Attorney General Appellant v Kenny D. Anthony Respondent [ECSC]

• Jurisdiction: St Lucia
• Judge: WEBSTER, J.A. [AG.],Justice of Appeal [Ag.],Justice of Appeal,Janice George-Creque,Davidson K. Baptiste
• Judgment Date: 14 June 2010
• Judgment citation (vLex): [2010] ECSC J0614-2
• Court: Court of Appeal (Saint Lucia)
• Docket Number: HCVAP 2009/031
• Date: 14 June 2010

[2010] ECSC J0614-2

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Janice George-Creque Justice of Appeal

The Hon. Mr. Davidson K. Baptiste Justice of Appeal [Ag.]

The Hon. Mr. Paul Webster, QC Justice of Appeal [Ag.]

HCVAP 2009/031

Between:

Attorney General

Appellant

and

Kenny D. Anthony

Respondent

Appearances:

Mr. Reginald T. A. Armour, SC for the appellant

Mr. Anthony Astaphan, SC, Mr. Peter I. Foster,

Ms. Renee St. Rose and Mr. Leslie Mondesir for the respondent

Civil Appeal – Judicial Review – Wednesbury unreasonableness – irrationality – bad faith – credibility of witnesses – non-disclosure by public officer – adverse inferences –

Tuxedo Villas is a hotel in Rodney Bay, locally owned and operated by Dr. Keith Mondesir who is also a Minister of Government and a member of the Cabinet of Ministers of Saint Lucia. Tuxedo Villas was granted duty free concessions in the past and on 19 ^th June 2007, Dr. Mondesir wrote to the Minister of Tourism, Mr. Allen Chastanet, applying for further concessions with regard to the refurbishment of the Villas. The application letter stated that Tuxedo Villas comprise: "(1) six two bedroom villas; (2) four one bedroom villas; (3) one restaurant at Rodney Bay; and (4) a three bedroom villa at Bonne Terre Rodney Bay". The Deputy Permanent Secretary in the Ministry prepared a memorandum for the Cabinet to consider the application. Mr. Chastanet signed the memorandum based on the discussions he had had with Dr. Mondesir which he conceded did not include anything about a house at Bonne Terre. The Cabinet of Ministers met on 5 ^th July 2007, and made a decision granting import duty exemptions and other concessions to Tuxedo Villas. Acting under this decision Dr. Mondesir imported certain goods and electronic equipment. Some of these goods were off loaded at a house in Bonne Terre which is a residential area outside Rodney Bay. As a result the Comptroller of Customs launched an investigation into the matter. Dr. Mondesir met with the Comptroller and explained that the house at Bonne Terre was in fact part of Tuxedo Villas. He also met with Mr. Chastanet and showed him documents supporting his position. The Minister advised Dr. Mondesir to meet with the Comptroller and present his case. The Comptroller was not satisfied with Dr. Mondesir's explanation and asked him for proof that the Bonne Terre house was a part of Tuxedo Villas. This was not forthcoming and on 26 ^th June 2008, the Comptroller wrote to Dr. Mondesir demanding proof of his claim by 4 ^th July 2008, by way of a confirmatory letter from the Ministry of Tourism, failing which he would proceed with the appropriate action under the Customs Laws. Mr. Chastanet prepared a note for another Minister to bring up the issue with Cabinet at its next meeting because he was going to be out of state. The Cabinet meeting was held on 26 ^th June 2008, and a decision was made noting that the house at Bonne Terre was part of Tuxedo Villas ("the Second Cabinet Decision"). When the Comptroller was informed of this he wrote to the appellant asking him for advice on the validity of the Second Cabinet Decision. The appellant investigated the matter by interviewing Dr. Mondesir and advised the Comptroller on 13 ^th August 2008, that the Second Cabinet Decision was a proper one. The respondent applied for Judicial Review of the Second Cabinet Decision on the grounds that it was irrational in the Wednesbury sense and/or made in bad faith for an improper purpose. The trial judge quashed the Second Cabinet Decision as having been made without any reasonable basis. The appellant appealed the trial judge's decision and the respondent counter-appealed contending that the trial judge should have quashed the Second Cabinet Decision on the additional ground that is was made in bad faith.

Held: dismissing the appeal and allowing the counter-appeal and awarding costs to the respondent on the appeal and counter-appeal:

• 1. That the Second Cabinet Decision was irrational in the Wednesbury sense in that it was so unreasonable that no reasonable Cabinet should have made it.

  Civil Services Unions v Minister of Civil Service [1985] AC 374 and Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 223 applied.

• 2. That the finding that the Minister of Tourism is a credible and reliable witness is set aside and this Court is in as good a position as the trial judge to evaluate the Minister's evidence and draw its own inferences.

  Coghlan v Cumberland [1898] 1 Ch. 704 , Watt (or Thomas) v Thomas [1947] AC 484 applied and Golfview Development Ltd v St. Kitts Development Corporation and Michael Simanic Civ. App. No. 17 of 2004 at para. 23 followed.

