Bank of Bermuda Ltd v Minister of Community Affairs & Sport

• Jurisdiction: Bermuda
• Judgment Date: 24 August 2004
• Docket Number: Civil Jurisdiction 2002 No. 236
• Date: 24 August 2004
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Simmons, J

Civil Jurisdiction 2002 No. 236

BETWEEN:

Bank of Bermuda Ltd

Applicant

and

The Minister of Community Affairs & Sport

Respondent

Mr. J. Elkinson for the Applicant

Mr. M. Douglas for the Respondent

Mr. D. Duncan for H. Darrell

The following cases were referred to in the judgment:

In re Medicaments & Related Classes of Goods (No. 2)WLR [2001] 1 WLR 700

R v GoughELR [1993] AC 646

R v Bow Street Metropolitan Stipendiary Magistrates, ex parte Pinochet Ugarte (No. 2)ELR [2000] AC 119

Attorney General v Times Newspaper LtdELR [1973] 1 QB 710

Green v Minister of the EnvironmentBDLR [1992] Bda LR 16

McCarthy v AgardELR [1933] 2 KB 417

R v Crips ex parte MuldoonUNK [1984] 2 All ER 705

Burgess v Stevedoring Services LtdWLR [2002] 1 WLR 2838

Beetham v Trinidad Cement LtdELR [1960] AC 132

Roberts and Hayward v Minister of Home Affairs & Public SafetyBDLR [2004] Bda LR 5

Human Rights Act 1981

Administration of Justice (Prerogative Writs) Rules 1978

Judicial review — Application by bank for orders of certiorari — Re-opening complaint before the human — Rights commission — Procedural unfairness

JUDGMENT of Simmons, J

In this Judicial Review matter the Applicant seeks Orders of Certiorari, firstly to quash the decision of the Human Rights Commission to refer to a Board of Inquiry the complaint filed on 30^th October 2000 by a Mr. Harold Darrell against the Applicant; and secondly to quash the Minister's subsequent appointment of the Board of Inquiry on the basis that the referral and appointment were made in breach of the provisions of the Human Rights Act 1981 (hereinafter called the ‘Act’).

BACKGROUND

The background facts giving rise to the grounds supporting the complaint herein are somewhat long and detailed; however for present purposes I set out below as briefly as possible relevant facts expressed chronologically.

It all began when the business relationship between Mr. Harold Darrell (herein after referred to as ‘H. Darrell’) and the Applicant soured. In 1997 H. Darrell complained to the Applicant that one of their employees had revealed sensitive banking information about him to a third party. The Applicant investigated the complaint and informed H Darrell that there was no foundation to the complaint.

In 1998 H. Darrell once again complained that information about his banking affairs had been disclosed to a third party by yet another employee of the Applicant. H. Darrell asserted that an investigation was carried out by the Applicant and the results thereof were favourable to him, however the Applicant was not prepared to accept or act on the results. The applicant denied that any investigation had taken place and denied that there was credibility in the basis of the complaint.

Being unsatisfied with the inaction by the Applicant H. Darrell commenced an action by filing a writ in this court in June of 2000 against the Applicant in which he alleged breach of confidentiality and consequential loss. Once the writ had been filed matters proceeded to discovery including the filing of a defence and counterclaim by the Applicant. No further steps were taken in the action up to the date of the hearing in this instant matter.

After writing several letters to individual members of the applicant bank and other unrelated persons in Bermuda and abroad, H. Darrell made an official complaint to the Human Rights Commission (herein after referred to as the ‘HRC’) on the 30^th of October 2000 complaining that the applicant had discriminated against him on the basis of his race which was contrary to the Human Rights Act 1981 (herein after referred to as ‘the Act’). When contacted by an officer of the HRC the Applicant indicated that it did not wish to respond to the complaint indicating that there were current proceedings ongoing in the civil jurisdiction of the court concerning the parties and the subject matter.

By letter of the 17^th January 2001 H. Darrell was informed that the HRC had dismissed his complaint pursuant to section 15 (8) of the Act as being without merit. The applicant received a copy of said letter in May of 2001. H. Darrell, no doubt feeling justifiably aggrieved as no investigation had been carried out nor opportunity to be heard had been afforded him pursuant to section 15 (8) of the Act, sought clarification from the Respondent of the procedure for dismissing an application.

