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Supreme Court Claim No 393 of 2011

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Supreme Court Claim No 393 of 2011 IN THE SUPREME COURT OF BELIZE, A.D. 2011 CLAIM NO. 393 OF 2011 IN THE MATTER of Motor Vehicles and Road Traffic Regulations, Chapter 230 of the Subsidiary Laws of Belize, Revised Edition 2003 of the Subsidiary Laws of Belize, Revised Edition 2003 AND IN THE MATTER of Road Service Permits for Omnibuses issued to Gilharry’s Bus Line FROYLAN GILHARRY SR. dba CLAIMANT GILHARRY’S BUS LINE AND TRANSPORT BOARD 1 st DEFENDANT CHIEF TRANSPORT BOARD 2 nd DEFENDANT MINISTER OF TRANSPORT 3 rd DEFENDANT THE ATTORNEY GENERAL 4 th DEFENDANT Hearings 2011 3 rd August 9 th August Mr. Fred Lumor SC for claimant. Mr. Nigel Hawke and Ms. Illiana Swift for the defendants. LEGALL J. JUDGMENT 1 1. In this matter, which was commenced by Fixed Date Claim dated 30 th June, 2011, the defendant took a point in limine, to which the claimant replied. After the submission on the preliminary point, the court invited, on the same date, counsel on both sides to address the substantive issues in the claim in order to expedite the matter, in the event of failure on the preliminary point. Having fully considered the preliminary point, I am of the view that it has merit and must be upheld. 2. The preliminary point raises the issue of the interpretation of section 3 of the Public Authorities Protection Act Chapter 31(the Act) of the laws of Belize. Section 3 states as follows: “3.­(1) No writ shall be sued out against, nor a copy of any process be served upon any public authority for anything done in the exercise of his office, until one month after notice in writing has been delivered to him, or left at his usual place of abode by the party who intends to sue out such writ or process, or by his attorney or agent, in which notice shall be clearly and explicitly contained the cause of the action, the name and place of abode of the person who is to bring the action, and the name and place of abode of the attorney or agent. (2) No evidence of any cause of action shall be produced except of such as is contained in such notice, and no verdict shall be given for the plaintiff unless he proves on the trial that such notice was given, and in default of such proof the 2 defendant shall receive in such action a verdict and costs.” 3. It is not in dispute that notice in writing required by the section was not complied with by the claimant prior to bringing the claim. It is not in dispute also that the defendants are a public authority, and the subject of the claim was done in the exercise of their office. The preliminary submission of the defendant is that the claimant has failed to comply with the mandatory provisions of the section 3 requiring notice in writing before bringing the claim; and on this basis the claim ought be struck out and costs awarded to the defendants. In support of the preliminary point, the defendants rely on Supreme Court decisions namely, Eurocaribe Shipping Services Ltd. v. Attorney General No. 287 of 2009; National Transport Services Ltd. v. The Transport Board and Chief Transport Officer, No. 728 of 2008; and the Court of Appeal decision in Castillo v. Corozal Town Board and Costa 37 WIR 86. 4. In Eurocaribe Shipping, the claimant by a fixed date claim, sought among other reliefs, a declaration that a decision made by the defendants to erect a concrete wall on a common boundary between the claimant’s property and that of another, was null and void. The intention of the claim was to enforce compliance by the defendants of their statutory obligations. The claimant failed to comply with section 3 of the Act by delivering notice to the defendant. The court found that the requirements of section 3 were mandatory, and dismissed the claim on the basis of the preliminary point. The view of Conteh CJ, 3 as to the intention of section 3, is relevant. “The intention, “says the Chief Justice, “of the Act is to put public authorities on notice of pending claims against them in the execution of their duties …. and would undoubtedly put that authority on notice to conform or amend its ways by action and possibly thereby preempt or remove any basis for a complaint giving rise to a claim.” See also Castillo above at page 88 where Summerfield P says that the ‘measure is obviously designed to protect the public interest.” It is clear from Eurocaribe Shipping that the claimant had brought an action against the defendants to get them to comply with their statutory duties. The court considered that the claimant was seeking by the claim administrative orders for a declaration, and that section 3 was mandatory in relation to the reliefs the claimant was seeking. In this matter before me, the claimant is seeking administrative orders on the Fixed date claim for declarations. 