Supreme Court
Action No. 418 of 2002
18th December, 2002
AWICH, J.

Mr. Dean Lindo, S.C. for the Applicant
Mr. E. Kaseke, Solicitor-General for the Respondents.

J U D G M E N T

1. Notes: Grounds for Judicial review:- Grounds for judicial review such as non-disclosure of material facts, availability of statutory relief and locus standi, used to resist judicial review application cannot be raised merely as preliminary objections, although they may be used in an application to set aside leave granted to bring the review application. Court is not precluded at the hearing of the review application from considering again grounds it had considered when it granted leave to bring the review application. Rules of procedure and practice:- There are no rules of practice and procedure in the Supreme Court of Belize Rules for regulating judicial review applications, the Rules in England are applied.

2. Oscar Selgado, the Applicant, in this judicial review application has challenged his dismissal from the Belize Defence Force (the BDF) on 18.7.2002. He obtained leave on 18.10.2002 ex parte, so as to make this application, which was listed and presented for hearing on 4.12.2002. When it came up for hearing, learned Solicitor General, Mr. E. Kaseke, for the two Respondents, the Attorney General and Minister of Defence, verbally presented to the Court what he termed, Apreliminary objections.@

3. The objection was threefold, namely:

A1. That the Applicant be required to pursue the normal, speedy, cost effective and economic remedy of appeal to the Belize Advisory Council available under section 111 of the Belize Constitution;
1. That the Applicant [did] not [provide] full disclosure... [he] did not inform the Court of his previous voluntary resignation from the Belize Defence Force... ; and
2. That the Attorney General be struck off as a Respondent to the instant action because he is neither a necessary or a proper party..., the Security Services Commission is an independent constitutional entity not subject to the direction or control of any person in the discharge of its duties.@

Mr. Kaseke relied on the evidence in affidavits filed for the Respondents in order to advance his objection.

4. Mr. D. Lindo S.C., learned counsel for the Applicant, chose to reply to the points raised by Mr. Kaseke as objection, without suggesting that the points were neither preliminary, nor objection, they formed the substantive grounds for resisting the judicial review application itself. However, during his submission, Mr. Lindo complained that he was taken by surprise and that some of Mr. Kaseke=s submissions were evidence improperly given by an attorney in the case. Much of Mr. Lindo=s own submissions relied on evidence in the affidavits filed on behalf of the Applicant and on occasions on his own statements of facts about his correspondence and inquiry, the sort of materials he had submitted were improper evidence given by Mr. Kaseke.

5. I fully appreciate the difficulty that attorneys and indeed judges find themselves in when dealing with judicial review application in this jurisdiction, because there are no rules of procedure and practice in the Supreme Court Rules (Belize) Cap. 82, concerning judicial review application. We have to resort to Order 53 of the Rules of the Supreme Court of England and Wales, by authority of our Order 78 rule 1 which allows for direct application of Athe procedure and practice then in force in the Supreme Court of Judicature (England),@ to the Supreme Court of Belize when its Rules do not provide any rules of procedure and practice for the matter at hand.

6. Order 53 of the Rules in England does not provide for preliminary objection in a judicial review application, although at r. 8 it provides for interlocutory applications which include applications for discovery, interrogatories and leave to cross-examine on affidavits filed. That, however, may not necessarily mean that preliminary objection is excluded merely because it has not been included in the Rules. Additional reason must be pointed out for not entertaining a particular preliminary objection.

7. In my view, the scheme of O. 53 of the Rules in England which we adopt, is to provide for a speedy hearing of cases that are the subject of judicial review proceedings. Such a proceeding must be brought within three months of the administrative event complained about. The proceeding is commenced by obtaining leave of court to file it in the first place. That is a step to discourage busy-bodies from bringing frivolous and vexatious review applications thereby abusing the process of court. When leave has been granted, the actual judicial review application must be brought as early as within 14 days. Notice to the Respondent need not be longer than ten days. Then during the actual application, the fact that leave had been granted upon the court having considered certain points of law does not become a fetter on the right of the Respondent to resist the actual review application on the same points of law. The more common points of law that arise at the ex parte application for leave are: whether the Applicant has locus standi, whether there is available alternative statutory relief such as an appeal, and whether the wrong Respondent (in this case, the Attorney General) has been cited as a party. Moreover, the Applicant must show good faith by making full disclosure of material facts to the case at that stage. The Court requires no more than locus standi in the Applicant and a mere arguable case on the merit, for leave to be granted.

