Dawson v Commissioner of Police

• Jurisdiction: Bermuda
• Judgment Date: 13 February 2013
• Docket Number: Civil Jurisdiction 2012 No 397
• Date: 13 February 2013
• Court: Supreme Court (Bermuda)

2013 Bda LR 13

In The Supreme Court of Bermuda

Civil Jurisdiction 2012 No 397

In the matter of the Rules of the Supreme Court 1985, order 53, rule 3

And in the matter of a Decision of the Commissioner of Police made on 23 June 2012 to discipline the Applicant and/or terminate the Applicant's office

And in the matter of the Police Act 1974

Between:

Cebelle Dawson

Applicant

and

The Commissioner of Police

and

The Bermuda Police Association

Respondents

Mr L Scott for the Applicant

Ms S Dill for the 1^st Respondent

Mr K Masters for the 2^nd Respondent

The following cases were referred to in the judgment:

Middleton v Director of Public ProsecutionsBDLR [2006] Bda LR 79

Sharma v AntoineUNK [2006] UKPC 57

Commissioner of Police v AllenBDLR [2011] Bda LR 13

Simons and Hill Top Corp Ltd v Accountant GeneralBDLR [1999] Bda LR 43

Application to set aside leave for judicial review — Unsustainable claim

JUDGMENT of Kawaley CJ

Introductory

1. By a Notice of Application dated October 29, 2012, the Applicant sought leave to seek judicial review of the June 23, 2012 decision of the Commissioner of Police, the 1^st Respondent (‘COP’), which resulted in the termination of her employment as a Police Officer. Although no ‘decision’ made by the 2^nd Respondent, the Bermuda Police Association (‘BPA’), was expressly challenged, the following relief was sought against the BPA:

‘4. An order of mandamus requiring the 2^nd Respondent to comply with the provisions of its Rules to protect the welfare of the Applicant.’

2. On November 15, 2012, without a hearing, I made the following decision which was communicated to the Applicant's counsel by email:

‘The Applicant applied pursuant to Order 53 rule 5 for leave to seek judicial review on October 29, 2012 at 11.43 am. For administrative reasons which are unclear, the application only reached my desk today, over two weeks after it was filed.

The Applicant complains that she was constructively dismissed on June 23, 2012 when she was pressured to resign when accused of a disciplinary offence in breach of the statutory procedure laid down by the Police (Discipline) Orders 1976. She seeks, inter alia, an order of certiorari quashing the purported termination of her employment and a declaration that it was invalidly terminated in breach of her statutory procedural rights.

The claim against the 1^st Respondent appears arguable based on the material presently before the Court and I grant leave accordingly. Leave is for practical purposes granted as against both Respondents at this stage although the claim against the 2^nd Respondent seems tenuous in the extreme.’ [emphasis added]

3. By Summons dated January 21, 2013, the BPA applied to set aside the grant of leave. This Summons was listed for hearing before me on February 7, 2013 and the BPA's counsel and the Applicant's counsel both filed skeleton arguments in support of in opposition to the application to set aside the grant of leave. In these circumstances I decided to hear the application substantively on the first return date of the Summons.

4. After hearing counsel for the parties affected by the January 21, 2013 Summons, I set aside the grant of leave against the BPA and awarded the costs of the successful application to the BPA as against the Applicant, to be taxed if not agreed. I now give reasons for that decision.

The Applicant's case against the BPA

5. The Applicant's primary complaint was that the procedure adopted by the COP at a meeting on June 23, 2012 when she was persuaded to resign was unlawful and as a result her resignation was of no legal effect. However, woven onto the outer edge of the main fabric of her case was the following subsidiary complaint. In reliance upon section 28(2) of the Police Act 1974 and paragraph 2(1) Bermuda Police Association Regulations 1968 (Grounds, paragraph 8) and the assertion that the BPA was bound to adhere to the disciplinary protections provided by the Police (Disciplinary) Orders 1976 (Ground 10), the following substantive case was asserted against the BPA:

‘13. Such failure by the Second Respondent to look after the welfare of the Applicant aided the First Respondent in making a decision to breach the Applicant's legitimate expectation of a fair hearing as set out in paragraph 12 above.

14. The decision of the First and Second Respondents to unduly influence the Applicant's decision to resign by failure to follow the proper rules and by shouting (‘you're a liar’) and remaining silent respectively thereby causing the Applicant to resign, resulting in the Applicant's los[s] of office is thereby void for breach of procedural irregularity and/or in breach of her legitimate expectation of a fair hearing and a full career in the Police Service.’

6. When the Grounds are read with the Applicant's October 29, 2012 Affidavit, it is clear that the essence of the complaint against the BPA is as follows. The BPA's President was present in a disciplinary meeting in the course of which the COP pressured her to resign in violation of her statutory fair hearing rights...