Anthea de Bellotte Appellant v [1] The Minister of Communications, Works [2] The Attorney-general of Grenada Respondents [ECSC]

• Jurisdiction: Grenada
• Judge: MITCHELL, J.A. [AG.],Don Mitchell,Justice of Appeal [Ag.]
• Judgment Date: 22 November 2011
• Judgment citation (vLex): [2011] ECSC J1122-1
• Court: Court of Appeal (Grenada)
• Docket Number: HCVAP 2011/017
• Date: 22 November 2011

[2011] ECSC J1122-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Don Mitchell

Justice of Appeal [Ag.]

HCVAP 2011/017

In the Matter of the Arbitration Act, Cap 19 of the 1990 Revised Laws of Grenada

and

In the Matter of an Arbitration between Anthea De Bellotte and the Minister of Communications, Works and the Attorney General of Grenada

Between:

Anthea de Bellotte

Appellant

and

[1] The Minister of Communications, Works

[2] The Attorney-general of Grenada

Respondents

Appearances by written submissions:

Mr. Cajeton A. K. Hood, for the Appellants

Mr. Darshan Ramdhani, Solicitor General, Ms. Camille Gooding-DeSouza with him, for the Respondent

Interlocutory appeal — Claim made by fixed date claim form seeking order to set aside the appellant's arbitration award — Application to strike out fixed date claim form — Sections 18 and 19 of the Arbitration Act, Cap. 19, Revised Laws of Grenada 1990 ("the Arbitration Act") — Whether the Government's fixed date claim form was capable of being construed as an application to remit or set aside an award filed pursuant to sections 18 and 19 of the Arbitration Act

Held: dismissing the appeal and confirming the order of the learned trial judge with costs to the respondent to be assessed if not agreed, that:

1. The learned trial judge was correct to have decided that the application of Government fell squarely within the requirements of sections 18 and 19 of the Arbitration Act. 1 Her decision to set down the matter brought by fixed date claim form for hearing on a date to be fixed by the Court Administrator was a proper exercise of her function as a case manager.

One Call Construction Company Limited v Grenada Solid Waste Management Authority Grenada HCVAP 2009/014 (delivered 8 ^th September 2010, unreported) followed.

DECISION

MITCHELL, J.A. [AG.]

1 This is an interlocutory appeal by Anthea De Bellotte ("Ms. De Bellotte") against an order of the High Court in Grenada dismissing her application to strike out a fixed date claim form filed by Government and naming her as the defendant. As this is an interlocutory appeal it will not be necessary or appropriate to go into the facts of the disptute.

2 The fixed date claim form which was the subject matter of the dispute had been filed on 22 ^nd July 2010. By it, Government sought an order that the final arbitration award in Ms. De Bellotte's favour made on 14 ^th June 2010 be set aside or remitted for reconsideration of the Tribunal together with the court's opinion on the question of law "the subject-matter of this appeal" on the ground that the Tribunal erred in law in a number of its findings.

3 The claim sought an order that the time for "appealing" the interim award be extended and an order that the interim award be set aside or remitted for the consideration of the Tribunal together with the court's opinion on the question of law whether Ms. De Bellotte was an employee within the meaning of her contract and the Employment Act 1999, 2 thereby entitling her to maternity leave.

Government also sought an order staying all proceedings, and an order staying the final award.

4 On 17 ^th September 2010, Ms. De Bellotte filed an application in the High Court under Rule 9.7(1) Civil Procedure Rules 2000 ("CPR"), supported by an affidavit of one Joseph Ewart Layne, seeking a declaration that the court had no jurisdiction to try the Government's claim and for an order striking out the fixed date claim form. The grounds for the application included, that Government described its claim as "an appeal" from the arbitration award and they were seeking to have the final award set aside or alternatively to have the matter remitted for reconsideration by the tribunal in addition to seeking the court's opinion on several questions of law forming the subject matter of their appeal on the ground that the tribunal erred in law. However, first, the Arbitration Act3 did not make reference to an appeal process. Second, the Act did not make provision for parties to directly seek the court's opinion on a matter of law. Third, it was Part 60 CPR that provides for appeals to the High Court. CPR 60(2)(a) provides that the grounds of appeal must state the enactment enabling an appeal to be made to the court. Fourth, Part 61 CPR allows for appeals by way of case stated, and provides that parties may only apply for an order directing an arbitrator to refer a question of law to the court by way of case stated, and there is no provision allowing parties to refer a question of law to the court directly. Ms. De Bellotte further complained that the fixed date claim form did not identify the enactment that gave the right to appeal against the award or under which rule of CPR they framed their appeal. Finally, that the applicant intended to make an application that the Arbitrator's award be filed in court pursuant to section 69 of the Civil Procedure Act4 and the respondents to the application would be given notice requiring them to show cause why the award should not be filed and this procedure will give the respondents a right of access to the court which is the correct way in which the respondents' issues should be addressed. Government's claim was therefore not properly before the court and the court ought not to exercise its jurisdiction to try the claim.

5 Both the Government's fixed date claim form and Ms. De Bellotte's interlocutory application came before Price-Findlay J. in the High Court. She gave a decision on 7 ^th July 2011. It is against that decision that this appeal lies. The learned trial judge ruled as follows:

"[15] Even though the Applicants in their application make reference to the words "appeal" and "appealing", it is clear from paragraph 1 that the purport of the application is a request "to remit or set aside" the final award of the arbitrator. Further, in paragraph 3, they again request either remittance or setting aside of the award.

"[16] This places the application squarely within the requirements of sections 18 and 19 of the Arbitration Act. This is the power and the jurisdiction with which the Court is clothed under the Arbitration Act.

"[17] It is set out clearly in Halsbury's Laws 4^thEdition, Vol 2 at para 616, the procedure to be followed in making a request to remit or set aside the award of an arbitrator.

"[18] "An application to remit or set aside an award must be made by an originating motion within six weeks after the award has been made or published to the parties. The notice of motion must state in general terms the grounds of the application, and, where the motion is founded on affidavit evidence …"

"[19] I therefore find that this is not an appeal to be governed by CPR part 60 but an application challenging the award made by the arbitrator. Under the old rules this application would have been made by originating motion and is now made by way of Fixed Date Claim Form.

"[20] Even though the Claimants/Respondents have approached the Court by way of CPR Part 60, I find that this is not an appeal but an application to remit or set aside the award of the arbitrator.

"[21] I will treat the Fixed Date Claim Form as an application, and I find that the Court does have jurisdiction to hear the applications; however, as the application applies to the questions of law, I find that the Court has no jurisdiction to hear and determine those matters, as under section 31(1) of the Act, it is for the arbitrator or umpire to state a case for the determination by the Court on questions of law.

"[22] I do not find that the applicant has locus standi to bring to this Court questions of law pursuant to the Arbitration Act.

"[23] In the circumstances, I find that the Court has jurisdiction to hear the matter and will exercise its discretion to do so.

"[24] The matter is hereby set down for hearing on a date to be fixed by the Court Administrator.

"[25] There is no order as to costs."

6 On 22 ^nd July 2011, Ms. De Bellotte applied for leave to appeal the decision of the learned trial judge and for a stay of execution. The application came before Pereira J.A., and by Directions given on 6 ^th October 2011, Pereira J.A. gave leave to appeal, ordered a stay of proceedings in the court below, and directed, inter alia, that an appeal bundle and skeleton arguments be filed, and the appeal be determined on paper by a single judge. The skeleton arguments were duly filed and the matter has been passed to me for...