Powell v Paynter
| Jurisdiction | Bermuda |
| Judgment Date | 13 November 2015 |
| Neutral Citation | [2015] SC Bda 92 Civ |
| Date | 13 November 2015 |
| Docket Number | CIVIL JURISDICTION 2014 No. 206 |
| Court | Supreme Court (Bermuda) |
[2015] SC (Bda) 92 Civ
In The Supreme Court of Bermuda
CIVIL JURISDICTION 2014 No. 206
Apex Law Group Ltd— Mr Bruce Swan for the Appellant
Wakefield Quin Ltd— Mr Peter Sanderson for the Respondent
BeesMont Law Ltd— Mr Allan Doughty for the Executive Officer to the Human Rights Commission as Intervener
The parties in this matter are the Appellant (Nneka Powell) and the Respondent (Penny-Lynn Paynter).
The Appellant and Respondent were involved in a tribunal hearing conducted by the Human Rights Commission. The Appellant's application is with regard to the outcome of that tribunal hearing. Accordingly, Mr Allan Doughty is acting as Intervener representing the Executive Officer to the Human Rights Commission.
The application before the Court is a notice of motion filed by the Appellant and referred to in Counsel for the Appellant's 8 July 2015 letter to the Registrar.
The Appellant seeks “leave to appeal out of time, and to have the appeal [heard] and determined before Justice Wade-Miller, and [that] time for service be abridged”.
The submissions cite the Rules of The Supreme Court 1985 (“the Rules” or “RSC”).
By notice of appeal dated 27 May 2014, the Appellant filed an appeal against the 17 April 2014 decision of the Bermuda Human Rights Tribunal (the Tribunal).
On 2 October 2014 the matter came before Justice Norma Wade-Miller in chambers. The Appellant (Ms Powell) and her counsel were present but the matter was adjourned after it was discovered that neither the Respondent (Mrs Paynter) nor the Tribunal had been served.
On 28 April 2015 the matter was scheduled to be heard in open court on 18 May 2015.
By summons and affidavit dated 12 May 2015, the Executive Officer to the Human Rights Commission applied to be granted Intervener status in the appeal hearing.
On 18 May 2015 the matter was heard. By consent Mr Doughty was granted Intervener status pursuant to the Human Rights Act 1981 section 2(2).
At the 18 May 2015 hearing, the Respondent informed the Court that her counsel had been disbarred. The Respondent was granted a short adjournment to retain new counsel.
On 1 June 2015, Mr Sanderson filed a notice of appointment to act for the Respondent.
In an 8 July 2015 letter to the Registrar, Mr Swan for the Appellant wrote inter alia:
… we are now seeking to regularize the proceedings in line with Order 55 of the Supreme Court Rules. We are hereby attaching our notice of motion in this matter to be dated for a return date. We have not however filed an affidavit in support as we believe in this matter the circumstances surrounding the appeal are evident in the proceedings thus far.
On 13 August 2015, the Court heard this matter. During the hearing, Counsel for the Appellant requested that as a point of administration “We Care Home Services” be struck off as the First Respondent as it is an unincorporated company and a trading name of Mrs Paynter (Mrs Paynter was the Second Respondent in the Tribunal hearing). The Court agreed to this request.
Mr Swan, Counsel for the Appellant, gave an oral submission at the hearing.
Mr Swan states that he did not have a full address for the Respondent — only a post office box address. He attempted to get the Respondent's address via her “McKenzie friend” (Mr Phillips); when that failed he contacted the Tribunal administrator on 9 June 2014. The Tribunal administrator sent the Respondent's full address on 10 June 2014.
He asserts:
Upon being able to get the address we then sought about serving the documents onto Mrs Paynter and once that process was completed we contacted the Supreme Court clerks to let them know that we [had] sent documentation to Mrs Paynter, and sought about trying to have an appeal date set.
Mr Swan argues that they provided documentation to the Tribunal “at the earliest date” (4 June 2014). On 23 July, the courts sent a letter to the parties “asking for mutually agreed dates for August 2014'.
Mr Sanderson, Counsel for the Respondent, opposes the Appellant's application for leave to appeal out of time.
Mr Sanderson cites two cases to support his stance: Harold Joseph Darrell v Chief Executive Officers, Board of Directors, Bank of Bermuda [2008] SC (Bda) 50 Civ, and Phillips v Derbyshire County Council [1996] EWHC Admin 97. Darrell involves an application for leave to appeal out of time. In that case the court declined to extend the time limit; the time limit was enforced as no acceptable reason for the delay was put before the Court. Phillips refers to the need for an acceptable explanation for delay, and for there to be material before the court on which it can exercise its discretion.
Mr Sanderson refers to the timeline of the appeal. He asserts:
There was a notice of appeal filed on 28 May 2014. Order 55 [of the Supreme Court Rules] states that a notice of motion be filed within 28 days. … it's not sufficient simply to file the documents in the courts, you need to serve the opposing side and have the matter entered for hearing within 28 days. In this case nothing was done within the 28 days. A defective notice was filed a few days after the 28 days. The matter was not served and entered for hearing dates until … July 2014.
Mr Sanderson states that on 11 June 2015 he sent Counsel for the Appellant an email highlighting specific issues with the defective notice and the delay. He suggested that Counsel for the Appellant file a summons “supported by an affidavit and the reasons for the delay seeking leave to appeal out of time”. However, Counsel for the Appellant filed a notice of motion without a supporting affidavit explaining the delay. Instead, the reasons for the delay have been given orally to the Court.
Mr Sanderson maintains:
[Counsel for the Appellant's] explanation should have gone in by affidavit so that it's clear on record before the Court. … there was no explanation put in with the notice. He has given an explanation [but] I submit that it's not a satisfactory one. This basically amounts to dereliction of duty …
Mr Sanderson then turns to the explanation given by Mr Swan for the delay, namely that they did not have the Respondent's address:
… the Human Rights Tribunal was aware of the details of the parties, Mr Swan says he didn't know Mrs Paynter's address [but] there is no affidavit supporting that, he is simply saying it today. That is something that could have been obtained from the Tribunal on day one. As soon as the Judgment was received if he wanted to make an appeal they could have asked the Tribunal for Mrs Paynter's address.
Mr Sanderson maintains that there were other ways Mr Swan could have acquired the Respondent's address. He further asserts:
[Counsel for the Appellant] didn't even attempt to contact the Tribunal of record for the address of the Respondent until after the 28 days had lapsed. He didn't do it quick enough, that's a dereliction of duty.
He got 28 days to file [his] notice, serve it and ask for a date for hearing — that time had gone and he hadn't even filed a notice yet. He filed [a] notice and then he started trying to find out where he [could] serve the Respondent.
All things done too late, respondent(s) to these matters are entitled to fairness as well and [should] not have to be put to additional legal expenses and costs because an appellant acted in an untimely manner …
Mr Sanderson maintains that the Appellant was the successful party in the Tribunal's ruling. He argues that her appeal is about trying to get more money from the Respondent:
There is no acceptable explanation for the delay, but if you find there has been this is not the type of case which really justifies extension of time because of a matter of compelling public importance … It's simply an argument where someone wants a bit more money from someone who has very little money to give.
As to the merit of the appeal itself … what the appellant is attempting to get is damages or compensation that she could have attempted to gain via Employment Act proceedings. If she had … a disciplinary case of a claim...
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