| Return to Contents Administrative Appeals: A Hearing De Novo? Gillian Robinson The recent decision in Bernard v the Constable of St. ment [1] appears to have completed the gradual movement of the Royal Court (endorsed by the Court of Appeal) towards its substituting itself for the decision-making body whose decision it is reviewing. The purpose of this article is to examine the development of this movement and to consider its effect. Mr Bernard was aggrieved by the Constable’s decision to remove from his firearm certificate his authority to possess a Royal Ordnance Arwen 37 and 100 37 mm baton rounds. He appealed to the Court under Article 4(8) of the Firearms (Jersey) Law, 1956, (as amended) which provides:- "Any person aggrieved by a refusal of a Constable to grant him a certificate under this Article or to vary or renew a firearm certificate, or by the revocation of a firearm certificate under sub-paragraph (a) of paragraph (7) of this Article, may, within twenty-eight days after the day on which he has received notice of the decision of the Constable, appeal to the Inferior Number of the Royal Court, the decision of which shall be final and without appeal, but without prejudice to the right of the Inferior Number of the Royal Court to refer the matter to the Superior Number of the Royal Court.". At the beginning of his judgment, Crill, Commissioner, referred to earlier cases where the nature of the Court’s powers had been considered and stated: "The first matter which we have to consider is thpe of an appeal of this sort. Were it not for the Court of Appeal’s decision in Fairview Farm Ltd v IDC [2] we might have been constrained by the decision of this Court in Mesch v Housmmittee [3] and Steven v Cable of St. Saviour [4] . As it is, we have felt able to work out thematter de novo. Although this is the only reference in the judgment to the nature of the Court’s jurisdiction on an appeal under the Firearms (Jersey) Law 1956 it is clear from the context of the oral argument and of the judgment that the Court did not hesitate to decide that it could consider the matter de novo. This decision notwithstanding the comments of the Court of Appeal in Housing Committee v Phantesie Investments Limited [5] (as to which see below) that the scope of an appeal such as this was "a very serious question" which would need careful consideration, and the fact that in Mesch the position was considered very fully and an opposite conclusion reached. Furthermore, in the Bernard case, the Court specified no limit as to the circumstances in which it could hear the matter de novo, thus purporting to increase its jurisdiction substantially beyond that which had been assumed in the earlier cases. The Bernard decision has moved the boundaries a long way from Mesch in which, incidentally, the same judge was presiding. Mr. and Mrs. Mesch had appealed against the Housing Committee’s refusal to delete a condition which it had attached to the use of property which they proposed to buy. The appeal was brought under Article 12 of the Housing (Jersey) Law, 1949 which provides: "(1) Any person aggrieved by the refusal of the Committee to grant consent to any transaction to which this Part of this Law applies or by any conditions attached to any such consent or by the revocation of any such consent may appeal to the Court against the decision of the Committee within one month after the date on which notice of such decision was sent to him; (2) On any such appeal, the Court may either dismiss the appeal or may give to the Committee such direction in the matter as it considers proper, and the Committee shall comply with any such direction." The wording in sub-paragraph (1) is very similar to that contained in the Firearms Law. In Bernard the Royal Court considered the meaning of the words "may appeal". It examined in detail the Phantesie case which discussed the nature of an appeal under Article 12 of the Housing Law. In Phantesie, the Court of Appeal noted that the Royal Court, at first instance, when reviewing a condition imposed by the Housing Committee, had come to the view that "the condition imposed was so unreasonable that it was not one that could have been imposed by any committee acting reasonably and properly directing itself." On that basis, the Court of Appeal stated that there was no need to examine the question raised by counsel for the respondent as to the scope of an appeal under that provision. Nevertheless, it recognised that the crucial words were "may appeal". It pointed out that the English authorities which had been cited stated that the words gave the Court the power to hold a de novo hearing. In contrast, it was Canadian cases on appeal to the Privy Council which gave a more restrictive interpretation. In Mesch, the Royal Court took up the train iry which had been commenced in Phantesie. It reviewed English and Canadian authorities but based a part of its judgment on the Australian case of Minister for Aboriginal Affairs v Peko Wallsend Limited [6] and an extract from the judgment of Dawson J. was quoted: "......But it is in accordance with well-recognised practice that it will only exercise its jurisdiction for such a purpose [the reversal of a discretionary judgment] where there has been some identified error or manifest injustice in the exercise of the discretion. The real reason for the practice is that there can be no justification for the mere substitution of one discretion for another and that reason applies equally whether an exercise of the discretion is by a judge at first instance or by an appellate court." Having conducted this review of the cases, the Royal Court in Mesch concluded as follows: "......We would not like the Royal Court to be deprived of the right to hear fresh evidence on an appeal from a decision of an administrative body where the right of appeal, as in the instant case, appears to be unfettered by the words conferring a right of appeal. Accordingly, we find, as a matter of law, that the Royal Court has the power to reverse a discretionary decision of an administrative body where the appellate provisions are as wide as those in the Housing (Jersey) Law, 1949, which would allow it to hear fresh evidence or decide on any disputed fact. That power, however, is not unfettered but must be exercised, as Dawson J said in the Peko-Wallsend case " where there can be some identified error or manifest injustice in the exercise of [the administrative body’s] decision". Our decision might have meant that but for the subsequent dilution of the restrictive approach of the Royal Court in earlier cases by subsequent