(5) CLANCY WOLFE

(6) KERRON ROBERTS

(7) DENIQUE GREENE

(8) KEISHEL EDWARDS

(9) WILLIS NICHOLASON

(10) JAMAAL BASCOMBE

(11) RENEE MOREN-BESSON

(12) KIZZY BAPTISTE

(13) KAY-ANN FRANCIS

(14) NATASHA ST. CYR

(15) FARAASA RYAN

(16) LEON GREAVES

(17) WENDELL NANAN

(18) RONELL ALLEYNE

(19) GARTH SINNETTE

(20) PHILLIP DE VERTEUIL

(21) AMELIA SALVADOR

(22) ELON JOHN

(23) JOEL ASSON

(24) ISAAC JOHN

Claimants

AND

CHIEF FIRE OFFICER

Defendant

BEFORE THE HONOURABLE MADAM JUSTICE DEAN-ARMORER

APPEARANCES

Mr. Rodney Lamsee, Mr. Nigel Trancoso, Ms. Bria Hosein, Attorneys-at-law for the Claimants.

Mr. Russell Martineau S.C., Ms. Kamala Mohammed- Carter, Ms. Deowatee Dilraj- Batoosingh,

Attorneys-at-law for the Defendant.

JUDGMENT

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JUDGMENT

Introduction

(1) In March, 2015, twenty-five (25) Auxiliary Firefighters moved the Court for leave to apply

for judicial review. It was their contention that the Chief Fire Officer had promised to

confirm their appointments as Fire Officers, thus leading them to conceive a legitimate

expectation that they would be confirmed as Firefighters by December, 2014.

(2) In the course of this judgment, the Court has considered the doctrine of legitimate

expectation, and how it arises in the context of a promise by a public official. The Court

considered, as well the evidential burden which is carried by an Applicant for judicial review,

where the Claimant contends that he was the beneficiary of a promise by a public official.

Procedural History

(3) On the 31st March, 2015, the Claimants filed a Notice of Application pursuant to Part 56.3

of the Civil Proceedings Rules, 1998 (“the CPR”), seeking leave to apply for judicial

review. They sought the following items of relief:

“i. an injunction pursuant to Section 8(1)(b) and 8(2) of the Judicial Review Act

compelling the Defendant to retroactively appoint [sic] and/or do what is legally

necessary to cause the Claimants to be considered for appointment to the office

of Firefighter in the Trinidad and Tobago Fire Service, as prescribed in law;

ii. an interim injunction pursuant to Section 8(1)(b) and 8(2) of the Judicial Review

Act that the Defendant be hereby ordered to maintain the status quo by not

approving any course pursuant to section 3 of the Fire Service (Terms and

Conditions of Employment) Regulations Chapter 35:50, any person or persons

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to the office of Firefighter in the Trinidad and Tobago Fire Service until the

hearing and determination of the Application herein for judicial review;

iii. a declaration that the Defendant’s breach of the contractual terms of

engagement herein above referred to in Paragraph 1 above frustrated the

legitimate expectation of the Claimants was without precedent baseless and ultra

vires being in direct contravention with the Fire Service (Terms and Conditions

of Employment) Regulations Chapter 35:50 and therefore irrational and/or

illegal and/or in breach of natural justice;

iv. a declaration the Claimants had a legitimate expectation to be appointed to the

offices of Firefighter, having passed out; attended their Graduation Ceremonies;

individually awarded Certificates of Competence for successfully completing

induction training during the period 16th June 2014 to 30th September 2014 and

promised to be assigned service numbers in December, 2014;

v. a declaration that the Defendant was guilty of inordinate and unreasonable

delay and in contravention of Section 15(1) of the Judicial Review Act Chapter

7:08 in making a decision not to appoint and/or do what is legally necessary to

cause the Claimants to be considered to be appointed to the office of Firefighter

in the Trinidad and Tobago Fire Serviced, as prescribed in law, that is to say

that the Defendant acted ultra vires and in direct contravention of the Fire

Service (Terms and Conditions of Employment) Regulations Chapter 35:50 and

the Constitution of Trinidad and Tobago, Public Service Commission

Regulations Chapter 1:01;

