Anderson Carty v The Attorney General

• Jurisdiction: Antigua and Barbuda
• Judge: Drysdale, J.
• Judgment Date: 22 February 2024
• Judgment citation (vLex): [2024] ECSC J0222-1
• Docket Number: CLAIM NO. ANUHCV2023/0379
• Court: High Court (Antigua)

In the Matter of Sections 3(b), 12(1) and Section 18 of The Antigua and Barbuda Constitution Order, Cap. 23

and

In the Matter of Sections 7 and 18 of the Industrial Court Act, Cap.124, and the Industrial Court (Procedure) Rules No. 61 of 2015 and in particular THE Attorney General powers under Rule 23 thereof

and

In the Matter of an Application for recusal of Mr. Charlesworth O.M. Brown, President of the Industrial Court from all cases in respect of the Applicant appearing before the said President in all matters as a Trade Unionist

and

In the Matter of an Application for Administrative Orders, pursuant to Rules 56 (7) of the Civil Procedure Rules (2023) Edition

and

In the Matter of An Application for An Interim Injunction pursuant to Rule 17 of the Civil Procedure Rules (Revised Edition 2023) to Prevent the Industrial Proceeding to Hold Contempt Hearings against the Applicant

Between

Anderson Carty

Claimant/Respondent

and

The Attorney General

Defendant/Applicant

CLAIM NO. ANUHCV2023/0379

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Wendell Alexander of counsel for the Claimant/Respondent

Joy Dublin, Zachary Phillips and Deshawn Browne of counsel for the Defendant/Applicant

DECISION

Drysdale, J.

1 The matter before the Court is an application to strike out the Fixed Date Claim wherein the claimant/respondent seeks the following reliefs:

‘1. A declaration that the 1 ^st respondent acted unconstitutionally and or unlawfully, and therefore the action to issue a summons of contempt of court against the applicant is null and void.

2. A declaration that the first name respondent breached and or threatened to breach the applicant's right to freedom of expression pursuant to sections 3[b] and 12[1] of the Antigua and Barbuda, Constitutional Order, Chapter 23 of the Laws of Antigua and Barbuda.

3. A declaration that the Industrial Court's reluctance to determine issues of contempt against employers within its powers under the Industrial Court Act, Cap 214 of the Laws of Antigua and Barbuda is unlawful and amounts to a denial of justice and due process.

4. A declaration that a failure to determine a plethora of cases waiting decisions for periods between 4 to 8 years amounts to a denial of justice, breach of natural justice, and breach of the constitutional rights of those persons the Applicant represents before the court or, alternatively, a fundamental breach of good Industrial Relations practices by not delivering its decision within a reasonable time.

5. An order that in light of all that has happened, the 1 ^st named Respondent be compelled to recuse himself from all proceedings in which the Applicant is involved as an advocate or representative before the Industrial Court.

6. An order compelling the 2 ^nd named Respondent, Attorney General, be compelled to intervene in matters which are the subject of the issues raised in these proceedings and which are subject of the issues before the Industrial Court, pursuant to section 18 of the Industrial Court Act, Chapter 214 of the Industrial Court, [Procedure] Rules No. 61 of 2015.

7. Damages inclusive of aggravated and exemplary damages.

8. Costs.

9. Interest pursuant to statute; and such other relief as the Court deems fit.’

2 The respondent filed an affidavit and exhibits in support of the Fixed Date Claim.

3 Subsequently on 28 ^th November 2023 the applicants filed two applications, one to strike out the statement of case and the other to remove the first applicant as party to these proceedings. In relation to the latter application, it is contented that the first applicant as a member of the Industrial Court is clothed with immunity in the performance of his duties and therefore is an inappropriate party to these proceedings. The applicants also relied on section 31 of the Industrial Court Act that stipulates that no member of the Court could be compelled to appear as a witness or a party in any proceedings in support of that application. On the day of the hearing of the application the respondent conceded that the first applicant was an inappropriate party to the proceedings and therefore an order reflecting this concession was made. The respondent also conceded that the first relief claimed could not be sustained in the circumstances.

