Thomas W. Buffonge v The Deputy Governor et al

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IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
COLONY OF MONTSERRAT
(CIVIL)
A.D 2014
CLAIM NO. MNIHCV2013/0031
BETWEEN:
APPEARANCES:
THOMAS WINSTON BUFFONGE
and
THE DEPUTY GOVERNOR
THE HON. ATTORNEY GENERAL
Mr. Sylvester Carrott for the Applicant
Ms Cilma Wade for the Respondents
2014: January 13
2014: January 27,
JUDGMENT
Claimant
Defendants
(I) REDHEAD J (ag) The applicant Mr. Thomas Winston Buffonge has
made an application for Judicial Review filed on 10th December 2013 in
which he seeks the following reliefs:
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(i) A declaration that the said Thomas Winston Buffonge is entitled to be
paid a pension in accordance with the Pensions Act.
(ii) An Order of mandamus requiring the Respondents to pay according to
law the Applicant’s past and current pension with interest upon past
payments at the rate of 10% per annum or such rate as the honourable
court shall consider fit and proper.
(iii)Interim Relief by way of an order that the Respondents do forthwith pay
to the Applicant the sum of EC$50,000.00 on account of the pension
entitlement alternatively that the Respondent do within 14 days of the
grant of Leave commence payments of the Applicant’s current pension
entitlement.
(iv)An interim Order that the Respondents do forthwith disclose all
documents in their possession relating to the Applicant’s employment
with the Government of Montserrat between the years 1959 and 1987
including any instruction by any officer that the Applicant’s pension
should be paid.
(v) In so far as the Respondents have made any decision that the Applicant is
not entitled to his pension, an order of Certiorari quashing the same.
(vi)Damages for breach of statutory duty.
[2) The Applicant is now 70 years old. He would have been born on 14th
March 1943. He worked in various departments of government from 1964
beginning as a Clerk in the Department of Labour ending up as Manager in
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1975 as Manager of Montserrat Industrial Enterprises (MEIL). The Applicant
has had many years of agreed unpaid study leave from 1980.
[3] On September 12, 1986 the Applicant wrote to the Permanent Secretary
Administration inter alia:
“Dear Madam
Will you kindly refer to your letter ME 698 of April 24th “No Pay Study
Leave … ”
I understand that government would make study loans available to
interested Montserratians pursing educational programme abroad. If
this is so, I would like to be considered for such a loan. If not then I
request that my study leave be extended for a further period to
December 31, 1988 …..
If neither the above are [sic] acceptable, I would like to enter into
discussion with you regarding early retirement from the service as
indicated in your letter under reference …
Sincerely
Thomas W. Bufonge”
[4] There was a response to this letter from the Permanent Secretary in which
she said in part as follows:
“Dear Mr. Buffonge
Your letter dated September 12 refers.
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Government requested that you produce definite evidence from the
School or University you are attending to show that you will complete
your degree programme within four (4) years. In the absence of this
evidence, your alternate option is to consider early retirement ….. ”
[5] I make the observation that this is the second occasion that the Applicant
was offered early retirement.
On 21 st February 1987 the Applicant responded in the following terms:
“Permanent Secretary
Department of Administration
Government Headquarters
Plymouth Montserrat
Dear Miss Meade
Following discussion with the Permanent Secretary, Development and
the Personnel Office during my visit to Montserrat on January 6, 1987, I
have decided to take an early retirement from the service. I therefore
ask that this letter be considered as my formal request for early
retirement from the Civil Service ….
Thomas Buffonge”
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[6] In my considered opinion on the face of it, it appears to me from the
correspondence referred to above that the authorities offered the Applicant
early retirement which he accepted. However in additional submissions by
learned Counsel Ms Wade, she argued that the Department of Administration
sent a letter to the Applicant on 30th October 1986, requesting that the
Applicant produce evidence from the University he was attending and in the
absence of the evidence to consider early retirement. Ms Wade further argued
that when the letter was sent, giving the Applicant a deadline of 30
November 1986 in which to respond and indicating that in default his
employment would be deemed to have been terminated. Ms Wade contends
that the Applicant failed to respond within the time stipulated in the letter.