5. The other case is the National Transport Services Limited. The particulars of the claim in this case have not been fully given, but it seems that the claim was for judicial review of decisions taken by the defendants. Section 3 of the Act was not complied with, in that notice was not given to the defendants. Awich CJ ag. dismissed the claim for non compliance with section 3, which section, according to the learned judge, included a claim or a fixed date claim. 6. In Castillo v. Corozal Town Board and Acosta, the respondent board employed a driver, Antonio Acosta, who in the course of his employment with the respondent, drove a motor vehicle belonging to 4 the respondent into a car belonging to the plaintiff Castillo, causing damage thereto. The plaintiff brought a writ against the respondent and Acosta claiming damages in negligence. No notice was given to the board by the plaintiff as required by section 3 of the Act. At the conclusion of the case for the plaintiff, counsel for the board applied to have the matter dismissed for non compliance by the plaintiff with section 3(1) of the Act. The trial judge accepted the submission and dismissed the suit against the respondent. On appeal by the plaintiff to the Belize Court of Appeal, the court, in dismissing the appeal, held that section 3(1) of the Act made provision for a mandatory condition precedent to the institution of a suit against a public authority, namely, the delivery of notice in writing as required by the section. Since, according to the court, the provisions of the section are mandatory, the judge did not have a discretion; and rightfully entered judgment for the respondent. The head note I think captures the principle laid down by the Court of Appeal in Castillo. It states as follows: “When proceedings are instituted against a public authority and the plaintiff fails to prove at the hearing that he has given notice of the proceedings under section 3(1) of the Public Authorities Protection Ordinance (as is required by section 3(2) the trial judge has no discretion in the matter and is bound to enter judgment for the defence with costs. The defence is not required to plead the Ordinance.” 7. It is to be noted that section 3(2) of the Act states that no verdict shall be given for the plaintiff unless he proves on the trial that such notice 5 was given. Where there is default of such proof, as in this case, judgment is to be entered for the defendant with costs. Section 3(2) is also mandatory. In the case before me, neither section 3(1) nor 3(2) was complied with. Where proof in terms of section 3(2) is absent even though there may have been compliance with section 3(1), the matter comes to an end, as the judge would have no discretion in the matter. The matter also comes to an end, if there is no compliance with section 3(1) of the Act. 8. The claimant, on the other hand, submits that section 3 of the Act – indeed the entire Act – does not apply to or extend to judicial review proceedings, which proceedings do not amount to an action or civil proceedings between two parties in disputed litigation. Since judicial review, according to the claimant, is claimed, the Act is not applicable, because the Act is only applicable to actions and civil proceedings; and since the claim by the claimant is not an action, as that word is used in section 3 of the Act, nor is it civil proceedings, which the word action is defined to include, the Act is not applicable to the claim of the claimant, and the claimant is not therefore required to comply with section 3 of the Act. The claimant has given a definition of the word “action.” Quoting Supreme Court Practice 1999 Vol. 2 paragraph 20A­557, the claimant submits that “The word “action” in its natural meaning refers “to any proceedings in the nature of a litigation between the plaintiff and the defendants.” This definition comes from Kennedy LJ in Johnson v. Refuge Assurance Co. 1913 1 KB 259 at 264 where the judge said: 6 “Prima facie I should say that the word “action” in the phrase “not being an action” in Order LV111., r. 15, would seem to be used in its natural meaning, as referring to any proceeding in the nature of a litigation between a plaintiff and a defendant.” The learned judge was giving a definition of the word “action” as used in the Rules of Court existing at that time, and not as used in section 3 of the Act.
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