The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunememedia.net

A JUDGE yesterday determined that there were no reasonable prospects for success of Prime Minister Perry Christie’s appeal to the country’s second highest court concerning a recusal application she rejected which asked for her to step aside in hearing an ongoing judicial review.

That review is probing allegations that Lyford Cay resident Peter Nygard illegally increased the size of his property while awaiting an approval of her application to extend her tenure as a Supreme Court judge.

On Tuesday, Justice Rhonda Bain had refused leave to contest her February 6 decision to the Court of Appeal and indicated that she would provide her reasons, in writing, for the refusal within 24 hours.

Yesterday, the judge handed down a 17-page judgment explaining her discretion to refuse leave to appeal.

The prime minister’s application seeking leave to contest the February 6 decision was made on six “draft grounds of appeal”.

It was argued that the judge was wrong in law and in fact to not recuse herself after receiving a letter from Mr Christie’s counsel concerning the facts and law where the requisite test for recusal was made out.

It was also proposed that the judge was wrong to come to the conclusion that a recusal was not warranted in the circumstances.

The judge was also alleged to have been wrong in determining that she could not continue hearing the aforementioned “part heard” committal proceedings if she had recused herself.

It was also proposed that the judge misdirected herself on the law and failed to properly access the application.

It is fifthly proposed that there was a real danger of bias in the declaration of the ruling that there was a motive to not have the judicial review heard.

It was lastly proposed that notwithstanding the prime minister’s delay in making the recusal application, the judge had a responsibility to do so of her own volition.

Justice Bain, in her ruling yesterday, said that the first five draft grounds did not specify any erring or misdirection in law or fact concerning her ruling rendered on February 6.

On the sixth argument, Justice Bain said: “There is no realistic prospect of the intended appellant in succeeding on this ground.”

“In his submission, counsel for the intended appellant submitted that the appeal raises questions of great public interest and therefore the court should grant leave. The intended appellant did not raise the issue of an appeal in the public interest as a ground of appeal,” the judge added.

Justice Bain further reasoned that the “court has to consider the particulars of each case before making a determination whether to grant leave to appeal.”

She noted that this case was different from the referenced case of Melidor “which dealt with the discovery of documents from government ministries and departments, a matter that had not been pronounced on by the court of appeal.”

“The question of recusal of a judge is not a novel application and has been raised before in matters before the Court of Appeal. Additionally, the matter of public interest has not been raised by the intended appellant as a ground of appeal.”

“The grant of leave to appeal is discretionary and the court must take all the factors into consideration. After reviewing the proposed grounds of appeal, the court finds that there is no realistic prospect of success. The application for leave to appeal is dismissed.”

“As the court has refused leave to appeal, the application for stay of proceedings will fall away” the judge added, before awarding costs against the first respondent – the prime minister – for the unsuccessful application.”

With the 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 had 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.

Nygard’s first committal matter was completed on Tuesday 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 paid the fine on Tuesday, according to a spokesperson, and plans to appeal the ruling.

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.