Harry Matthie v Minister of Education
| Jurisdiction | Bermuda |
| Judgment Date | 03 June 2016 |
| Neutral Citation | [2016] SC Bda 59 Civ |
| Date | 03 June 2016 |
| Docket Number | CIVIL JURISDICTION 2015: No. 348 |
| Court | Supreme Court (Bermuda) |
[2016] SC (Bda) 59 Civ
In The Supreme Court of Bermuda
CIVIL JURISDICTION 2015: No. 348
Mr Eugene Johnston, J2 Chambers, for the Applicant
Mr Delroy Duncan, Trott & Duncan Limited, and Mr Brian Myrie, Attorney General's Chambers, for the Respondents
Application for judicial review — whether standing — whether application for leave made promptly and without undue delay — whether granting of relief sought would be likely to cause substantial hardship or substantial prejudice, or be detrimental to good administration — whether legitimate expectation of consultation — whether consultation was fair
By notice of motion dated 25 th August 2015, issued pursuant to leave granted on the same date, Mr Matthie seeks judicial review of the following decisions:
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(1) The Second Respondent (‘the Commissioner’)'s decision, possibly made on various dates between 31 st May and 30 th June 2015, to transfer, move, and/or alternate various teachers and/or principals throughout the public school system for the 2015/2016 school year (‘ the Transfers’);
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(2) The Minister's decision to make the Education (Parent Council) Rules 2015, on 24 th July 2015 (‘ the Rules’). The Rules provide for the establishment of Provisional Parent Councils and Parent Councils. They came into force on 8 th September 2015; and
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(3) The First Respondent (‘the Minister’)'s decision to appoint a working group known as the School Reorganisation Advisory Committee (‘SCORE’) to recommend which schools should be consolidated or closed for the 2016/17 academic year and beyond, as announced in a press release dated 22 nd April 2015 (‘ the Reorganisation’).
In December 2015, ie some months after the notice of motion was issued, SCORE issued a Report of Findings and Recommendations (‘the SCORE Report’) (which did not recommend any school closures). In February 2016 the Minister issued a consultation document inviting comments on the SCORE Report. Mr Matthie, as part of his challenge to the Reorganisation, seeks judicial review of the Minister's decision to do so. I give him leave to amend the notice of motion accordingly.
Mr Matthie seeks (i) declarations that all three decisions are unlawful and (ii) orders quashing the Reorganisation and the Rules. He submits that parents had a legitimate expectation that they would be properly consulted about all three decisions through their individual Parent Teacher Associations (‘PTAs’), either because the Respondents were under a general obligation to consult with PTAs, or alternatively, because they undertook to consult voluntarily. He submits that insofar as the consultations took place, they were seriously flawed.
The Respondents do not accept that Mr Matthie has standing to bring these proceedings. They complain that, if he has, then he has unduly delayed in doing so and that the grant of relief would give rise to the various harmful consequences identified in section 68(1)(b) of the Supreme Court Act 1905 (‘the 1905 Act’). The Respondents further submit that they were under no obligation to undertake any consultations, but that the consultations which they have carried out voluntarily were unimpeachable.
In preparing this judgment I have been greatly assisted by the very able submissions of Eugene Johnston, counsel for Mr Matthie, and Delroy Duncan, counsel for the Respondents.
Mr Matthie brings this application on behalf of himself, as the father of two children at St George's Preparatory School. This is an aided school within the meaning of section 2(1) of the Education Act 1996 (‘the 1996 Act’). He also brings it on behalf of the executive and certain other members of the Bermuda Parent Teacher Student Association (‘BPTSA’). The BPTSA is a voluntary organisation. Article 2(1) of its Constitution states that:
the paramount objective of the BPTSA shall be to optimize parental involvement in the educational process through trusting, collaborative relationships between all educational stakeholders to ensure that students achieve social, academic and vocational success’.
