Junos v Governor of Bermuda

• Jurisdiction: Bermuda
• Judgment Date: 21 April 2023
• Court: Supreme Court (Bermuda)
• Docket Number: Civil Jurisdiction 2019 No 201

Between:

Leyoni Junos

Applicant

and

XXX

Defendant

[2023] Bda LR 45

Civil Jurisdiction 2019 No 201

In The Supreme Court of Bermuda

Ex parte application for leave to appeal against decision refusing a renewed application for leave to apply for judicial review — Rules of the Court of Appeal — Legal test for granting leave to appeal

The following cases were referred to in the judgment:

Avicola Villalobos v Lisa SA and Leamington Reinsurance Co Ltd [2007] Bda LR 81

The Iran Nabuvat [1990] 1 WLR 1115

Darrell v Board of Inquiry [2010] Bda LR 48

Applicant in person

RULING of Wolffe J

1. By way of a brief history, on or about 17 May 2019 the Applicant filed a Notice of Application for Leave to Apply for Judicial Review pursuant to Order 53, rule 5 of the Rules of the Supreme Court 1985 (the “RSC”) seeking judicial review of a decision of the Respondent requiring the Applicant to resubmit a complaint that she made against The Hon. Chief Justice Narinder Hargun (the “Chief Justice”) to the Judicial and Legal Services Committee (“JLSC”). In a written ruling dated 8 July 2022 Assistant Justice Delroy Duncan KC (then “QC”) refused leave for the Applicant to apply for judicial review and it was this refusal which precipitated the Applicant filing a renewed application for judicial review on or about 15 July 2022 (pursuant to RSC Order 52 rules 3(4) and 3(5))(the “renewed application”).

2. On 2 February 2023 I heard submissions from the Applicant and Ms Lauren Sadler-Best (Counsel for the Respondent) in respect of the Applicant's renewed application and in a written decision dated 10 March 2023 I refused the Applicant's renewed application for leave to apply for judicial review. It is this decision which is now the subject of the Applicant's Notice of Motion for Leave to Appeal dated 29 March 2023 (filed pursuant to Order 2, rule 3 of the Rules of the Court of Appeal for Bermuda (“RCA”) as read with section 12(2)(a) of the Court of Appeal Act 1964).

3. The grounds of the Applicant's application for leave to appeal are as follows (stated verbatim):

• i. That Justice Wolffe erred when he failed to fully and properly consider the Applicant's written, submitted grounds for judicial review, of which there were five grounds in total.

• ii. That Justice Wolffe erred in his paragraph 34 when he found that the Governor's decision that the Applicant should resubmit a complaint that he, the Governor, was already in receipt of was not unreasonable.

• iii. That Justice Wolffe erred in his finding in his paragraph 15 that the Applicant's submissions relating to the Cayman Islands and Gibraltar were not of assistance.

• iv. That Justice Wolffe failed to address the Applicant's very real and underlying concern of the apparent and inherent bias of the Judiciary on this matter, expressed in the Applicant's original application for judicial review in paragraphs 15 – 16 of her First Affidavit.

4. I will of course address each of these grounds in due course.

The Legal Test for granting Leave to Appeal

5. As illustrated in several recent locally based authorities1, it is generally accepted that the test to be applied in applications for leave to appeal is that which is enunciated in the case of Avicola Villalobos v Lisa SA and Leamington Reinsurance Co Ltd[2007] Bda LR 81 which cited the equally instructive case of The Iran Nabuvat[1990] 1 WLR 1115. In this regard, Lord Donaldson in The Iran Nabuvat stated that:

“….no one should be turned away from the Court of Appeal if he had an arguable case by way of appeal”,

and

“That is really what leave to appeal is directed at, screening out appeals which will fail.”.

6. It is with strict observance of this test that I will consider the Applicant's leave to appeal.

Ground 1

That Justice Wolffe erred when he failed to fully and properly consider the Applicant's written, submitted grounds for judicial review, of which there were five grounds in total

7. The Applicant's complaint under this ground is that I did not fully and properly take into consideration the grounds on which she sought...