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iv. an order of mandamus compelling the Defendant to do that which is necessary

and within his power to have the Claimants appointed to the office of Firefighter

in the Trinidad and Tobago Fire Service with retrospective effect in accordance

with the declarations above;

vii. a declaration that the decision of the Defendant that the Claimants participate

in a Practical Test is oppressive, unreasonable, and in contravention to the rules

of procedural fairness and the principles of rationality, in that the verbal

contract of engagement that is, the period of June 2014 and September 2014,

unreasonable delay from 30th September 2014 to date vitiated and waived the

suggested requirement of such practical test;

viii. a declaration that the Claimants (and all similarly circumstanced Auxiliary Fire

Officers) are entitled to be appointed to the office of Firefighter in the Trinidad

and Tobago Fire Service retroactively;

ix. an order of certiorari to bring the decision that the Claimant should write a

practical examination having been subjected to inordinate and unreasonable

delay for six (6) months after completing induction training;

x. damages;

xi. costs; and

xii. such further orders, directions or writs that the Honourable Court considers just

and as the circumstances warrant.”

(4) The Claimants identified one ground on which their application was based, that is to say:

“The intended defendant frustrated the legitimate expectation of the intended

claimants when he reneged on his promise made by verbal contract of engagement

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during the months of June, 2014, to September, 2014 to furnish the intended claimants

with service numbers in the month of December, 2014, was without precedent, baseless

and ultra vires being in direct contravention with the Fire Service (Terms and

Conditions of Employment) Regulations Ch. 35:50 and therefore irrational and/or

illegal and/or in breach of natural justice…”1

(5) On the 23rd April, 2015, the Court granted leave to apply for judicial review but directed that

the Application for the injunction be served on the Intended Defendant and that Written

Submissions be filed in support of and in opposition to the Application for the injunction.

(6) On the 21st July, 2015, this Court refused the injunction and gave directions for the filing of

Affidavits and Written Submissions in respect of the substantive Application for judicial

review. All Written Submissions were eventually filed by the 11th February, 2016, when

the Court reserved judgment.

(7) In November, 2016, the Court requested further Submissions on the issue of substantive

legitimate expectation and in particular in respect of the authority of United Policyholders

and Others v. Attorney General of Trinidad and Tobago2 a judgment delivered by the Privy

Council in June, 2016. In compliance with the Court’s direction, further Submissions were

filed on behalf of the Defendant and on behalf of the Claimants on the 29th November, 2016,

and the 14th December, 2016 respectively.

Evidence

(8) There was no cross-examination in this Claim and the facts were gleaned from the following

Affidavits:

1 See paragraph D of the Notice of Application filed under Part 56.3 of the Civil Proceedings Rules, 1998 2 United Policy Holders Group and Others v. AG of Trinidad and Tobago [2016] UKPC 17

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the joint affidavit of the Claimants filed on the 31st March, 2015; and

on behalf of the Defendant:

the affidavit of Earlin Gopaul filed on the 8th June, 2015,

the affidavit of Roosevelt Bruce filed on the 8th June, 2015,

the affidavit of Nayar Rampersad on the 7th October, 2015.

Facts

(9) The Claimants are all Auxiliary Firefighters. In March, 2014, they responded to an invitation

contained in Fire Station Notice No. 5 of 2014, for applications to be considered for

enlistment for induction training in the Fire Service of Trinidad and Tobago. The Claimants

were required to undergo an aptitude test and a medical examination. They were also

interviewed, following which they all received letters dated the 2nd June, 2014 requiring them

to present themselves for induction training.

(10) The Claimants also received a letter which was dated the 4th June, 2014, and which was

signed by the acting Chief Fire Officer for the Chief Fire Officer. By this letter the Chief

Fire Officer provided information, as to the steps, which the Claimants would be required to

take upon completion of their induction training. The Chief Fire Officer stated as follows:

“If you successfully complete the Induction Training course approved by the Chief

Fire Officer you will be required to successfully complete a practical test. You will

then be eligible as a candidate for appointment to the office of firefighter.”3

(11) The Claimants began their training on the 16th June, 2014. Their names later appeared on a

list entitled Training of Auxiliary Firefighters Batch No. 1 of 2014 and published in Fire

3 See Exhibit “F” of the Joint affidavit of the claimants filed on the 31st March, 2015

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Service Order No. 3 of 2014. On the 30th September, 2014, the Claimants completed their

training and received certificates of competence.