decisions we might have felt obliged to rule that earlier decisions were wrong. We would have been reluctant to do this particularly in the the careful analysis of the cases in Habin v Gambling Authority [7] to which the Court of Appeal in Phantesie referred. If a decision is such that no Committee properly directed could reasonably have made it and is contrary to justice and common sense, it must follow that the decision is wrong should be struck down". [8] Having enunciated the test, the Court applied it to the facts and found that there were grounds for setting aside the Committee’s decision. It thus remitted the matter to the Committee with directions as to the form in which the consent should be given. The Court also noted that the outcome would have been the same if it had been decided "de novo" - its decision in this instance therefore making no substantive difference to the remedy obtained by the appellants. In Bernard, the Royal Court also considered the ca Steven v Constable of St Saviour [9] which was another appeal under the Firearms Law, and over which the same judge also presided. In that case, the Court referred to Mesch and said that it must ask three questions: Was the decision one which the Constable had the power to make? Were the proceedings in general fair and satisfactory? Was the decision one to which the Constable could reasonably have come? The Court answered the first question in the affirmative and the second two in the negative. On this basis, the Court remitted the matter to the Constable for re-consideration of that part of his decision with which the Court disagreed. This was an application of the test established by Lord Greene MR, in the well-known case sociated Provincial Picture Houses Limited v Wednesbury Corporation [10] . The Court thereby left the ultimate decision to the Constable, although the directions were sufficiently clear as to leave the Constable in little doubt as to the decision which was expected of him. The case on which the Court relied in Bernard for its view that it could deal with the matter de novo was that of Fairview Farm. That case concerned an appeal under Article 21 of the Island Planning (Jersey) Law, 1964 against the imposition of a condition on a development permission. That Article provides: "Any person aggrieved by the refusal of the Committee to grant permission under Article 6 of this Law, or by any condition attached to the grant of any such permission ....... may appeal ............ to the Royal Court .............. on the ground that the decision of the Committee ........... was unreasonable, having regard to all the circumstances of the case." That wording is rather more restrictive than the equivalent appeal provisions of either the Housing or the Firearms Laws, as the Royal Court is restricted to assessing whether or not the decision of the Committee was unreasonable in all the circumstances of the case. The Court of Appeal considered the scope of the prons of Article 21, which had been discussed in Taylor v Island Development Committee [11], and which were there stated to be limited by the Wednesbury principles - set out in Steven above. In particular it reviewed the distinction between a judicial review jurisdiction (Wednesbury) and the jurisdiction to be exercised when an appellant exercises a statutory right of appeal. The latter jurisdiction will clearly depend on the terms of the statute which creates it. The Court of Appeal concluded: "In our judgment, therefore, the statement of Royal Court in paragraph (3) on page 1280 of Taylor v IDC was wrong. The duty of the Court on an appeal under Article 21 is not merely to consider whether any reasonable body could have reached the decision which the Committee did reach, but to decide whether the Court considers that that decision was, in its view, unreasonable." [12] The use of the word "unreasonable" is presumably a reflection of its use in the Island Planning Law. The Court of Appeal then went on to decide whether, having found the Committee’s decision "unreasonable", it could itself make a decision which would be reasonable. The Court concluded that, unlike the English Court, it had the power to reach its own view of what a reasonable decision would be. Nevertheless, the Court of Appeal did not consider in that particular case it would be appropriate for it to frame the condition. This was because the decision would have to be reasonable in all the circumstances of the case and the Court did not consider itself sufficiently acquainted with all the facts to make such a decision. The case was therefore remitted to the Committee solely for the purpose of re-considering the question of the condition. It is interesting to note that neither the cases of Mesch nor Steven were considered by the Court of Appeal in Fairview Farm. In the Bernard case, the Court found that the Arwen 37 was a prohibited weapon under Article 9(1)(b) of the Firearms Law. The revocation of the firearm certificate would therefore remain. This was not, however, one of the reasons given by the Constable for the revocation of the licence. The Court substituted its decision for that of the Constable, using the power confirmed, but not exercised, by the Court of Appeal in Fairview Farm. Whilst it is acknowledged that for the "person aggrieved" it is quicker if the Court entertaining the appeal from the administrative body, (as noted by the Court of Appeal in Fairview Farm), substitutes itself as decision maker for the administrative body, the rôle of the former must come into question. The qualities which the members of an administrative body (many of whom are elected) may bring to it, each specialising in his own particular area, may be different from those of the Court, although it is accepted that the presence of Jurats will widen the Royal Court’s perspective. It may be argued that the Court by the Bernard decision is extending its jurisdiction at the expense of the various administrative bodies throughout the Island. However, given the precise nature of the directions which are often given by the Court, when it declines to make the decision, but remits it to the administrative body for reconsideration, it may well be that in practice in most cases, the apparent expansion of the Court’s jurisdiction is merely an affirmation of the jurisdiction it had previously exercised over administrative bodies through the making of directions. Gillian Robinson is a solicitor admitted to practise in England and Wales, and in Hong Kong. She is employed in the litigation department of Bailhache Labesse, 14/16 Hill Street, St.Helier, Jersey. |