The BPTSA's members include various PTAs. Mr Matthie has given affidavit evidence that at a meeting on 2 nd June 2015 the BPTSA resolved unanimously to bring these proceedings. He states that representatives from, among others, seven named middle and primary schools in the maintained sector were present, although surprisingly he has declined to produce the minutes of the meeting, even in redacted form, on the grounds that they are said to be ‘ privileged’. I do not know on what grounds. Had the point been argued, I should most likely have held that, to the extent that Mr Matthie relied on the contents of the minutes in his affidavit, and insofar as was necessary to give a fair picture of the contents on which he relied, any such privilege had been waived. See, eg, Brennan v Sunderland City Council [2009] ICR479 EATper Elias J at para 16.
The Respondents' position is set out in an affidavit from the Acting Commissioner of Education, Freddie Evans. For ease of reference, I shall include him within the rubric ‘Commissioner’. He states that the Respondents recognise that the BPTSA is a group of interested and concerned parents, whose executive are stakeholders within the public education system, and that the First Respondent has engaged in consultation and communication with them on that basis. However the Respondents do not accept that the BPTSA is the representative organisation of all or most PTAs, parents, teachers or students within the Bermuda Public School System.
For purposes of obtaining leave to bring judicial review proceedings, and subsequently for purposes of an interim stay application, the Court was satisfied that Mr Matthie had standing to bring this action. That finding was provisional and subject to the court hearing full argument at a later stage.
Applying the Overriding Objective to deal with cases justly, and in particular the requirements, so far as practicable, to save expense and to allot an appropriate share of the court's resources to the case, it was just and convenient to leave final determination of the standing point to the hearing of the application for judicial review rather than deal with it on a separate application by the Respondents to set aside leave.
In my judgment Mr Matthie, both on his own behalf and acting in a representative capacity for the executive and certain other members of the BPTSA, has sufficient interest to seek judicial review of the First Respondent's decisions relating to the Reorganisations and the Rules as these decisions affect the public education system generally. The courts have in appropriate case recognised the rights both of individuals and interested organisations to bring judicial review proceedings for the public benefit. Eg see R v Legal Aid Board, ex p Bateman [1992] 1 WLR 711 QBper Nolan LJ (as he then was) at 818B (individuals); and R v HM Inspectorate of Pollution, ex p Greenpeace Ltd [1994] 4 All ER 329 QBper Otton J (as he then was) at 350 c — j (organisations). This is just such a case.
The position regarding the Transfers is more complicated and I shall deal with it when I consider the Transfers generally.
Order 53, rule 4(1) of the Rules of the Supreme Court 1985 provides that an application for leave to apply for judicial review shall be made promptly and in any event within six months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.
Thus the requirement is that the application be made promptly, which means as soon as practicable, or as soon as the circumstances of the case will allow. An application that is made after six months will by definition fail to satisfy this requirement. However the requirement will not necessarily be satisfied by an application that is made within six months. See the commentary to the 1999 Edition of the White Book at para 53/14/58.
Section 68(1) of the 1905 Act provides that the Court may refuse to grant leave for the making of an application for judicial review, or to grant any relief sought on the application, if it considers that: (a) there has been undue delay in making the application; and (b) the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. Sections 68(1)(a) and (b) are conjunctive: they must both be satisfied before the Court refuses to grant leave.
I would have thought, without being referred to any authority on the point, that undue delay in making the application is synonymous with not making the application promptly. This suggests that when deciding whether to refuse an application for leave for judicial review on the ground that it has not been made promptly, at any rate when the application is made within six months of the decision to which the leave application relates, the Court should apply the test in section 68(1)(b) of the 1905 Act just as it would when considering the consequences of undue delay.
In my judgment, whether an application for leave has been made promptly, without undue delay, depends partly on the nature of the decision which it is sought to review. Where a decision is highly time sensitive, such as the Transfers, the standard of promptness will be more exacting than where it is not.
In the present case, teacher transfers were concluded on 1 st June 2015 and principal transfers on 27 th July 2015. The Rules were...
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