(12) The Claimants allege that the Chief Fire Officer promised the trainees that in December,

2014, they would be confirmed as Firefighters. However, the Defendant has denied that any

promise had been made by the Chief Fire Officer and has relied on the Affidavit of Nayar

Rampersad, who had been the Chief Fire Officer, at the time in question. At paragraph 15

of his Affidavit, Chief Fire Officer Rampersad denied that he made any promise, as alleged.

Mr. Rampersad’s evidence was corroborated by Earlin Gopaul, Acting Divisional Fire

Officer, who denied the allegations, which were made and at paragraph 18 of the Joint

Affidavit and stated squarely:

“The Chief Fire Officer never made any promise to the claimants that in December,

2014, they would be confirmed as Firefighters of Trinidad and Tobago” 4

(13) Ms. Gopaul, deposed further that the Chief Fire Officer advised the trainees that there were

two (2) processes which would lead to their confirmation as Firefighters. They were the

qualification process and the appointment process.5 Ms. Gopaul proceeded to explain that,

at the end of their training, trainees still have to go through a selection process before they

are appointed as Firefighters.6

(14) Mr. Roosevelt Bruce, Acting Chief Fire Officer, also swore an Affidavit in opposition to this

Claim.7 Mr. Bruce disclaimed any knowledge of the alleged promise, but provided this

evidence as to the two-tiered process for appointment of Fire Officers:

4 See paragraph 6 of the affidavit sworn by Earlin Gopaul and filed herein on the 8th June, 2015. 5 Ibid. 6 See the affidavit sworn by Earlin Gopaul and filed herein on the 8th June, 2015. 7 See the affidavit sworn by Roosevelt Bruce and filed herein on the 8th June, 2015.

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“The qualifying process to be eligible for appointment as a Firefighter includes

induction training designed and executed by the Fire Service School for a period of 3-

4 months…”8

(15) Mr. Bruce had this to say of the appointment process:

“The appointment process entails the completion of a practical exam and an interview

set by the Public Service Commission in collaboration with the Chief Fire Officer.

After this process a merit list would be established by the Public Service

Commission…”9

(16) The single issue of fact, which fell to be resolved in this Claim, was whether the Chief Fire

Officer promised that the Claimants would be appointed as Firefighters following the

completion of their induction training. Ancillary to this issue, was whether any promise was

made at all, and in particular a promise on the part of the Chief Fire Officer that he would

do all in his power to ensure that the Claimants were confirmed.

(17) In considering this issue, the Court was confronted with allegations which were diametrically

opposed. On the one hand, the Claimants alleged that the Chief Fire Officer made oral

promises. On the other hand, deponents for the Defendant have stoutly denied this

allegation.

(18) In resolving the issue of fact, I was mindful of the principle that he who alleges must prove.

Accordingly, the Claimants, who made the allegation of promises carried the burden to prove

that it had been made.

(19) In the light of the opposing evidence which had been filed by the Defendant, the Court could

not resolve this issue of fact without cross-examination and it fell to the Claimants as the

8 See the affidavit sworn by Roosevelt Bruce and filed herein on the 8th June, 2015. 9 Ibid at paragraph 15.

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parties who carried the burden of proof, to call the Defendant’s witnesses for cross-

examination. Where there is a dispute of fact and the party who carries the burden of proof

fails to cross-examine the opposing witnesses, a Court is entitled to proceed on the

respondent’s unchallenged evidence.10 This principle was stated by Lord Hope of

Craighead. In the course of his judgment in Johnatty v AG, Lord Hope of Craighead noted

that it was clear that the claimant’s assertion that his salary had been stopped was disputed.