The Applicant’s employment would therefore have been deemed to have
been terminated on December 01 , 1986. In support of this contention Ms
Wade referred to the Public Service Regulations 31 (1)1 which stipulates:
“An Officer who is absent from duty without leave for a continuous
period of one month unless declared othenvise by the Governor, shall be
deemed to have resigned his office and thereupon the office becomes
vacant and the Officer ceases to be an Officer”.
[7] I refer in part to the correspondence from the Permanent Secretary
Administration of 30lh October 1986: “If no answer is received from you by
30 November, 1986, we will have no alternative but to terminate your
employment” .
I Public Service Regulation 1980
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[8] I make the observation that the sentence referred to above does not
indicate to the Applicant that in default of responding to the letter from the
Permanent Secretary by the 30th November 1986 his appointment would be
terminated. What the letter said is that if no reply was received by 30th
November 1986 we will have no alternative but to terminate your
appointment. It is a fact that the Applicant did not respond to the letter until
February 21 , 1987.
[9] There is no documentary evidence to show that the Applicant’s
employment was terminated. The Applicant’s file is missing; this
complicates the issues in this case. The Applicant’s file was in the custody of
the Government of Montserrat as it should have been but I am told it cannot
be found. Moreover, Mrs. Theodora Veronica Walker, a retired Civil Servant
who was assistant to the Permanent Secretary of Administration during the
relevant time the Applicant was employed in the Civil Service of Montserrat,
in an affidavit (paragraph 5) swore that she is not aware the Applicant’s
employment had been terminated.
Mrs. Walker further swore:
“I see that 1 myself was engaged in correspondence concerning his
[Applicant’s] pension contributions with another department in 1987. 1
can say that I would not have been instructed to write such
correspondence concerning his pension contributions unless the
Applicant had indeed been granted early retirement.”
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[10] Learned Counsel Ms Wade argues in her Skeleton Submissions that the
affidavit of Mrs. Theodora Veronica Walker should not be admitted in
evidence because it was sworn before Ms Marcelle Watts, Barrister-at-Law
and who is an agent of Mr. Sylvester Carrott, Counsel for the Applicant.
In support of this argument Ms Wade refers to Part 30.5 (3i which
mandates: “an affidavit may not be admitted into evidence if sworn or
affirmed before the legal practitioner of the party on whose behalf it is to
be used or before any agent employed or associate of such legal
practitioner”. In my opinion, this argument is misconceived because the
affidavit is not to be used on behalf of Mr. Carrott.
[II] Ms Wade in her written submission contends that when, on 21 st
February 1987 the Applicant made a request for early retirement, his services
with the Goverrunent of Montserrat would have already been terminated as
he was deemed to have resigned and thus ceased to be an Officer. Ms Wade
argues that consequently the issue of grant of pension does not arise.
[12] This submission is predicated on the assumption that the Applicant
resigned / abandoned his employment on 1st December 1986. Miss Wade
further argues that even if the Applicant was granted early retirement he
2 Civil Procedure Rule 2000
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would not have been qualified for a pensIOn under the Pension Ace to
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receIve a pensIOn.
[13] In an affidavit sworn by Mrs. Daphne Cassell the present Chief Human
Resource Officer at paragraph 27 she deposes:
“By letter dated 21st September 2000, the Department of Administration
wrote to the Applicant stating that there were no legal grounds on which
payment of any benefit could be supported and the matter is now
closed … ”
[14] Learned Counsel argues on behalf of the defendants that the cause of
action arose then, i.e on 21 st September 2000, some thirteen years ago. Miss
Wade contends that to make an application for Judicial Review now would
be defeated by unreasonable delay.
[15] Mr. Carrot learned Counsel for the Applicant on the other hand contends
that the cause of action did not arise in 2000 but rather in 2013 after the
current Attorney General’s letter.
