Court of Appeal
Husbands, J.A., Smith, J.A., Moe, J.A
Civil Appeal No. 6 of 1989
The Attorney General
and
C.O. Williams Construction Limited
Mr. M. King, Q.C., in association with Mr. C. Williams, Q.C., and Mrs. M. Crane-Scott for appellant.
Mr. M.B. St. John, Q.C., in association with Mr. D.A. Simmons, Q.C., and Messrs. R.G. Mandeville and Co., for respondent.
Judicial review - Administrative Justice Act, 1980-63 — Application for declaration by Min. of Transport and Works and/or Cabinet jointly and/or severally in recommending award of and/or awarding contract for rehabilitation of Highway 2A was invalid or ultra vires and/or void or contrary to law and damages — Claim by respondent that it had lost the benefit of the contract and profit therein as a result of the actions complained of in which the Minister and Cabinet were actuated by bad faith or improper purposes or took into account irrelevant considerations — Whether the definition of “administration act or omission” in the Administrative Justice Act, 1980 extends to and encompasses decisions of Cabinet — Cabinet not mentioned as one of the bodies to which the Administrative Justice Act applies and consequently Cabinet decisions are no reviewable by the courts.
1
C.O. Williams Construction Limited applied ex parte to the High Court for leave to seek certain orders in respect of the award or the recommendation for the award of contract by the Government of Barbados for the rehabilitation of Highway 2A.
2
Order 53, rule 1 of the Rules of the Supreme Court prescribes that such leave application must be supported by:–
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(1) a Statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and
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(2) affidavits, to be made before the application is made, verifying the facts relied on;
3
and provides further that the court or judge may, in granting leave, impose such terms as to costs and as to giving security as it or he thinks fit.
4
Pursuant to this order (53) –
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(1) On the 26th July, 1988 affidavits were filed by C.O. Williams, Chairman of the applicant company and by Peter McDonald Scott; and
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(2) On the 27 th July, 1988 an Amended Statement was filed.
5
The Amended Statement declared that the applicant company C.O. Williams Construction Limited (the applicant) is a company registered under the Companies Act Cap. 308 with a registered office at Collymore Rock, St. Michael. The Statement continued –
“(b) The first respondent (Donald George Blackman) is sued in his capacity as a Minister of the Crown to wit, Minister of Transport and Works at the relevant time in connection with an administrative act or decision regarding the award or the recommendation of the award of a public contract for the construction and/or rehabilitation of Highway 2A, a public highway in Barbados.
(3) The second respondent (The Attorney General) is sued by virtue of the provisions of the Crown Proceedings Act Cap. 197 and pursuant to Order 53 of the Rules of the Supreme Court and to the provisions of the Administrative Justice Act 1980-63 of Barbados. The Departments affected by these proceedings are the Ministry of Transport and Works and the Cabinet. The said second respondent is sued in relation to the award of the said contract referred to in paragraph 1(b) hereof in that the first respondent and/or Cabinet of Barbados awarded or recommended the award of the said contract.
(4) The First and Second Respondents are sued jointly and/or severally.
2. The relief sought is –
(1) A Declaration that, in the events which have happened, a decision or administrative act by Donald G. Blackman, Minister of Transport and Works and/or the Cabinet of Barbados jointly and/or severally in recommending the award of and/or awarding a certain contract for the rehabilitation of Highway 2A in this Island was invalid or ultra vires and/or void or contrary to law.
(2) An award or order of damages in money in such amount as this Honourable Court may deem just and reasonable.
3. The GROUNDS upon which the said Relief is sought are:–
(1) That the said decision or administrative act was and is contrary to law;
(2) That the said decision or administrative act was in breach of the principles of natural justice or was otherwise unfair;
(3) That the said decision or administrative act was and is unreasonable or irregular or was an altogether improper exercise of discretion;
(4) That the said decision or administrative act was an abuse of power.
(5) That in making the said decision, recommendation or administrative act, the said Donald G. Blackman and/or the Cabinet of Barbados, jointly or severally, were actuated by bad faith or improper purposes or took into account irrelevant considerations.”
6
Further, the Statement claimed that by reason of the said matters, C.O. Williams Construction Limited had lost the benefit of the contract and the profit thereon, particularised as $900,000, which it claimed as special damages with interest.