Lord Hope had this to say:

“It would have been open to him to seek leave to cross-examine the respondent’s

witnesses on this point. His assertion that the letter of 22 June 2004 was a fabrication

was one that certainly ought, in fairness, to have been put to Mr Joseph. But the

appellant did not take this course. So the judge was entitled to proceed on the basis

of the respondent’s unchallenged affidavit evidence.” 11

(20) In keeping with this authority, it was my view that the Court was entitled to proceed on the

evidence, which had been filed for the Defendant. I therefore find as a matter of fact that

the Chief Fire Officer made no promise to the Claimants on subject of their confirmation as

Firefighters or otherwise.

(21) The Claimants by their Joint Affidavit have drawn the Court’s attention to the lapse of six

(6) months between the date of the completion of their training and the institution of their

Claim for judicial review. They contend that the Chief Fire Officer was guilty an

unreasonable delay, for the purpose of Section 15(1) of the Judicial Review Act12.

10 Malcolm Johnatty v. The AG [2008] UKPC 55 11 Malcolm Johnatty v. The AG [2008] UKPC 55 at paragraph 17 12 Judicial Review Act, Ch. 7:01

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(22) Since the end of their training, the Chief Fire Officer has selected another batch of Auxiliary

Firefighters for Induction Training. The Chief Fire Officer stated that training did not begin

since he was awaiting the decision of this Court in CV 2014-1576 Fire Service Association

v. The Chief Fire Officer. The decision in this matter was delivered on the 27th November,

2015, and is at present, before the Court of Appeal.

Issues

(23) In the foregoing factual context, these issues arise for the Court’s consideration:

(i) whether the Claimants conceived any legitimate expectation, in respect of which the

Court would grant judicial review.

(ii) whether the Claimants are entitled to canvass new issues in legal submissions where

such issues had not been raised in their Notice of Application13 or their Fixed Date

Claim Form.

(iii) whether the Chief Fire Officer was guilty of unreasonable delay in respect of his

decision not to appoint or to do what is legally necessary to cause the Claimants to

be considered for appointment.

(iv) whether the defendant’s decision requiring the Claimants to submit to a practical test

was irrational, oppressive and procedurally unfair.

Reasoning and Decision

(24) Each issue will be considered separately below. It is convenient at this stage to observe that

the Claimants made no submissions on the fourth issue supra. This must be treated as having

13 The Notice of Application filed on the 31st March, 2015 under Part 56:3 of the Civil Proceedings Rules, 1998

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been abandoned. In any event, the requirement of a practical test has been prescribed by the

Regulations14, and is not susceptible to being reviewed as a decision of the Chief Fire Officer.

Legitimate expectation

(25) The authorities speak with one voice in respect of the doctrine of legitimate expectation.

Where the Claimant relies on an allegation of an official promise, such promise must be clear

and unambiguous. A host of authorities support this proposition.15 The principle is

however, very clearly stated in the authority produced by the Claimants themselves, that is

to say: R v. Devon County Council [1996] 1 All ER 73, where Simon Brown LJ had this

say:

“These various authorities show that the claimant’s right will only be found

established when there is a clear and unambiguous representation upon which it was

reasonable for them to rely…”(my emphasis)16.

(26) The presence of a clear and unambiguous representation is a requirement of both substantive

and procedural legitimate expectation. The Claimants, in the course of their Written

Submissions contended that they held an expectation, which was capable of giving rise to a

substantive benefit. It was for this reason that the Court directed the parties to provide

submissions on the authority of UPH v. The AG17, as the last and most authoritative word

on the doctrine of substantive legitimate expectation.

