The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

A JUDGE yesterday refused leave to appeal her ruling on Prime Minister Perry Christie’s recusal application that argued that she, while awaiting an approval of her application to extend her tenure as a Supreme Court judge, cannot be perceived to be impartial in hearing an ongoing judicial review into allegations that Lyford Cay resident Peter Nygard illegally increased the size of his property.

Justice Rhonda Bain is expected to provide her reasons, in writing, for the refusal today when the matter is called at 10am.

With a judgment, the prime minister and his attorneys can review the ruling and determine whether they wish to proceed with a direct application to the Court of Appeal concerning the February 6 decision.

Attorneys for the prime minister filed a motion in the Supreme Court on January 26 asking that Justice Bain recuse herself from the judicial review - or any other cases in which he is a party - on the basis that she is set to attain the legal age for retirement in April.

She has an application for extension that would have to be authorised by the governor general on the advice of the prime minister in consultation with the leader of the Official Opposition.

The motion of recusal was filed by Mr Christie’s lawyers in his capacity as minister responsible for Crown land and was argued on January 30.

In a 40-page ruling handed down on February 6, Justice Bain reminded Mr Christie of the independence of the judiciary from the executive, stressing that cases are distributed by the chief justice – a role that cannot be “usurped by the prime minister.”

The judge also said the prime minister should have immediately filed a motion seeking her recusal if he had concerns, instead of choosing to “sit back and do nothing for upwards of seven months” while other Nygard matters were continuing in court.

“The application for extension of tenure by Bain J (Justice Bain) was made on June 6, 2016. The application for recusal of Bain J by the first respondent (Mr Christie), by reason of Bain J’s application for extension, was not made until January 26, 2017, upwards of seven months after the application for extension was made,” the judge noted previously.

“The prime minister in his capacity as minister responsible for Crown lands through his counsel continued to participate in these proceedings after the application for extension was made in June 2016. Since the application for an extension was made the court continued hearing the matters and has delivered eight rulings,” the judge’s ruling added.

Justice Bain also said that since applying for an extension of her tenure, “the court commenced the hearing of the Keod Smith and Derek Ryan contempt application on December 8, 2016” and Mr Nygard’s “first committal matter on October 3, 2016.”

Nygard’s first committal matter was completed yesterday with the Canadian fashion mogul being convicted of contempt of court by Justice Bain and fined $50,000 for breach of the Supreme Court’s order concerning illegal dredging near his property in Lyford Cay.

Nygard was given until March 21 to pay the fine or he will spend 14 days at the Department of Correctional Services in Fox Hill.

He was further ordered to remove the excavated sand from his property and return it to Jaws Beach by April 7. Failure to do so will result in an additional $50,000 and a $1,000 fine for each day this subsequent order is not carried out.

Wayne Munroe, QC, Clinton Clarke and Tommel Roker appeared for the prime minister in the recusal application and the ruling that was returned yesterday.

Fred Smith, QC, Romauld Ferreira, Dawson Malone and Perline Ingraham appeared for the Coalition to Protect Clifton Bay, now called Save the Bays.

John Minns and Roberts Adams are legal counsel for the Neighbours Action in this matter.