Bermuda Cablevision Ltd v David Greene and Others

• Jurisdiction: Bermuda
• Judgment Date: 21 May 2004
• Date: 21 May 2004
• Docket Number: Civil Jurisdiction 2004 No. 150
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Kawaley J

Civil Jurisdiction 2004 No. 150

BETWEEN:

Bermuda Cablevision Limited

Plaintiff

and

David Green, Minister of Labour, Home Affairs and Public Safety

and

Lawrence G. Scott and others (together constituting a Trade Disputes Tribunal)

Defendants

Mr. S. Froomkin for the Plaintiff

Mr. D. Duncan for the 1st Defendant

Mr. W Bourne, Solicitor General, for the 2nd Defendant

Mr. M Diel for the 3rd Defendant

The following cases were referred to in the judgment:

Craigola Merthyr Co Ltd v Mayor, Alderman and Burgesses of SwanseaELR [1928] 1 Ch 235

In re Anderson-BerryELR [1928] 1 Ch 290

Bermuda Industrial Union v BAS-Serco LtdBDLR [2003] Bda LR 64

American Cyanamid v Ethicon LtdELR [1975] AC 296

Shelfer v London Electricity Lighting CoELR [1895] 1 Ch 287

Corporation of Hamilton v Minister of the EnvironmentBDLR [1998] Bda LR 46

Professional Services Insurance Co Ltd v Gerling-KonzernBDLR [2003] Bda LR 55

Skandia Insurance Co Ltd v Al Amana Insurance and Reinsurance LtdBDLR [1994] Bda LR 116

R v Transport Secretary, ex parte Factortame LtdELR [1991] 1 AC 603

The Belize Alliance of Conservation NGO v Department of EnvironmentUNK [2003] UKPC 63

Trade Disputes Act 1992

Supreme Court Act 1905, s. 19

Subjects

Trade union — Whether dispute existed — Interlocutory application for injunction restraining trade dispute tribunal from proceeding — Jurisdiction — Whether statutory tribunal should be allowed to adjudicate matter presently before the court

JUDGMENT of I Kawaley, Puisne Judge

Introductory

By an Originating Summons dated May 11, 2004, the Plaintiff, in broad summary, seeks declarations that the Tribunal lacks jurisdiction because: (1) as a matter of law there was no dispute capable of being referred to it by the Minister under the Trade Disputes Act. 1992, and/or (2) the relevant dispute has now been settled.

The present application arises by way of an Ex Parte Summons issued on May 14, 2004 supported by an Affidavit sworn by Jeremy Elmas on the same date. The Plaintiff seeks an interim injunction restraining the Tribunal from proceeding until the present action is finally determined.

An interim injunction restraining the Tribunal from proceeding as it proposed to do before this application was substantively determined at a hearing fixed for 11.00 a.m. on May 18, 2004 was granted on an emergency basis at 9.00 a.m. on that date, following an initial hearing at 5.15 p.m. the previous evening which was scheduled by the Registrar in the usual manner.

Although the Plaintiff's Counsel offered to file a supporting Summons and Affidavit, I declined to accept this undertaking as the only documentation in addition to that already filed which counsel relied on was a copy of a May 14, 2004 letter from the Tribunal Chairman to the Plaintiff's General Manager which was handed to the Court and referred to in the recitals to the May 18, 2004 Order.

I accepted Mr. Froomkin's submission as Counsel that the emergency application was necessitated by the fact that the Tribunal had scheduled a hearing for before the commencement of the Plaintiff's scheduled application, which application was specifically scheduled to take place before the time the Plaintiff expected the relevant Tribunal hearing to commence. The snide suggestion made Mr. Diel that the Plaintiff had obtained this emergencyOrder in unusual or mysterious circumstances is entirely unfounded.

The present application calls falls an analysis of established legal principles governing interim injunctive relief in the context of somewhat unusual facts.

The Relevant Facts

The facts which I consider relevant for the purposes of the present interlocutory application are not the subject of any apparent dispute. I say ‘apparent’, because I appreciate that the present application was listed on an ex parte on notice basis without directions being given for the filing of evidence in opposition, and that the Defendants at a later stage in the action will be fully entitled to dispute the facts on which the Plaintiff relies. Nevertheless, the facts on which I primarily rely do not appear to me to be capable of serious dispute.