7
On the said date on which the Amended Statement was filed, 27th July 1988, having heard counsel for the applicant ex parte, the learned Chief Justice granted the leave sought and made the following order –
“IT IS ORDERED that leave be granted to the applicant to apply to the High Court for the following orders and/or relief namely:
(1) A Declaration that, in the events which have happened, a decision or administrative act by Donald G. Blackman, Minister of Transport and Works (the first respondent) and/or the Cabinet of Barbados (sued herein in the name of the Attorney-General, the second respondent) jointly and/or severally in recommending the award of and/or awarding a certain contract for the rehabilitation of Highway 2A in this island was invalid or ultra wires and/or void or contrary to law.
(2) An award or order of damages in money in such amount as this Honourable Court may deem just and reasonable.
(3) And it is FURTHER ORDERED that the applicant and the respondents be at liberty to file such affidavits or additional affidavits as they may be advised.
(4) And it is FURTHER ORDERED that the costs of this application be costs in the cause.”
8
Pursuant to the leave, the applicant on the following day, the 28th July, 1988, filed an Originating Notice of Motion to move the High Court on the 30 th September, 1988 for a Declaration and order for damages in the terms specified in the Amended Statement. Further the Notice of Motion stated:–
“The applicant will rely on the GROUNDS set forth in the copy of the Amended Statement filed pursuant to Order 53 Rule 1(2) of the Rules of the Supreme Court, 1982, and served herewith and which was used on the application for leave to issue this Notice of Motion:
AND TAKE NOTICE that an application will be made for an Order for costs of and occasioned by, this Notice of Motion to be paid by the respondents:
AND FURTHER TAKE NOTICE that upon the hearing of this Motion, the applicant will use the affidavits of Charles Othneil Williams and Peter McDonald Scott deposed to on the 26th July, 1988 and the exhibits therein exhibited and such other Affidavits as may be filed herein pursuant to the Order made on the 27th day of July 1988.”
9
The Notice of Motion was not heard on the 30th September, 1988.
10
On the 11th October, 1988, the applicant took out a Summons for discovery and inspection under section 7 of the Administrative Justice Act, 1980.
11
On the 14th October, 1988 the respondents Blackman and the Attorney General took out a Summons to set aside the ex parte order and other relief (hereafter referred to as the Summons to set aside) granted by the learned Chief Justice on the 27th July, 1988. I shall return to the terms of this Summons later.
12
On the 10th November, 1988, the applicant took out a Summons for an order for interrogatories in connection with its Notice of Motion and
13
On the 18th November, 1988 C.O. Williams, Chairman of the applicant Company, filed an affidavit in support of the said Notice of Motion. The Notice of Motion has not yet been heard and is still pending.
14
On the 24th November, 1988, counsel for the respondents Blackman and the Attorney General, filed an affidavit in support of the respondents' Summons to set 14th October, 1988.
15
On the 25th November, 1988, the respondents' said set aside was heard. By this Summons the respondents sought the following relief
1
- An order, under the inherent jurisdiction of the court and/or under Order 32, Rule 6, setting aside the “ex parte” order made herein on the 26th day of July 1987, whereby the applicant was given leave to file the originating Notice of Motion now pending herein, on all or any of the following grounds: (1) The relief sought in the Amended Statement filed pursuant to Order 53 Rule 1(2) was and is not available under the said Order 53; (2) The affidavits of Charles Othneil Williams and Peter McDonald Scott filed herein on the 26th day of July, 1988 both contained matter which offended and offends against Order 41 Rule 5 and/or matter which contravened and contravenes section 4 and/or section 15 of the Parliament (Privileges Immunities and Powers) Act Cap. 9 and which ought not to have been admitted in evidence and/or should have been struck out; (3) Without the said offending matter referred to at (b) above, there was not sufficient material upon which the judge could or ought properly to have exercised his discretion in favour of the Applicant to make the said order. 2. An order striking out the following portions of the said affidavits of Charles Othneil Williams and Peter McDonald Scott, on the grounds set out in paragraph 1 (b) above: (The Particulars are given). 3. An order, consequential upon the orders sought at paragraphs 1 and 2 above or either of them, that this action be dismissed, either generally or against the first...