4 The substantive application therefore concerns the application to strike out the statement of case. The applicant advances that for the following reasons the statement of case should be struck out:

‘i. It discloses no reasonable cause of action under the law the Industrial Court Act or in relation to any specific breach of the Constitution of Antigua and Barbuda and/or

ii. Is frivolous and vexatious and an abuse of the process of the Court.

iii. There are no absolute rights under the Constitution. Most, if not all rights, including those of the claimant as a person in Antigua and Barbuda, are expressly made subject to the rights and freedom of others and public interest.

iv. There is no pleaded or viable cause of action of breach or threatened freedom of expression under Section 3 [b] and 12 [1] of the Constitution.

v. The constitution of Antigua and Barbuda does not recognize representative action. Reflected in this claim, namely paragraphs 3 and 4 of the relief sought in the claim and paragraph 19, bullet point 6 of his affidavit.

vi. There is no basis in law and, in fact, for the Attorney General to intervene pursuant to section 18 of the Industrial Court Act and the Industrial Court (Procedure) Rules.

vii. The matters complained of by the claimant do not give rise to a question of public importance or matter affecting public interest and for which the public interest should be represented.

Alternatively

3. The claimant has adequate redress and or alternative remedy regarding this claim:

• i. That the first respondent acted unconstitutionally and unlawfully in issuing a summons of contempt, as provided for under section 17 of the Industrial Court Act;

• ii. To determine issues of contempt against employers is unlawful and or amounts to a denial of justice and due process as provided for under section 103 of the Constitution and the Supreme Court Order, cap 422A of the Laws of Antigua and Barbuda.

4. The constitution of Antigua and Barbuda provides that where there is adequate means of redress available to the claimant under any law, then the court may decline to exercise its powers.

5. The claimant did not seek to avail himself of any of the alternative remedies before he filed his constitutional motion.’

5 The applicant filed an affidavit in support of the application wherein he asserted that the Constitution does not recognize representative actions aligning with the respondent's claim. He also contends that there is no legal basis for the second applicant to intervene in the proceedings citing section 18 of the Industrial Court Act.

6 The applicant further argues that the issues raised in the claim do not constitute a question of public importance, impacting public interest and thus do not warrant representation based on public interest.

7 Finally, the applicant contends that the respondent has alternative remedies available, suggesting that resorting to the Constitutional Court for issues like contempt of court summons might not be the appropriate course. The applicant proposed that the respondent should seek redress through the Court of Appeal or by filing a complaint with the Judicial and Legal Services Commission.

8 It is noted that the respondent filed an amended fixed date claim and affidavit after the notice of application to strike out was filed. Pursuant to the legal authority of The Attorney General v Darrel Montrope 1 the respondent is precluded from relying on the amended application in advancing his claim or responding to the Notice of application to strike out, the proceedings having been stayed.

9 Before articulating the decision of the court, I feel it necessary to address an issue that appears to be occurring with more frequency particularly regarding administrative matters being the indiscriminate use of administrative terms often creating uncertainty as to the precise ambit of the claim being advanced. The respondent's claim is a combination of constitutional relief, judicial review, and declaratory relief for alleged breaches. In relation to the constitutional claim, the rrespondent has asserted violations of Section 3 and 12 of the Constitution, specifically related to

freedom of expression, in connection with the constitutional claim against the President of the Industrial Court. The pleaded case of the respondent also suggests that the failure to provide prompt decisions amounts to a breach of constitutional rights of the aggrieved persons that he represents. However, the respondent has not identified any specific provision in the Constitution that he relies on to found his case. This absence is violative of CPR 56.3. 4B which provides that an affidavit in support must state “in the case of a claim under the relevant Constitution — the provision of the Constitution which the claimant alleges has been, is being likely to be breached.”

10 Specifying the relevant constitutional provisions is crucial for maintaining a claim of constitutional breach thereby making it essential for the respondent to clearly articulate the constitutional basis for the alleged breach. The absence of clear identification in pleadings act as a hindrance to understanding the case that must be determined and goes contrary to the pith and substance of the CPR which obligates parties to clearly set out their case for determination. This helps avoid confusion and ensures a more efficient process. Although the respondent at the insistence of the court for clarification on this issue advised that a constitutional claim was not being pursued in relation to the issue of the absence of timely decisions, I think it important to reiterate...