The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A leading Bahamian law firm is seeking permission to appeal to the Privy Council on the grounds that Customs “had not abandoned” its position that Freeport ‘bonded goods letter’ renewals were conditional on prior year sales reports being filed with it.

Callenders & Co, in its October 15, 2013, motion seeking the Court of Appeal’s leave to appeal to the Privy Council, argued that allowing its Judicial Review action to proceed would “serve a useful purpose in clarifying the rights and obligations of licensees of the Grand Bahama Port Authority”.

The law firm, and Fred Smith QC, are appealing the Court of Appeal’s 2-1 majority decision to uphold Supreme Court Justice Estelle Gray-Evans decision not to grant them leave to bring Judicial Review proceedings.

Callenders had initiated Judicial Review proceedings over Customs’ bid to make the annual renewal of its ‘bonded’ goods permission contingent on filing a report on its ‘bonded’ goods purchases from the previous year.

In their majority decision, Appeal Court president Anita Allen and Justice Neville Adderley found that because Customs ultimately rescinded its bid to link renewal of Callender’s ‘bonded’ letter to a report on its duty-free purchases from the previous year, “there was no longer a decision for which Judicial Review could be undertaken”.

They found that no right of Callender’s was “being breached or threatened at that stage”, making its demand for Judicial Review a ‘hypothetical case’ that the courts will not touch.

And Callender’s challenge to Customs’ second decision, that it could apply to it for permission every time the law firm sought to purchase ‘bonded’ goods, was dismissed because such a practice had been in effect for more than a decade.

Describing Callender’s challenge on this count as “fatally out of time”, Justice Adderley wrote in his judgment that it “would be a waste of the court’s time to pursue it”.

“Having gone so long unchallenged, public policy requires the alternative procedure of obtaining individual approval from the Comptroller in the absence of an over-the-counter letter to be accepted in law as a valid decision, or at the very least the appellant is estopped from challenging it,” Justice Adderley wrote.

But in his dissenting judgment, Justice Conteh questioned whether Customs’ seeming pull back in its January 16, 2012, letter ‘effectively rescinds’ the issues at the heart of the Judicial Review action.

And he pointed out that it did not resolve the compensation/refund likely due to Callender’s after it was forced to pay duty on items used in its business for six weeks.

Justice Conteh said that while Customs may have reversed its position on granting Callender’s its ‘over-the-counter’ bonded goods letter, it was still insisting the law firm complete a report on its 2011 bonded goods purchases.

“The so-called recission of [Customs] position regarding the over-the-counter letter did not, it is clear, sweep away the important matters raised in [Callender’s] application as a whole,” Justice Conteh said.

Arguing that the Supreme Court had been mistaken to refuse leave to bring Judicial Review, Justice Conteh said the issues raised “cry out for determination” by the courts, given that they go to the heart of GBPA licensee rights and Customs’ powers in relation to Freeport.

Echoing the issues raised by Justice Conteh, Callenders’ October 15 filing argues that “the Comptroller [of Customs] “had nor abandoned the position he took” over the agency’s original demands.

“The Comptroller’s letters of January 16, 2012, do not read like an unequivocal retraction of the Comptroller’s position,” Callenders alleges.

It also argued that the Supreme Court placed too much weight on promises by then-Prime Minister Hubert Ingraham to create a committee to deal with Customs-related issues in Freeport, and did not account for the compensation due to it.

The motion also disagreed with the Court of Appeal decision, arguing that the case dealt with “a pattern of repeated unlawful behaviour by the Comptroller” that he was threatening to continue.