On 14th June, 2013 the Honourable Attorney General wrote to Mr. Kelsick in
the following terms:
3 Pensions Act Chapter 48 Section 6( I lea)
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“Dear Mr. Kelsick,
Re: Claim for Pension – Thomas Buffonge
Please refer to correspondence exchanged between us on the above
referenced and my letter of June 6, 2013. Since writing that recent letter
to you, we have had a response from the Human Resource Management
Unit. They were unable to advance this case further than previously
communicated to your Client. In the circumstances I regret to inform
you that there is no material on which we can advise that there is a legal
basis to accede to your client’s request for pension benefits under the
Pensions Act”.
[16] Mr. Carrott argues that the decision of 21 51 September 2000 no longer
exists, it is gone, they have reconsidered the matter. Learned Counsel on
behalf of the Applicant contends that fresh evidence was presented since
2000 and was considered by Respondents, as they had the right to do (See R
v Sheffield City Council ex Parte Leeke)4.
[17] In a letter from the Department of Administration to Mr. Emmanuel
Irish (Applicant’s Lawyer) dated 1 st December 2009, the Acting Permanent
Secretary referred to a letter of October 20, 2008. The Permanent Secretary
(ag) then indicated to the Applicant’s Lawyer that by their letter of January
2003 there existed no evidence upon which an award of pension could have
been made. He pointed out that the Applicant’s letter of 21 51 February 1987
4 (1999) 2 ALR 669
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advanced the matter no further as it was merely a request for early retirement
which did not establish that it was in fact granted.
[18] I make the observation that if the request was made, in the ordinary
course of events, a reply should have been forthcoming. The Respondents
cannot produce any document to show that that request was denied because
the Applicant’s file is missing.
[19] In a letter dated 24th June 2011, the Applicant wrote to the Honourable
Attorney General in the following terms inter alia:
“Dear Sir
… 1 have been in constant contact with the Department of
Administration throughout the years and the file went missing only after
1 made a formal request for early retirement. At that time, people with
twenty (20) or more years of service were entitled to early retirement. By
then, 1 had served the Government of Montserrat in various capacities
for over 29 years culminating with an appointment as Assistant
Permanent Secretary (supernumerary Administration) before 1 came
abroad on Government approved study leave in 1980 … 1 have had
numerous correspondences from Administration stating that the matter
of my pension is closed. 1 am hereby requesting that the matter be
reopened and that it be properly reviewed so that my pension can be
settled without prejudice.
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Sincerely
Thomas Buffonge
Cc: Hon Reuben Meade
Chief Minister”
[20] On 2nd August 2011 the Hon. Attorney General wrote yet again to the
Applicant saying inter alia:
“Dear Mr. Buffonge
Your recent letter has not added any new matter for consideration
which would justify re-opening this matter for example there is no
information as to the dates for which Study leave was approved. Was
Study leave approved? When? When did the approved course come to
an end? In all the circumstances, I must remind you that the matter is
closed. There is no legal basis on which I can advise the Government of
Montserrat to re-open this case.
Sincerely Yours
Esco L. Henry
Hon. Attorney General
Cc: Hon. Chief Minister.”
[21] In my considered opmlOn, all the quenes raised in the above
correspondence could have been answered had not the Applicant’s file gone
mlssmg.
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In response to the letter of 2nd August 2011 the Applicant again wrote to the
Honourable Attorney General. On 7’h September 20 II inter alia:
“Dear Ms Henry
I have been in contact witb several Permanent Secretaries of Manpower
and other GOM Officials and have sent numerous copies of the letters
and documents of approval sent to me over the years, in an effort to help
the Department of Manpower and Administration to rebuild the lost file.
I feel I have done my part and that the onus is on the Department of
Manpower to do their part.
I began writing to GOM in 1959 and entered the Civil Service in 1964
where I remained a Civil Servant until 1987 when I applied for early
retirement.
I am asking that the matter be re-opened with a view to reach a
conclusion that is fair to me. I am willing to send more of what I have
available if you think it necessary that I do so.
Sincerely
Thomas W. Buffonge”
[22] On 23’d September 2011, the Honourable Attorney General replied to
the Applicant’s letter of7’h September 2011 saying inter alia:
“Dear Mr. Buffonge …..
I note that paragraph 3 states that further study leave without pay will
be considered on an annual basis. Kindly provide the approvals for no
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pay Study leave for the period December 6, 1981 through February 20,
1987 .. . 1 will once again remind you that the matter is closed and you are
yet to provide cause [sic] why this case should be reopened.