By Government Notice No. 713 of 2003, the Minister of Labour, Home Affairs and Public Safety declared pursuant to section 4 of the Trade Disputes Act 1992 ‘that a labour dispute exists in a trade or industry namely in the cable television service industry involving the Bermuda Cablevision Limited and the Bermuda Industrial Union’. By letter dated September 19, 2003, the Plaintiff's attorneys nominated Mr. Bruce Lines to serve on the Tribunal. They did not, as they could have done, challenge the right of the Minister to establish a Tribunal on the grounds that there was no applicable dispute capable of engaging the provisions of the 1992 Act. This objection to the Tribunal's jurisdiction was not seemingly raised until May 2004, when the Originating Summons herein was filed.

By letter dated September 26, 2003, the Minister (acting at all times through his Permanent Secretary) advised the parties of the composition of the Tribunal and the following terms of reference: ‘To hear arguments and examine the circumstances surrounding the termination of Cablevision employee, Mr. David Green, and to make an award’ [emphasis added].

By letter dated October 2, 2003, the Minister advised the parties that a hearing was fixed for October 13–14, 2003. On October 10, 2003, the Plaintiff's attorney Mr. Alan Dunch emailed an even-dated agreement between the Plaintiff and the 1^st Defendant (‘the Settlement Agreement’) to the Minister, stating that ‘[i]n the circumstances, there is no longer any need for the David Greene issue to be placed before the Trade Disputes Tribunal’, and asking that the scheduled hearing be cancelled. The Settlement Agreement records the resignation of Mr. Greene with effect from September 11, 2003, and the payment to him of $25,000 ‘in full and final settlement of any and all claims that Mr. Greene may have arising out of his employment with Cablevision, howsoever and whenever arising. Upon payment of the monies mentioned, all differences between the parties will be considered settled and resolved irrevocably and for all time.’ The parties further agreed that ‘any dispute arising herefrom shall be submitted to the exclusive jurisdiction of the Supreme Court.’ The final sentence of the Settlement Agreement states as follows: ‘The parties confirm that they have carefully and completely read and understood all of the terms and provisions of this Settlement Agreement.’ An open reference referred to in the Settlement Agreement was also seemingly attached to the October 10, 2003 email, together with a cheque payable by the Plaintiff to the 1^st Defendant in the amount of $25,000 which he subsequently cashed. The Minister responded to Mr. Dunch's email stating: ‘The Minister, having noted this pleasing, albeit surprising, development, will of course stand down the Tribunal. However, he wishes to communicate the information to the BIU President before making that announcement.’

This correspondence is significant for three reasons: (1) it shows that the Plaintiff believed its settlement with Mr. Greene resolved the entire dispute; (2) it shows the Minister believed that the Plaintiff's view that the entire dispute was settled might be correct; but (3) it also shows that the Minister prudently felt that it was necessary to confirm with the Bermuda Industrial Union (‘BIU’) as the other party to the dispute the correctness of the Plaintiff's unilateral settlement assertions.

On October 13, 2003, the First Defendant forwarded to the Plaintiff a personal cheque for $25,000 asserting: ‘The Settlement Agreement was signed under duress, without being given the opportunity to consult my representative, the President of the Bermuda Industrial Union’.

The following day, the Minister advised the parties that in light of the first Defendant's position on the Settlement Agreement, the Tribunal had decided not to consider the Settlement Agreement or Mr. Greene's October 10, 2003 letter as ‘those documents … did not fall within its terms of reference’. The Tribunal also advised the Minister that it had adjourned the proceedings sine die, while the Ministry itself had decided to seek ‘legal advice regarding the Tribunal's way forward in this admittedly complex matter.’

By letter dated October 14, 2003, Messrs Mello Jones and Martin responded to the Minister asserting the matter was not complex, had been settled with prior knowledge of representatives of the BIU, and that the only remedy for Mr. Greene to challenge the validity of the Settlement Agreement was by a private law action. On April 28, 2004 the Minister advised the parties that the Tribunal proposed to meet on May 10, 2004, and by letter dated May 3, 2004 to the Government Labour Relations Officer (‘LRO’) the Plaintiff's attorneys requested that the Tribunal not proceed until the Supreme Court determined the question of whether or not the Tribunal was functus. A filed copy of the originating Summons herein was forwarded to the LRO on May 6, 2004 with a further request for the Tribunal to adjourn pending the determination of these proceedings. The LRO indicated by letter dated May 7...