Wanda Pedro v The Minister of Legal Affairs and Constitutional Reform
| Jurisdiction | Bermuda |
| Judge | Hargun CJ |
| Judgment Date | 26 September 2022 |
| Court | Supreme Court (Bermuda) |
| Docket Number | CIVIL JURISDICTION 2021: No. 37 |
[2022] SC (Bda) 68 Civ
The Hon. Chief Justice
CIVIL JURISDICTION 2021: No. 37
In The Supreme Court of Bermuda
Application to strike out proceedings under RSC Order 18 Rule 19; whether the current proceedings constitute an abuse of process given that the same issues have either been determined in previous proceedings or should have been raised in the previous proceedings
Ms. Wanda Pedro, Plaintiff in Person
Mr. Brian Moodie, Attorney-General's Chambers, for the Defendants
These proceedings, commenced by Originating Summons filed on 5 February 2021, are the latest chapter of the proceedings commenced by Ms. Wanda Pedro (“ the Plaintiff”) against various individuals and entities, including the Department of Child and Family Services (“ DCFS”) of Bermuda, Magistrate Tyrone Chin and Sr. Magistrate Juan Wolffe (“ the Magistrates”), in respect of the circumstances in which her son, (“ Michael Jr.”), came to be removed from her care and, by an order made on 8 January 2010, she and Michael Jones (“ Michael Sr.”) were awarded joint custody of Michael Jr. but Michael Sr. was to have care and control of him.
In these proceedings the Plaintiff claims that the Magistrates denied her a fair trial by:
-
(i) Obstructing the Plaintiff's child and other witnesses to testify.
-
(ii) Failing to follow the law and protocols that would have required the Magistrates to (i) have an Emergency Order in order to remove the Plaintiff's child without her knowledge on 31 March 2008 and 1 April 2008; and (ii) to have a report submitted from the Director of DCFS which would have shown the allegations were properly investigated.
-
(iii) Failing to notify the Plaintiff that the court was not properly equipped with sound recording devices in order to protect the integrity of the proceedings. This failure, the Plaintiff contends, amounted to a serious violation of the Plaintiff's constitutional and human right to have a fair trial since a “ fair trial” requires that there is an ability to account or obtain an accurate record of all that transpired in the proceedings.
-
(iv) Magistrate Chin discharged an order he made on 3 March 2003 granting the Plaintiff sole custody, care and control of Michael Jr. and subsequently, on 5 June 2008, awarded Michael Sr. full care and control and custody of Michael Jr., without an application to vary the order of 3 March 2003, and without the plaintiff being served with such an application filed with the court.
-
(v) Magistrate Wolffe had already made his mind up before any witnesses were called to give evidence. The Plaintiff contends that Magistrate Wolffe violated her rights to a fair trial when he made the determination without following the normal court protocols and procedures that would normally allow for witnesses and evidence to be adduced prior to a judgment being rendered.
-
(vi) The Magistrates denied the Plaintiff a fair hearing by obstructing her from accessing the court in September 2013, when she filed an application making a complaint that her son was still being physically abused by his father and that his father was violating a court order for her son to have Skype Access to her and her sister who had moved to the United Kingdom in August 2011.
The Plaintiff contends that because of the actions of the Magistrates, she has suffered psychiatric and psychological injury. The Plaintiff contends that the actions of the Magistrates amounted to misfeasance in public office, abuse of power and breach of duty. In this regard the Plaintiff specifically relies upon her contention that the Magistrates unlawfully sanctioned the removal of Michael Jr. from her care and control on 1 April 2008, without evidence to substantiate the allegations presented by DCFS, in breach of her constitutional rights as set out in Article 1, 3 and 6 of the Bermuda Constitution Order 1968 (“ the Constitution”).
As a result, the Plaintiff claims damages by way of economic loss suffered by her. The Plaintiff claims that as a result of the continuous psychological harm inflicted upon her, she was unable to maintain employment during the 12 year “ battle” to regain custody of Michael Jr. She claims that the removal of Michael Jr. resulted in the breakdown of her entire family unit and led to continuous mental anguish or torment and made her incapable of maintaining employment.
The Plaintiff claims that as a result, she has suffered irreparable loss and damage to her reputation in the business community and within the family.
Based on these allegations, the Plaintiff claims aggravated damages for psychological and psychiatric harm, exemplary damages for the loss of family life; exemplary damages for the damage to the Plaintiff's reputation; and damages for the economic loss suffered by the Plaintiff during the last 12 years.