• 3. That the disclosure of documents by the appellant was unsatisfactory leading the court to draw adverse inferences regarding the reasons for the Second Cabinet Decision.

• 4. The Second Cabinet Decision is quashed on the additional ground that it was made in bad faith for the improper purposes of shielding Dr. Mondesir from further investigation and possible prosecution for breaches of the Customs Laws.

WEBSTER, J.A. [AG.]

1 On 5 ^th July 2007, the Cabinet of Saint Lucia issued Cabinet Conclusion No. 543 of 2007 granting relief from import duties and consumption taxes to Dr. Keith Mondesir, a Minister of the Cabinet, in respect of a Tourism Product known as Tuxedo Villas ("the First Cabinet Decision"). On 26 ^th June 2008, Cabinet issued Cabinet Conclusion No. 574(c) of 2008 effectively amending the First Cabinet Decision by noting that Tuxedo Villas include one 3-bedroom 3 bathroom villa at Bonne Terre ("the Second Cabinet Decision"). On 3 ^rd August 2009, the trial judge, the Hon. Brian Cottle, quashed the Second Cabinet Decision on the ground of Wednesbury unreasonableness. The Attorney General appealed against the decision and Leader of the Opposition filed a Counter Notice contending that the trial judge should have quashed the Second Decision on the additional ground that it was made in bad faith.

Background

2 Dr. Keith Mondesir is the Minister of Health in the Government of Saint Lucia and the owner of Tuxedo Villas located at Rodney Bay, Saint Lucia. He is also the owner of a three bedroom three bathroom house at Bonne Terre which is a residential area some distance away from Rodney Bay. He claims that the house at Bonne Terre is a part of Tuxedo Villas.

3 On 19 ^th June 2007, Dr. Mondesir wrote the Minister of Tourism and Civil Aviation, Mr. Allen Chastanet, applying for duty free concessions in respect of the refurbishment of Tuxedo Villas comprising the following:

"- Six two bedroom villas

- Four one bedroom villas

- One Restaurant at Rodney Bay; and

- A three bedroom villa at Bonne Terre Rodney Bay"

("the Application Letter")

4 Upon receipt of the Application Letter the Ministry of Tourism prepared a Memorandum to Cabinet outlining the terms of the application ("the Memorandum"). The relevant parts of the Memorandum are –

" Ministry of Tourism and Civil Aviation Memorandum to Cabinet

Application by Tuxedo Villas for Duty Free Concessions under the Tourism Incentives Act, No. 7 of 1996 to facilitate refurbishment

1.0 Proposal

Cabinet is invited to consider, pursuant to the Tourism Incentives Act, No. 7 of 1996, the award of duty free concessions to Tuxedo Villas for the purpose of refurbishing and upgrading its tourism product.

2.0 Background

Tuxedo Villas is a six (6) 2 bedroom and four (4) 1 bedroom hotel that is locally owned and operated by Dr. Keith Mondesir. The property has been in operation for over ten (10) years and has an average Annual Occupancy Percentage of 50%.

2.1 Tuxedo Villas has been granted duty free concessions in the past, however, the concessions have expired and the applicant is now desirous of upgrading its product offering. The product comprises:

a conferencing facility.

self-contained units.

a store room.

a restaurant and bar facility.

laundry facilities.

5.0 Incentives Sought

The applicant has approached the Ministry of Tourism and Civil Aviation for duty free concessions and as such is requesting the following:

5.1 100% waiver of Import Duty and Consumption Tax on all furniture, fittings and equipment needed for the renovation of the property to include the restaurant and bar and conferencing facility.

6.0 Comment/Analysis

Tuxedo Villas has a waterfront location. Consequently, there is increased exposure from sea blast thus leading to quicker deterioration of its appliances and equipment. This warrants the constant need to refurbish and replace key equipment to ensure it meets the standards of accommodation of the food and beverage sectors at all times."

5 The Memorandum was prepared by the Deputy Permanent Secretary in the Ministry of Tourism and signed by Mr. Chastanet in his capacity as the Minister of Tourism. Mr. Chastanet gave evidence at the trial. He said that he signed the Memorandum based on discussions he had had with Dr. Mondesir, and that at the time he had not seen the Application Letter. He admitted in cross examination that the Bonne Terre house was not a part of his discussions with Dr. Mondesir, and that it was not on his mind when he signed the Memorandum. Regardless of what Dr. Mondesir intended by including the reference to the house at Bonne Terre in the Application Letter, neither the Minister of Tourism nor the Deputy Permanent Secretary, who prepared the Memorandum, thought that the house was a part of Tuxedo Villas. In fact the evidence is overwhelming that Tuxedo Villas and the house at Bonne Terre are two separate properties, and the latter was not regarded as a part of the former. Apart from Dr. Mondesir himself, no other person who gave evidence at the trial thought that the Bonne Terre house was a part of Tuxedo Villas.

6 The First Cabinet Decision was published as Statutory Instrument No. 11 of 2008 thereby making Tuxedo Villas...