Sincerely Yours,
Esco Henry
Hon. Attorney General”
[23] On 27th October 2011, Mr. Thomas Buffonge in response to the Hon.
Attorney General’s letter of 23rd September 2011 told the Hon. Attorney
General that he had found enough (13 pieces) of documents which he
enclosed to her. Mr. Buffonge also pointed out that in a letter dated 30th
October 1986, The Permanent Secretary Administration gave him the option
to take early retirement. He said that after several telephone conversations in
November and on a visit to Montserrat in December 1986, he opted for early
retirement and confirmed this in writing in January 1987. He also said that
various correspondences sent to him indicated that work was being done on
calculating his pension, then suddenly the process was inexplicably stopped
and when he raised the issue, he was told verbally and in writing that the file
was missing. He expressed the hope that these documents would be sufficient
to have the matter re-opened.
[24] Finally the Hon. Attorney General replied to Mr. Buffonge’s letter of
27th October, 2011. She said inter alia:
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“Dear Mr. Buffonge
… There is no evidence that you received further study leave after the
period [5th December 1984] you would therefore be deemed to have
resigned in the absence of further communication from you or approval
of further study leave.
Unless you can demonstrate that you received approval for no pay study
leave for the period December 6, 1981 through February 20, 1987 or that
you retired from the Public Service during that period, there is no legal
basis on which you can receive pension benefits.
Sincerely Yours
Esco Henry (Ms)
Hon. Attorney General”
[25] I have quoted and referred to all of the above to say that in my opinion
that after September 2000 fresh evidence was presented to the Defendants
and they considered that evidence. Even if they had not considered it, they
have a duty to do so. I am therefore in agreement with Mr. Carrotl’s
contention that the action did not arise in 2000 but rather on 14th June 2013
the date of the Hon Attorney General’s last letter to Mr. Kelsick.
[26] In my Judgment, I am of the view that Ms Wade correctly identified the
issues to be determined for leave to apply for judicial review: Except I would
say considered
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(i) In what circumstances was the Applicant’s employment with
Government of Montserrat (GOM) terminated – by abandonment or
early retirement?
(ii) On which date was the Applicant’s employment terminated? [If in
fact it was]
(iii) On what date did the course of action arise?
(iv) Whose decision is the Applicant seeking Judicial Review of?
(v) Whether there has been undue delay by the Applicant in seeking
redress from the Court through judicial review?
(vi) Whether leave for judicial review should be granted to the
Applicant.
[27] Mr. Carrot! learned Counsel for the Applicant is in agreement
with learned Counsel for the Respondents when he contends in his
submission that the central issue for the Court is the determination of
the precedent fact in issue namely: Did Mr. Buffonge abandon his
office? If he did, he is not entitled to a pension; if he did not abandon
his office then he is entitled to a pension.
[28] In a memorandum to Permanent Secretary Ministry of
Agriculture, Trade and the Environment from Permanent Secretary
Administration dated 7’h March 1994
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“PENSION CONTRIBUTION – MR. THOMAS W. BUFFONGE
The Permanent Secretary Administration wrote
Your Memo MATE4/2 – 111 dated 1st March 1994 on the above Subject
refers.
2. Please find enclosed various documents confirming Mr. Buffonge’s
Secondment to DFHC/MIEL.
3. Hon. Attorney General’s letter (copy attached) is quite explicit as to the
payment of Pension to Mr. Buffonge.
Your urgent attention in this matter is requested.
F.E Daley”
[29] My task at this stage is to make a determination whether the Applicant has
an arguable case. On the materials and submissions placed before me I have no
doubt that the Applicant has a strong arguable case. His application as I have
said above is not defeated by delay.
[30] Leave is therefore granted to the Applicant to make a Claim for Judicial
Review to be filed within 14 days of today’s date. I shall not grant the interim
reliefs and orders sought by the Applicant.
Costs to the Applicant to be agreed, if not agreed to be assessed on a Prescribed
Cost basis.
Albert J. Redhead
High Court Judge