A veteran sport administrator George “Goatie” Robinson has won a near 10-year victory over the Grenada Olympic Committee (GOC) that was headed at the time by Royston La Hee.
Robinson who is from St Paul’s, St George’s took the sporting body to court several years ago after it took steps to block his application to become a member of the committee that is now headed by an acting Interim President Chenny Joseph who over the weekend lost the Presidency of the Grenada Football Association (GFA).
Female high court judge Agnes Actie in a ruling said that the La Hee outfit which included the controversial General Secretary, Veda Bruno-Victor failed to inform Robinson what are the matters that were being looked at “in taking its decision to refuse the application by the claimant to be admitted as an individual member” and that they “did not tell him what matters it was considering adversely to him.”
The judge also said that La Hee and his group also “failed to afford him (Robinson) an opportunity of a fair hearing on such matters, and thereby breached natural justice, and this rendered that decision unlawful, of no effect in law, null and void.”
She also concluded that the then GOC team should “consider properly according to law the application by the claimant to be admitted as an individual member of the defendant.”
As a public service, THE NEW TODAY reproduces the Justice Agnes Actie ruling against the local Olympic Committee.
JUDGMENT
[1] ACTIE, J.: This is a judicial review claim filed by the claimant concerning a decision made by the defendant in refusing the claimant’s application to become a member of the defendant.
Claimant’s case
[2] On 14th July 2014, Mohammed J granted leave for the claimant to apply for judicial review and accordingly in a fixed date claim form filed on 1st August 2014, the claimant claims the following reliefs:
(1) A declaration that the defendant in taking its decision to refuse the application by the claimant to be admitted as an individual member of the defendant acted unreasonably, irrationally, unfairly, unjustly, arbitrarily, discriminatorily, without regard to relevant considerations, on irrelevant considerations, and this rendered that decision unlawful, of no effect in law, null and void;
(2) A declaration that the defendant in taking its decision to refuse the application by George Robinson to be admitted as an individual member of the defendant did not tell him what matters it was considering adversely to him, failed to afford him an opportunity of a fair hearing on such matters, and thereby breached natural justice, and this rendered that decision unlawful, of no effect in law, null and void:
(3) An injunction to restrain the defendant from continuing to discriminate against the claimant;
(4) An order that the defendant consider properly according to law the application by the claimant to be admitted as an individual member of the defendant; and
(5) An order that the defendant grant the application by the claimant to be admitted as an individual member of the defendant.
[3] By affidavit sworn to on 1st August 2014, the claimant states that he is a long standing and active participant in the management of various aspects of Olympic sport in Grenada.
[4] The defendant is a non-profit company incorporated on 24th November 2009 pursuant to the Companies Act 1994 of the Laws of Grenada.
[5] The claimant avers that the defendant, with its principles of Olympism, conducts its decision making on applications for membership with a substantial public flavour. This, according to the claimant, is as a result of the influence of the Olympic Charter which places sport at the service of the harmonious development of human kind, and proclaims the practicing of sport a human right to be without discrimination of any kind.
[6] The claimant contends that the defendant is required by its Constitution to develop the Olympic movement in Grenada in accordance with the Olympic Charter of the International Olympic Committee. Further the claimant contends that the defendant is required by its Articles of Incorporation of 24th November 2009 to carry on business strictly of a sporting and athletic nature primarily to develop the Olympic Movement in Grenada in accordance with the Olympic Charter of the International Olympic Committee.
[7] The claimant states that the defendant in its constitution provides for various categories of its membership. Article 6 (6) of the defendant’s Constitution caters for having as its members “nationals liable to reinforce the effectiveness of the Committee, or who have rendered distinguished service to the cause of sport and Olympism”.
[8] The claimant avers that by September 2013 he had an outstanding career in sport and Olympism, thus he applied by letters of 1st September 2013 and 22nd November 2013 to become an individual member of the defendant pursuant to Article 6(6) aforesaid.
[9] The claimant contends that by letter of 28th April 2014 enclosing letter dated 9th December 2013, the defendant refused the application of the claimant’s membership. The claimant states that the defendant gave no reason for refusing to grant his application for membership, and denied him membership without affording him an opportunity fora fair hearing. The claimant avers that, thereby, the defendant breached the principles of natural justice.
[10] It is the claimant’s position therefore that the defendant wrongfully denied the membership, him being fit and proper person to be an individual member of the defendant.
[11] The claimant states that he does not know what the defendant took into account in refusing his application for membership. The claimant avers however that by virtue of its defence, the defendant took into account matters which it intended to use and indeed used adversely to him but did not afford him an opportunity to be heard.
Defendant’s case
[12] The defendant denies that the claimant’s application for individual membership was refused wrongfully and in breach of various aspects of the laws relating to decision making.
[13] The defendant avers that the referenced qualifications and experiences of the claimant do not by themselves render the claimant a fit and proper person to be admitted to membership of the defendant under Article 6(6) of the Constitution of the defendant.
[14] The defendant states that while the claimant may be eligible to be admitted, he did not apply for such membership having regard to his career in sport and Olympism as deposed. The defendant contends that the claimant applied for individual membership for the specific purpose of pursuing his campaign against the Board of Directors of the defendant from within the organisation, whose legitimacy he does not recognise and who he repeatedly publicly humiliates.
[15] The defendant denies that it adversely affected the claimant, that it acted unreasonably, irrationally, unfairly, arbitrarily, discriminatorily, without regard to relevant considerations or on irrelevant considerations. The defendant avers that although the letter of 9″ December 2013 neither gives reasons for refusal, nor indicates what it considered in refusing the claimant’s application for membership, those matters were notoriously known to the claimant in light of his conduct leading up to his application and its refusal. In refusing the claimant’s application, the defendant also considered that any response from it may have been published in the media.