(27) The case of UPH v The AG18 itself underscores the requirement of a clear and unambiguous

representation. Accordingly, their Lordships considered the law on legitimate expectation

14 Regulations 150(2), Public Service Commission Regulations, Ch. 1:01 15 See for example R v. Jockey Club exp. RAM Resources Ltd. [1993] 2All ER 225 at page 236 16 See R v. Devon County Council [1996] 1 All ER 73 at page 87 17 United Policyholders Group and Others v. AG of Trinidad and Tobago [2016] UKPC 17 18 Ibid

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at paragraphs 36-40 of the majority judgment of Lord Neuberger. At paragraph 37, Lord

Neuberger had this to say:

“37. In the broadest of terms, the principle of legitimate expectation is based on

the proposition that, where a public body states that it will do (or not do) something,

a person who has reasonably relied on the statement should, in the absence of good

reasons, be entitled to rely on the statement and enforce it through the courts. Some

points are plain. First, in order to found a claim based on the principle, it is clear

that the statement in question must be “clear, unambiguous and devoid of relevant

qualification”, according to Bingham LJ in R v. Inland Revenue Comrs, Ex p MFK

Underwriting Agents Lrd. [1990] 1 WLR 1545, 1569, cited with approval by Lord

Hoffman in R (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs

(No.2) [2009] AC 453, para 60.” (emphasis mine)

(28) It is, in my view, inescapable that the Claimants, in their quest to establish the conception of

a legitimate expectation, carry a burden to prove that the Chief Fire Officer made a promise

which was clear and unambiguous and devoid of relevant qualification.

(29) As stated earlier, the Claimants have fallen short of proving such a promise. It was also my

view, that their failure to prove the promise, was not only the consequence of a failure to

cross-examine. It seems to me that the Claimants, in seeking to prove the promise, ought to

provide particulars of time, place and circumstances. They have fallen short of providing

such particulars and have been content to rest on a bald allegation that, upon occasion, the

Chief Fire Officer made promises that they would be confirmed as Firefighters. However,

the ground of legitimate expectation ought also to fail for other reasons, which are set out

below.

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(30) Firstly, the uncontroverted evidence in this Claim supported the assertion of the Defendants,

that throughout the induction training, the Chief Fire Officer advised the Claimants that there

was a two-tier process for appointments to the Fire Service: one of qualification and the

second of appointment. In the face of this clear direction, it was in my view impossible for

the Claimants to conceive a legitimate expectation that they would be confirmed as

Firefighters upon completion of their induction training.

(31) Secondly, in their Written Submissions19, attorneys-at-law for the Claimants conceded that

the Chief Fire Officer had no power to promise that the Claimants would be appointed as

Firefighters20. This is clear from Section 121(1) and (7) of the Constitution, which invest

the power of appointment in the Public Service Commission. The Claim then underwent a

mutation and learned attorneys-at-law contended that the Chief Fire Officer had not

promised to secure appointments for the Claimants, but “to do all in his power under the Act

and Regulations to have the claimants appointed…”21

(32) It is my view that the mutated argument also fell short of the standard of the clear and

unambiguous representation for at least three reasons, which are set out below.

(33) Firstly, there is no evidence of any such promise in the Joint Affidavit for the Claimants.

Accordingly, considering only the evidence of the Claimants, there was not even an

allegation that the Chief Fire Officer promised to “do all in his power” to secure the

appointment of the Claimants.

(34) Assuming however, that such evidence was forthcoming and even that the Claimants had

proved that the Chief Fire Officer made the mutated promise, it is my view, that they still

19 Written submissions filed on behalf of the claimants on the 23rd November, 2015. 20 Ibid at page 2 21 Ibid at page 3

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would fall short of a legitimate expectation. A promise “to do all in the official’s power…”

is, in my view, too vague, open and uncertain to be described as clear and unambiguous.

Such a promise leaves open the question of the ambit of the official’s power and whether in

fact, he expended himself completely, so as to satisfy the Court that he had done all in his

power.

(35) Finally of course, the Claimants are not permitted to canvass new arguments that were not

reflected in their grounds. This was the contention of learned Senior Counsel for the

Defendant. Learned Senior Counsel relied on the lofty authorities of Malcolm Johnatty v.

AG22 and Police Service Commission v. Abzal Mohammed23. The former was a decision

of their Lordships and the latter was a decision of Justice Rajnauth-Lee, JA (as she then was).