The present judgment deals with the application by the Defendants to strike out these proceedings, pursuant to RSC Order 18 Rule 19 on the grounds that the Plaintiff's Statement of Claim discloses no reasonable cause of action, is frivolous or vexatious or is otherwise an abuse of the process of the court (“ the Strike out Application”).
The Defendants also seek an order that the Plaintiff's writ is irregular in that it does not comply with RSC Order 6 Rule 5(1)(b).
Alternatively, the Defendants seek relief that (i) the Plaintiff, who is ordinarily resident outside the jurisdiction, pay security for costs pursuant to RSC 23; and (ii) an order that all claims relating to the removal of Michael Jr. from the Plaintiff's custody in or around 2008 be tried together in order to make the most efficient use of the court's time and resources.
In order to properly understand the background to this application, it is necessary to review the earlier proceedings commenced by the Plaintiff by Writ of Summons dated 10 July 2018 claiming relief against DCFS (“ the 2018 Proceedings”). The 2018 Proceedings were also subject to a strike out application by the officers of DCFS and that application was heard by Wheatley AJ on 24 September 2019. By her Ruling dated 28 November 2019, Wheatley AJ struck out the entirety of the Plaintiff's claim on the basis that it was frivolous, vexatious and abuse of process. Wheatley AJ awarded the costs of the application to DCFS, on a standard basis, to be taxed if not agreed.
The allegations made by the Plaintiff in the 2018 Proceedings are set out in paragraphs 1 and 2 of the Ruling of Wheatley AJ:
“1. The Plaintiff filed a Writ of Summons dated 10 July 2018 (“the Writ of Summons”). The underlying facts of this case relate to the Plaintiff's son (who under the supervision and ultimate the care) of the Department of Child and Family Services (“DCFS”) by way of applications made by DCFS to the Magistrates' Family Courts. The Plaintiff's allegations are, inter alia, that DCFS was negligent in making their applications for the supervision orders and ultimately a care order in relation to her son. These are applications which were made over a few years between 2008 and 2010. The Plaintiff is seeking damages in the sum of $250,000. The Plaintiff was very descriptive in her statement of claim as to why she is seeking damages, but ultimately it can be summarized as pain and suffering.
2. The Plaintiff alleges her pain and suffering was caused by actions of DCFS which amount to criminal charges such as, child abduction, unlawful removal of her son, falsification of reports/records, suppression/omission of evidence, fraud. She also alleges DCFS have caused damage to her reputation and inflicted trauma on her. Moreover, the statement of claim averred to make claims on behalf of her son, who is now twenty years old, for pain and suffering.”
In the 2018 Proceedings, the Plaintiff initially also made claims against the Magistrates and the Magistrates were formally made parties as defendants in those proceedings. However, the Plaintiff voluntarily elected to remove the Magistrates as parties to the 2018 Proceedings. This is reflected and explained in paragraph 8–9 of the Ruling of Wheatley AJ:
“8. For the purpose of completeness, it should be noted these proceedings initially included the Sr. Magistrate, Juan Philip Wolffe, Magistrate Tyrone Chin and Miss Ashley Smith as her position of Court Associate in the Magistrates' Family Court. At the first directions hearing, I brought it to the Plaintiff's attention that Magistrates could not be held personally liable for decisions made in their judicial capacity. This was accepted by the Plaintiff.
9. As it related to Miss Smith acting in her course of employment with the Judicial Department as a Court Associate in the Magistrates' Family Court, the Plaintiff also accepted that it was not Miss Smith who played any decision-making role as it relates to the case and was merely carrying out her employment function as a result of the decisions made by the Courts. As such, the parties' consented to these parties being removed as Defendants to this matter. (emphasis added)
The basis of the Ruling which struck out the claims in the 2018 Proceedings is set out at paragraphs 31–32:
“31. Ms. Pedro has not raised any valid argument that she can escape the reliance of the Defendant on her claim being time barred in accordance with the Act. Allowing Ms. Pedro to proceed with this claim would amount to clearly frivolous, vexatious ( David Tucker and Hamilton Properties Limited) and an abuse of process of the courts ( White Book (1999 Edition) 18/19/19) as it would effectively give her a second bite of the cherry. The Plaintiff did not appeal the decisions made in the Magistrates' Family Court or make any reasonable effort to bring this...
To continue reading
Request your trial