The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

A FORMAL application has been lodged to the Court of Appeal seeking to overturn a decision of a judge who refused Prime Minister Perry Christie’s recusal application which 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.

A notice of motion for leave to appeal the February 6 ruling of Justice Rhonda Bain was filed to the Claughton House, Charlotte Street court on Wednesday and stamped by the court’s registry yesterday.

The application and its supporting affidavit, followed within hours of Justice Bain handing down a 17-page judgment explaining her discretion to refuse leave to appeal.

The motion is expected to be heard next Wednesday, The Tribune understands.

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 on Wednesday, 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 reasons 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 that 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.

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.