Wolfe
Barbara Gayle, Staff Reporter
THE APPEAL brought by the executive members of the Junior Doctors Association (JDA), who are challenging the sentence of community service imposed on them by Chief Justice Lensley Wolfe, will begin tomorrow in the Court of Appeal.
The chief justice had ordered each of the executive members to do 200 hours of community service for defying his ruling to resume normal duties on April 1 this year. The association had taken industrial action in March to protest against the non settlement of its wage negotiation.
They disobeyed a back-to-work order by the Industrial Disputes Tribunal and the attorney-general brought an ex parte summons in the Supreme Court. The chief justice heard the application and ordered the doctors to resume normal duties. They disobeyed the order and were cited for contempt of court. Following an apology to the court for disobeying the order, the doctors were sentenced to do community service. They are appealing on the ground that the chief justice did not have the authority to order them to do community service.
However, since the chief justice imposed the sentence, the doctors, represented by attorney Norman Davis, brought a summons in the Supreme Court asking the chief justice to set aside his order because the JDA and its central executive were not legal entities and were not capable of being sued. The chief justice dismissed the summons. The doctors appealed and the Court of Appeal upheld the appeal.
The doctors are contending that since the Court of Appeal found that the ex parte application before the chief justice was a nullity then the contempt of court proceedings must be set aside.
However, lawyers from the Attorney-General's Department said last week that they will be contesting the appeal.
Last week the Court of Appeal, comprising Justice Ian Forte, president, Justice Donald Bingham and Justice Ransford Langrin, gave the reasons for over-ruling the chief justice on the ex parte application. Justice Forte said that on June 9 the applicants by summons applied inter partes for an order discharging the injunction on the basis that the applicants were not legal entities capable of suing or being sued in a representative capacity or otherwise, and that the proceedings be set aside or struck out as a nullity. The chief justice dismissed the summons, ordered the applicants to pay the costs and refused them leave to appeal his order.
The doctors appealed and their attorney argued that in order for the members of the association to be sued, it was necessary for the attorney-general to bring the action against named members of the association in a representative capacity. Justice Forte said that attorney Cheryl Lewis, who represented the attorney-general in an attempt at preserving the order of the chief justice, contended that the naming of the central executive of the association was sufficient as it described an identifiable body of persons.
"In my view this was not sufficient, as the members of the executive were not described by name in the suit. The sections of section 97 of the Civil Procedure Code were therefore not adhered to and consequently there was no proper defendant in the action. As a result I had no option but to conclude that the process was a nullity. In the event, the appeal was allowed, and the order for injunction set aside."
Justice Forte said further that "before leaving this appeal I should add that Miss Lewis for the respondent also contended that the learned chief justice was at the time the application for the injunction was made, functus officio and could not correctly hear the application. This contention in my view had no merit. Where it is sought to have an ex parte order of a judge discharged, it is the correct process to apply to the judge for such an order before appealing to this court."
