Bermuda Emissions Control Ltd v Premier of Bermuda

• Jurisdiction: Bermuda
• Judge: Ian RC Kawaley CJ
• Judgment Date: 07 September 2016
• Neutral Citation: [2016] SC Bda 82 Civ
• Docket Number: CIVIL JURISDICTION 2016: No. 322
• Court: Supreme Court (Bermuda)
• Date: 07 September 2016

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

Between:

Bermuda Emissions Control Ltd

Applicant

and

(1)The Premier of Bermuda

(2) Sir Anthony Evans

(3) Hon John Barritt

(4) Fiona Luck

(5) Kumi Bradshaw

(6) The Attorney General For Bermuda

Respondents

[2016] SC (Bda) 82 Civ

CIVIL JURISDICTION 2016: No. 322

In The Supreme Court of Bermuda

Judicial review — Commission of Inquiry Act 1935 — appointment of commission — validity of commission — leave to seek judicial review — summary determination of point of construction at interlocutory inter partes leave hearing

Mr Eugene Johnston and Mrs Dawn Johnston, J2 Chambers, for the Applicant

Mr Gregory Howard, Attorney-General's Chambers, for the 1 ^st and 6 ^th Respondents

Mr Jeffrey Elkinson and Mr Ben Adamson, Conyers Dill & Pearman Limited, for the 2 ^nd to 5 ^th Respondents

RULING

(in Chambers)

Introductory

1 On February 24, 2016, the Premier appointed the 2 ^nd to 4 ^th Respondents as members of a Commission of Inquiry chaired by the 2 ^nd Respondent (the ‘COI’). He purported to do so under section 1A of the Commission of Inquiry Act 1935 (the ‘Act’). The first public hearing of the COI took place on June 27, 2016. At that hearing, the COI announced that they proposed to investigate, inter alia, the award of contract and tendering process in relation to the TCD (Transport Control Department) emissions Centre. The Applicant (‘BECL’) was the relevant contracting party.

2 Under cover of an extremely cordial letter dated July 11, 2016, the COI served Mr Donal Smith, a shareholder of BECL with a subpoena which does not directly concern the present application and which was, apparently, not pursued after Mr Smith explained to the COI that the documents sought were not his property. Under cover of a letter dated August 22, 2016, the COI served a subpoena on Mr Delroy Duncan on behalf of the corporate director of BECL, Trocan Management Ltd. (the Summons’). The Summons required him to produce corporate records relating to BECL and to appear before the COI on August 28, 2016.

3 Mr Duncan duly appeared before the COI (consisting of one member, the 5 ^th Respondent) and produced the documents sought. However BECL appeared by counsel and objected to the validity of the Subpoena on grounds which apparently prompted the COI's counsel to indicate that any such challenge would have to be pursued before this Court. The documents were not accordingly formally tendered to the COI.

4 By Notice of Application dated August 29, 2016, BECL applied for leave to seek judicial review of various decisions and to obtain an interim stay of the Summons. An oral hearing was requested. The matter was initially listed on an ex parte basis without notice before Hellman J on August 30, 2016, who very properly adjourned the matter for an inter partes or ex parte on notice hearing as an obviously controversial stay was sought. In lieu of an interim injunction or stay to hold the ring, he ordered BECL to deliver the documents sought forthwith to the Court to be held under seal until the determination of the injunction application or until further Order of this Court. As Hellman J was unavailable for an early hearing the leave and stay applications were listed before me for substantive hearing.

5 An early hearing was pressed for by the COI which was concerned to avoid disruptions to its schedule which included a public hearing planned for September 28, 2016. This time sensitivity was reiterated before me although I was not much persuaded by this point in its narrowest sense. In approaching the present application, however, I have attempted to balance the need for this Court to properly exercise its supervisory jurisdiction over the COI with the need to avoid the exercise of such supervisory jurisdiction being used to undermine the efficient and clearly lawful workings of the COI in their broadest canvass. The purpose of judicial review is to promote the interests of good public administration. The COI, within a narrower mandate, has a similar objective. Assuming the COI's mandate to be a lawful one, this Court should be astute to avoid so far as is possible a situation where the judicial review processes of this Court have the indirect effect of hampering the due administration of the Inquiry.