(36) Malcolm Johnatty v. AG24 was an application for judicial review, the details of which are

not relevant to this claim. However, one of the issues which their Lordships considered was

whether the Court of Appeal should have permitted the Claimant to alter his grounds

notwithstanding the fact that he had not asked for them to be amended. Lord Hope of

Craighead, in the course of the majority decision, alluded to Section 5(4) of the Judicial

Review Act25, which requires the applicant to seek the permission of the Court if he wishes

to amend his application. Lord Hope of Craighead stated further that whether or not

permission is granted is in the discretion of the Court. The learned law Lord then had this to

say:

22 Malcolm Johnatty v. The AG [2008] UKPC 55 23 Police Service Commission v. Abzal Mohammed Civil Appeal 203 of 2011, A judgment of Rajnauth-Lee, JA (as she then was) 24 Malcolm Johnatty v. The AG [2008] UKPC 55 25 Judicial Review Act, Ch. 7:01

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“But the appellant did not make use of this procedure. The mere raising of an issue is

not the same thing as applying for leave to amend. In these circumstances there are

no grounds for interfering with the Court of Appeal’s refusal to allow him to present

alternative argument.26

(37) In like vein, in Police Service Commissioner v. Abzal Mohammed27, the Court of Appeal

of Trinidad and Tobago considered the importance of setting out the grounds in a application

for judicial review. Justice of Appeal Rajnauth- Lee ( as she then was) set out these

provisions of section 5(4) of the Judicial Review Act28 as cited by by Lord Hope in Malcolm

Johnatty v. AG29:

“An applicant is not limited to the grounds set out in the application for judicial review

but if the applicant wishes to rely on any other ground not so set out the Court may on

such terms as is thinks fit, direct the application to be amended…”30

(38) In opposition to such powerful statements of principle, the Claimants have failed to produce

any contradictory authority. Accordingly, I accept, as a matter of principle, that the

Claimants do not have the facility of relying on any ground that was not identified in their

original application, unless they have received the Court’s permission to amend.

The Ground of Unreasonable Delay

(39) If I am correct in accepting this latter contention of learned Senior Counsel for the Defendant,

it seems that the Claimants’ argument on unreasonable delay must likewise fail. The

26 See Malcolm Johnatty v. AG [2008] UKPC 55 27 See Police Service Commissioner v. Abzal Mohammed Civ. App. 203 of 2011 28 Judicial Review Act, Ch. 7:01 29 See Malcolm Johnatty v. AG [2008] UKPC 55 30 See Section 5(4) of the Judicial Review Act, cited by Justice Rajnauth-Lee, JA at paragraph 34 of Civ. App. 203/11 Police Service Commission v. Mohammed

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grounds, identified both in the Fixed Date Claim Form31 and in the Notice filed pursuant to

Part 56.3 of the CPR32, are restricted to the ground of legitimate expectation. The Claimant

raises the issue of unreasonable delay in the menu of declarations which they seek. It was

my view, that the pleas of unreasonable delay should be made in the grounds. In so far as

the Claimants have failed to do this, and have failed to seek an amendment to their grounds,

the plea of unreasonable delay does not arise for the Court’s determination in this Claim.

(40) However, in the event that I am wrong in this view, I proceeded to consider whether the

Chief Fire Officer was guilty of unreasonable delay in his failure either to appoint the

Claimants or to do what was legally necessary to cause them to be appointed.

(41) Section 15(1) of the Judicial Review Act33 provides a remedy where a person, who has a

duty to make a decision fails to do so. In those circumstances, Section 15(1) provides:

“…a person who is adversely affected by such failure may file an application for

judicial review in respect of that failure on the ground that there has been

unreasonable delay in making that decision…”

(42) Having regard to the provisions of Section 15(1) of the Judicial Review Act34, it falls to the

Claimants first to prove that the Chief Fire Officer was under a duty to make a decision.

(43) The Claimants have however conceded that the Chief Fire Officer had no power to appoint

persons to the office of Firefighter35. The Claimants were correct in their concession. It is

trite and well-established that the power to make appointments to the Fire Service resides in

31 See the Fixed Date Claim Form filed on the 31st March, 2015. 32 See the Notice filed on the 31st March, 2015 pursuant to Part 56:3 of the CPR 33 Judicial Review Act, Ch. 7:01 34 Judicial Review Act, Ch. 7:01 35 See the Written Submissions which were filed on behalf of the Claimants on the 23rd November, 2015 at page 2.