[16] The defendant avers that prior to the defendant’s Special Quadrennial General Meeting for election of members of the Board of Directors scheduled to take place on 25th May 2013, the claimant was interviewed on national television announcing his intention to be a one-man protestor at the elections, and forecasted that it would be recorded as the “darkest day in the history of Sports Administration in Grenada’.
[17] The claimant was not present at said elections, but immediately thereafter he launched a public campaign to have the elections declared null and void. The defendant avers that in doing so, the claimant intended to and did succeeding causing damage to the reputation of the Board of Directors of the defendant.
[18] The defendant contends that on 2nd November 2013, a Special General Meeting of the defendant was held, and the matter of the claimant’s application for membership was raised in light of his recent public attacks on the defendant. By consensus, it was decided that the claimant should not be admitted to membership because his membership would be inimical to the wellbeing of the defendant. Members were of the view that the claimant’s conduct had injured the image of the defendant in the eyes of the general public.
[19] The defendant avers that the claimant exhibited a confrontational and publicly aggressive attitude to the Board of Directors of the Defendant long before he raised the issue of the validity of the 25th May 2013 elections.
[20] The defendant contends that the claimants not entitled to the reliefs sought in his claim. The defendant states that with respect to the injunctive relief claimed, the claimant failed to fully and frankly disclose to the court all the surrounding circumstances leading up to the rejection of his application for membership, including his public and confrontational challenge to the validity of the 25th May 2013 elections.
[21] The defendant states that it was of the view that because of all that transpired between the claimant and the defendant, it was not in its best interest to admit the claimant to membership at that time.
Legal Analysis
Whether the Defendant’s Decision is subject to Judicial Review
[22] During closing oral submissions, Ms. Claudette Joseph, counsel for the defendant, sought to introduce the argument of the defendant’s lack of susceptibility to judicial review. The said argument, admittedly by Counsel, was not premised on the defendant’s pleadings, nor addressed in her Pre-Trial Memorandum filed prior to the trial. Dr. Francis Alexis QC for the claimant intimated to the court that he was taken by surprise.
[23] It is trite and settled law that a party is bound by its pleadings unless it has been allowed to amend them. Blenman JA in the case of George W Bennet Bryson’s & Co. Ltd. v George Purcell’ summarised this legal principle thus:
“…the function of pleadings is to ‘give fair notice of the case which has to be met’ and ‘to define the issues on which the court will have to adjudicate in order to determine the matters in dispute between the parties.’ It is duty [sic] of the court to firstly examine the pleadings and then to decide the case in view of, or more properly, on the basis of the pleadings.”
[24] CPR 10.5 (1) requires that the defence must set out all the facts on which the Defendant relies to dispute the claim. In Leon O. Taylor v Wilfred Julien et al Baptiste JA said:
“A pleading must make clear the general nature of the case of the pleader since it is inimical to a fair hearing that a party should be exposed to issues and arguments of which he has no fair warning”.
He further held that CPR 10.7 provides the consequences of not setting out a proper defence. The defendant may not rely on any allegation or factual argument which his not set out in the defence but could have been set out there. The normal consequence of failing to deny a material fact in a statement of claim is that the court may treat the fact as admitted.
[25] Counsel for the defendant cannot now, at the close of the trial and in closing oral submissions raise a fundamental novel defence and legal issue not previously pleaded or canvassed in witness statements or pre-trial memorandum. Both Counsel for the claimant and defendant failed to comply with the case management directions made by this court on the 12th April 2021 directing the filing of submissions and authorities for the trial. This is a judicial review matter which has been in this jurisdiction’s system since 2014, with a previous trial date fixed for 2017 which was never heard.
[26] In any event, the court is of the view that the defendant is susceptible to judicial review. The availability of judicial review depends on the source of the decision maker’s powers to make the decision in question, and the nature of that decision’. The question is whether the body is carrying out a public law function’.
[27] In R (Beer trading as Hammer Trout Farm) v Hampshire Farmers’ Market Limited the Court of Appeal held that unless the source of the power of a decision-maker originating from statute or prerogative clearly provided the answer, the question whether a decision was amenable to judicial review required careful consideration of the nature of the power and function to be exercised to see whether the decision had a sufficient public element, flavour or Character to bring it within the purview of public law.
[28] Although a non-profit company, the defendant is the National Olympic Committee for the state of Grenada, and through the Olympic Charter 2013, is tasked with certain public functions such as:
(1) To promote the fundamental principles and values of Olympism in their countries…; and
(2) To ensure the observance of the Olympic Charter in their countries.
[29] National Olympic Committees further have the exclusive authority for the representation of their respective countries at the Olympic Games, and at regional, continental or world multi-sports competitions patronised by the International Olympic Committee.
[30] Consequently, given the public nature of the above fundamental aspects and responsibilities of the defendant, and its national representative character, the court finds that the defendant is susceptible to the judicial review of its decisions.
[31] Having accepted the public nature of the defendant, the issue is whether, in refusing the claimant’s application for membership, the defendant was required to give an opportunity to be heard and reasons for its decision.
Whether the Claimant was entitled to and denied an Opportunity to be heard
[32] Byron CJ in Corporal Philbert Bertrand v The Secretary, PSC stated that:
“The first rule of natural justice is the audi alteram partem rule which requires that each party be heard by the adjudicating authority… three essential elements of the rule require restatement. One is the duty to disclose the information on which judgment is likely to be based in order to give an opportunity to controvert, correct and comment on it. Another is the necessity to give particulars of the charges on which judgment will be based. The third is the elementary and obvious imperative that judgment should not be reached until parties have had an opportunity to be heard.”
TO BE CONTINUED