Thursday, 11 October 2012

Law Report - delay and judicial review and the Ombudsman

Davis v The Minister of Economy Trade and Industry & Anor. [2012] Bda SC 48 (Civ)
Mr Davis had applied for judicial review of:
  • the Minister of Economy Trade and Industry's decision not to refer an unfair dismissal complaint to a tribunal; and
  • the Minister for National Security's decision not to revoke the work permit of Mr Davis' former general manager, which may have enabled the Applicant to apply for his job
The Respondents sought to set aside the grant of leave to apply for judicial review. Rosewood Limited, the Applicant's former employer, appeared as an interested party.
JR had initially been granted without a hearing. The Respondents submitted that, as it concerned decisions made more six months prior to the application, it was too late to review the decision.
Kawaley CJ held that seeking legal advice and preparing the case did not account for an excessive delay [10].
It was highly prejudicial for the first Respondent's staff to have to think back to the decision months after it was made [15]. Furthermore Rosewood had been prejudiced in its ability to defend against the unfair dismissal complaint so long after the fact [16] and after a key witness had left their employ [17].
It was also prejudicial to the Minister for National Security for his decision to be considered after such a delay and, further, the Applicant had already received significant redress regarding one of his complaints to the Minister [24].
In light of the prejudice caused to the Respondents by the delay, strong public interest reasons are required to hear the application [25].
Such reasons did not exist. Considering the facts of the Applicant's complaints:
  • the Employment Inspector had made a carefully reasoned decision based upon legal advice [26];
  • the Ombudsman had assisted the Applicant in resolving the procedural problems he had faced [28];
  • revoking the work permit would not have saved the Applicant's job [30];
  • the reprimand given by the Minister for National Security was not the type of response that the court would review [31]
Accordingly there was not sufficient public interest to justify the prejudice to the Respondents or Rosewood.
Regarding the Ombudsman
The Ombudsman had been involved in the complaints prior to the JR application. The case illustrates the value that the Ombudsman's services provide as an alternative to JR in circumstances where it is not reasonable to expect an individual to resort to court action.
JR will rarely be appropriate after the Ombudsman has reviewed a case. Exceptionally it may be done in order to attempt to enforce recommendations made by the Ombudsman [38]. However, in the present case, the application was designed to obtain relief that the Ombudsman's findings did not support [39].
Where a complainant has referred a dispute to the Ombudsman and her recommendations have been implemented, the complainant will normally be deemed to have elected to pursue an alternative public remedy to JR [46].

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