Powell v Paynter
| Jurisdiction | Bermuda |
| Judgment Date | 13 November 2015 |
| Date | 13 November 2015 |
| Docket Number | Civil Jurisdiction 2014 No 206 |
| Court | Supreme Court (Bermuda) |
[2015] Bda LR 98
In The Supreme Court of Bermuda
Civil Jurisdiction 2014 No 206
Mr B Swan for the Appellant
Mr P Sanderson for the Respondent
Mr A Doughty for the Intervenor
The following cases were referred to in the judgment:
Darrell v Chief Executive Officers, Board of Directors, Bank of BermudaBDLR [2008] Bda LR 54
Phillips v Derbyshire County Council [1996] EWHC Admin 97
Re A and B (Prohibited Steps Order at Dispute Resolution Appointment) [2015] EWFC B16
Tribunal decision — Application for leave to appeal out of time — Delay
RULING of Wade-Miller J
1. The parties in this matter are the Appellant (Nneka Powell) and the Respondent (Penny-Lynn Paynter).
2. 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.
3. 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.
4. 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”.
5. The submissions cite the Rules of the Supreme Court 1985 (“the Rules” or “RSC”).
6. 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).
7. 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.
8. On 28 April 2015 the matter was scheduled to be heard in open court on 18 May 2015.
9. 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.
10. 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).
11. 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.
12. 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.’
13. 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.
14. Mr Swan, Counsel for the Appellant, gave an oral submission at the hearing.
15. 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.’
16. 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”.
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