6 As the Judicial Committee of the Privy Council (Lord Phillips) observed in R (Mario Hoffman)-v- Commission of Inquiry and Governor of Turks and Caicos Islands [2012] UKSC 17 (a case which Mr Howard relied upon for more substantive purposes):

‘61. It seems clear, from the summary set out in the Annexe, that the Commissioner and his staff focussed initially on attempting to obtain information from the members of the House of Assembly and the Cabinet Secretary, the Permanent Secretaries and under Secretaries. The stated intention was that the Commissioner would then decide upon those whose conduct was the subject of the inquiry or who were implicated or concerned in its subject matter and afford them the opportunity to testify. This plan was derailed by the obduracy of members of the Assembly in attempting to bring the inquiry to a halt by judicial review and in failing to respond to the Commissioner's invitation to provide relevant evidence…’ [Emphasis added]

The impugned decisions

7 BECL sought declarations that the following decisions were invalid:

• (1) The decision of the Premier to appoint the COI (‘the Inquiry’);

• (2) The decision of the COI to investigate the TCD Emissions Centre (‘the Emissions Decision’);

• (3) The August 22, 2016 decision of the COI to summon BECL to appear and produce documents (‘the Summons’);

• (4) The intended re-summoning of Mr Duncan (‘the Intention’).

The validity of the Inquiry

8 This Court's usual approach is to grant leave to pursue judicial review liberally and then give directions for a full hearing on the merits at a later date. Following that course in relation to a legal challenge to the entire validity of the COI would cast a shadow over the entire functioning of the Commission for a protracted period of time. This first of four challenges ultimately turns on the construction of one comparatively short document, a short legal point which all parties were clearly adequately prepared to fully argue at the adjourned leave hearing.

9 The point is at first blush arguable, as Hellman J provisionally opined on August 30, 2016. I accordingly grant leave and proceed to finally determine this issue at this stage on the grounds that further argument on this issue would be wasteful in costs terms and with a view to minimizing the length of time that the COI is left uncertain about the validity of its existence. This is ultimately a case management decision informed by this Court's duty under Order 1A rule 4(2)(c)-(d) to actively manage cases by, inter alia,

‘…identifying the issues at an early stage [and] deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others…’

10 The Premier purportedly created the COI with an instrument in the following pertinent terms:

‘IN EXERCISE of the powers conferred on me by section 1A of the Commission of Inquiry Act 1935, I MICHAEL H DUNKLEY, Premier of Bermuda, do hereby appoint

SIR ANTHONY HOWELL MEURIG EVANS (Chairman)

HON JOHN BARRITT

FIONA ELIZABETH LUCK

KUMI DUANE BAMIDELE BRADSHAW

(hereinafter, “the Commission”)

To inquire into the following matters, which are, in my opinion, for the public welfare:

Having regard to the Report of the Auditor General on the Consolidated Fund of the Government of Bermuda for the Financial Years ending in 2010, 2011, and 2012, and with regard to any matters arising under Section 3 of the Report to-

Scope of Inquiry

1. Inquire into any potential violation flaw or regulations, including the Civil Service Conditions of Employment and Code of Conduct, Financial Instructions, and Ministerial Code of Conduct, by any person or entity, which the Commission considers significant and determine how such violations arose;

References to other agencies

2. Refer any evidence of possible criminal activity, which the Commission may identify, to the Director of Public Prosecutions and the Police;

3. Refer any evidence of possible disciplinary offences, which the Commission may identify, to the Head of the Civil Service;

4. Draw to the attention of the Minister of Finance any matter, which the Commission may identify, appropriate for surcharge under section 29 of the Public Treasury (Administration and Payments) Act 1969;

5. Draw to the attention of the Minister of Legal Affairs (as the Enforcement Authority for Bermuda) any matter, which the Commission may identify, appropriate for civil asset recovery under Part IIIA of the Proceeds of Crime Act 1997;

6. Draw to the attention of Attorney-General any matter, which the Commission may identify, appropriate for civil proceedings before the courts;

Recommendations for the future

7. Consider the adequacy of current safeguards and the system of financial accountability for the Government of Bermuda;

8. Make recommendations to prevent and/or to reduce the risk of recurrences of any violation identified and to mitigate financial, operational and reputational risks to the Government of Bermuda;

Any other matter

9. Consider any other matter which the Commission considers relevant to any of the foregoing…’

11 Mr Johnston's central legal thesis was supported by eminent authority: Ratnagopal-v- Attorney General [1970] AC 974 (JCPC); Re Royal Commission on Licensing [1945] NZLR 665. When a statute empowers the Executive to appoint a commission of inquiry, the appointing authority must define the commission's terms of reference. A commission which is so broadly framed as to purportedly empower the appointed body to determine the scope of its own jurisdiction will be unlawful and struck down by the courts. The...