8. So in the normal course of events therefore, there should be no need to raise any point of law grounds as preliminary objections when the application for review has come up for hearing because the application is ready to be argued and all points of law to oppose it may be presented at the hearing as part of the substantive defence of the Respondent. Moreover, the technical point that the Applicant did not make full and honest disclosure of material facts at the stage of application for leave may be used in an application to set aside the leave granted, and of course, the other grounds such as lack of

locus standi, available alternative relief and the wrong Respondent may also be used to show that an arguable case was not or could not be established for leave to be granted. The court is not precluded from considering the grounds again if an application to set aside the leave granted is made or indeed at the hearing of the judicial review application itself.

9. Mr. Kaseke cited several case authorities to support his preliminary objection. The case authorities are important and relevant to the issues that arise in the judicial review application itself, namely; non-disclosure of material facts and there being other reliefs provided for by statute. However, none of the cases was decided on a point of preliminary objection. In two of the cases the actual applications for review were decided on the grounds of availability of statutory relief; in another, leave to bring review application was decided again on the ground of availability of alternative relief; and in yet another the application to set aside leave was decided on the ground of non-disclosure of material facts.

1. In my view, it is improper in the circumstances of this case to raise the three points as merely preliminary objections because the points are indeed the substantive grounds for resisting the judicial review application. To deal with the points as preliminary objections first merely serves to punctuate an otherwise procedure intended to be a speedy one and slows it down with the result that the determination of the review application is delayed to that extent. It was, however, open to the Respondents to bring an application for court order to set aside the leave granted on 18.10.2002 to file the judicial review application. The application would be on notice - by notice of motion or summons.

2. The preliminary objection of Mr. Kaseke fails for the reasons I have given. It is disallowed. Of course, Mr. Kaseke is not precluded from raising again at the hearing of the application for judicial review, the points of law he has canvassed. I direct that the hearing of the review application be proceeded with. The Applicant is directed to obtain a date from the Registrar.

3. Let me mention something related, but not relevant to the issues in this case. I have had before me in the past applications to set aside leave which had been granted to bring judicial review application, and I know of Action No, 152 of 2002, Belize Telecommunications Ltd. v. Attorney General and Minister of Finance etc., in which my learned brother, C. Blackman, J. granted an application to set aside leave. We have entertained those applications because it is the practice in England - see for instance: R v. Lloyd=s of London, ex parte Briggs and Others [1992] QB 698 and R. v. Eurotunnel Developments Ltd, ex parte Stephens [1995] 73 P&CR1. Speaking for myself only, however, I think that an application for an order to set aside leave only serves to delay the substantive judicial review application, and protracts proceedings; it borders on abuse of court process, especially given the circumstances in Belize where there are not enough judges and the Court of Appeal sits only three times a year. If an application to set aside leave is refused and leave is maintained, a Respondent bent on delaying the judicial review application may appeal against the decision not to set aside leave. He can gain up to three months delay through the back door while waiting for the Court of Appeal to convene, and that is as long a period as is allowed to bring review application before it is time-barred. In England an appeal can be heard the same day or in a matter of days depending on the urgency. That is not possible in Belize. On the other hand, I see nothing wrong in the right to appeal against a decision refusing leave to bring a review application.

4. In view of the fact that there are no rules of procedure and practice regarding judicial review application in the Supreme Court of Belize, a situation which the learned Chief Justice himself noted in one of his learned judgments, he might wish to consider a practice direction or having the review and revision of the Supreme Court Rules speeded up so that rules for judicial review, among other omissions, are included and perhaps modifications taking into account the circumstances in Belize are effected.

5. Dated this Wednesday the 18th day of December, 2002
At the Supreme Court
Belize City.

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