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the Public Service Commission. This is the conjoint effect of Section 121(1) and (7) of the

Constitution36.

(44) In the process of appointments to the officer of Firefighter, certain duties are carried by the

Chief Fire Officer may be found in the Public Service Commission Regulations37 and the

Fire Service Act38. These provisions for appointments to the Fire Service may be found at

Part II of the Public Service Commission Regulations39. Under this Part, the Chief Fire

Officer is required to advise the Director of Personnel Administration of vacancies which

arise in the Fire Service. The obligation then falls to the Director to advertise the vacancies,

following which the Regulations are re-focussed on the Chief Fire Officer, who is required

to examine applications and ensure that applicants are qualified according to the

requirements of the Fire Service (Terms and Conditions) Regulations40.

(45) Thereafter, it falls to the Public Service Commission to notify candidates of the place, date

and time at which they are to present themselves to the Commission41. The candidates are

selected for appointment on merit on the basis of a practical test, and an interview42.

(46) Accordingly, the duties which fall to be performed by the Chief Fire Officer under the Public

Service Commission Regulations are threefold:

Advice to the Director of Public Administration that a vacancy exists.

Examination of applications to ensure that applicants are qualified for appointment.

Being available to be consulted by the Commission in devising a practical test.

36 Constitution, Ch. 1:01 37 Public Service Commission Regulations, The Constitution Ch. 1:01 38 The Fire Service Act, Ch. 35:50 39 See Regulations 149(1), Public Service Commission Regulations 40 Fire Service (Terms and Conditions of Employment) Regulations, 1998, Ch. 35:50 41 See Regulation 150(1) Public Service Commission Regulations, Ch. 1:01 42 See Regulations 150(2) Public Service Commission Regulations

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It is not being alleged, in this Claim, that there had been delay in the performance of any of

the above duties on the part of the Chief Fire Officer.

(47) I examined duties which arose under the Fire Service Act43 and the Fire Service (Terms

and Conditions) Regulations44. Part I of the Regulations provide for the recruitment of

Firefighters. This Part identifies the various ways in which a person may become eligible to

be appointed to the office of Firefighter. An examination of this Part suggests that no duties

are placed on the Chief Fire Officer in respect of individual appointments.

(48) Accordingly, it is my view that there was no duty imposed on the Chief Fire Officer, by

either Regulations, in respect of the Claimants in the instant Claim and that Sections 15(1)

of the Judicial Review Act45 has no relevance to the instant Claim. In the event that I am

wrong in this conclusion, I have considered, whether, the Chief Fire Officer could be faulted

for unreasonable delay.

(49) The test of reasonableness, in the context of Section 15(1) of the Judicial Review Act46, is

the test of Wednesbury unreasonableness.47 The Court is required to consider whether the

delay was so unreasonable that no reasonable authority would have committed it48. The

Chief Fire Officer has not denied that he took no further action following the completion of

induction training, but has testified that he took no further action in respect of the Claimants,

since he was awaiting the outcome of a related High Court action49. In my view the delay

43 Fire Service Act, Ch. 35:50 44 Fire Service (Terms and Conditions) Regulations, Ch. 35:50 45 Judicial Review Act, Ch. 7:01 46 Judicial Review Act, Ch. 7:01 47 Associated Provincial Picture Houses Ltd. V. Wednesbury Corporation [1948] 1 KB 223 at 23, per Lord Greene: “…It is true to say that if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere…” 48 See Michael Fordham’s Judicial Review Handbook 4th Edition at paragraph 57.3.8, page 927 49 Cv 2014-1576 Fire Services v. The Chief Fire Officer

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of the Chief Fire Officer could not be described as one which no reasonable authority would

take.

(50) Accordingly, it is my view that the ground of unreasonable delay must likewise fail. It is

therefore my view and I hold that the Claim ought to be and is hereby dismissed.

Dated this 2nd day of February, 2017.

M. Dean-Armorer

Judge

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