H. Darrell received a terse response from the director of the Respondent that provided no guidance to him; he therefore sought the leave of the court in a judicial review application No 93 of 2001 to obtain an order of mandamus in respect to the HRC's dismissal of his complaint. The Applicant was not informed of the judicial review action.

Discussions took place between counsel for the parties to the judicial review action No 93 of 2001 as a result of which H. Darrell and the HRC came to an agreement that was embodied in a consent order of the 2^nd of May 2001 wherein the HRC would re-open H. Darrell's complaint. All proceedings in the matter were stayed with liberty to apply.

The HRC then wrote to the Applicants by letter of the 23^rd of May 2001 asking the Applicants whether or not and how they might be prejudiced by the complaint being heard out of time. The Applicant responded by letter of the 29^th May 2001 indicating that it maintained its view that the complaint was without merit and that it intended to apply to the court to become involved in the No. 93 2001 judicial review proceedings.

The Applicants thereafter by summons dated the 14^th June 2001 applied to the court to be joined as a party to the judicial review proceedings No 93 of 2001 between H. Darrell and the HRC on the basis that they were an affected party. The Applicant also sought a stay pending the hearing of their summons. At the hearing on the 27^th June 2001 the court made the decision that the Applicant was not a person directly affected but rather that the individual directors of the board of the Applicant bank were the parties against whom the complaint to the HRC had been made; and secondly, that the directors were the parties directly affected by the filing of the action.

The court stated that it was exercising its jurisdiction under rule 6 of the Administration of Justice (Prerogative Writs) Rules 1978 and the inherent jurisdiction of the court and then ordered that the individual directors be served with the summons and that all proceedings be stayed including the human rights proceedings. The matter was then set down for mention on the 12^th July 2001. An order was drawn and perfected.

On the 19^th September 2001 the court then determined that it had earlier been misled and exercising its inherent jurisdiction reopened the judgment of the 27^th June 2001 in the interest of justice and determined that its earlier order ought to be changed to reflect that the Applicant was the affected party and not the individual directors.

On November 6^th 2001 H. Darrell wrote to the Respondent requesting that his complaint be referred to a Board of Inquiry. Thereafter on or about the 12^th March 2002 the Chairman of the HRC requested that the Respondent refer the matter to a Board of Inquiry in light of the fact that the applicant had refused to participate in the investigation of H. Darrell's complaint.

Having been satisfied by letter of the 13^th March 2002 of this latest development, on 22^nd March H. Darrell filed a notice of withdrawal of his judicial review action No 93 of 2001 against the HRC with their consent. The Applicant's consent was not obtained; however the Applicant was informed by letter of the 13^th March 2002 that the Respondent would be appointing a Board of Inquiry. The Board of Inquiry was appointed and the Applicant was so informed on the 24^th June 2002.

It was against that background that the Applicant filed the Originating Summons herein seeking leave to commence the instant judicial review application for orders of Certiorari setting aside the Reference and appointment of the Board of Inquiry.

THE APPLICANT'S CASE

The Applicant takes issue with the fact that the HRC has re-opened H. Darrell's complaint. They say the complaint is essentially comprised of the same issues that H. Darrell seeks to have redressed in his civil action against them arising out of his allegation of breach of confidence. Mr. Elkinson for the Applicant argues that the sole motivation behind both H. Darrell's civil action and this judicial review action is to put pressure on the Applicant to pay compensation to him. Mr. Elkinson submits that bringing a complaint to the HRC during the currency of his civil litigation with the Applicant amounts to undue pressure on the Applicant and in the circumstances is a contempt of court.

The Applicant further attacks the very validity of the complaint asserting that the complaint is time barred because it contravenes section 15 (7) of the Act in that the complaint has been made more than 6 months since the contravention of the Act took place. Mr. Elkinson argues that H. Darrell was aware of this and suggested to the HRC in his letter of the 30^th October 2000 that it should word the complaint in such a way as would avoid the time bar.

Further the Applicant's case is that the complaint no longer exists because the HRC dismissed the complaint on the 17^th January 2001 and notwithstanding their agreement with H. Darrell to re-open the complaint by filing the consent order in proceedings No 93 of 2001, to which agreement they were not a party, the Act does not empower the HRC to re-open a complaint that has been dismissed. To the extent that any complaint did exist, the Applicants say that the stay of the 27^th June 2001 prevented any attempt at settling the complaint and prevents the Applicant from referring the complaint to a Board of Inquiry.

Mr Elkinson further asserts that the Respondent engaged in procedural unfairness by...