The Doléance of Harbours and Airport Committee;

JurisdictionJersey
CourtRoyal Court
JudgeTomes, Deputy Bailiff and Jurats Coutanche, Vint, Hamon, Gruchy, Le Ruez, Vibert and Herbert:
Judgment Date11 November 1991
Date11 November 1991
ROYAL COURT
Tomes, Deputy Bailiff and Jurats Coutanche, Vint, Hamon, Gruchy, Le Ruez, Vibert and Herbert:

C.E. Whelan, Crown Advocate, for the petitioner;

P.C. Sinel for the respondent.

Cases cited:

(1) Barker, In re, 1985-86 JLR 284, followed.

(2) Cohen, In re, [1960] Ch. 179; [1959] 3 All E.R. 740; (1959), 103 Sol. Jo. 961, applied.

(3) D'Esterre, femme McCarthy v. Richardson (1961), 253 Ex. 118; 1956-63 T.D. 68, unreported, applied.

(4) Fauvel v. Lempriere (1706), 79 Ex. 230; 2 O.C. 307, unreported, considered.

(5) Goodwin Estates (Jersey) Ltd. v. Le Gros, 1978 J.J. 115, distinguished.

(6) Hare v. Gocher, [1962] 2 Q.B. 641; [1962] 2 All E.R. 763; (1962), 60 L.G.R. 278; 13 P. & C.R. 298; 106 Sol. Jo. 531; 126 J.P. 395, dictum of Winn, J. applied.

(7) Howard's Will Trusts, Re, [1961] Ch. 507; [1961] 2 All E.R. 413; (1961), 105 Sol. Jo. 347, dictum of Wilberforce, J. applied.

(8) Jackson (née Jackson) v. Jackson (née Hurst), 1965 J.J. 463; on appeal, 1966 J.J. 579, applied.

(9) McDermott, In re (1868), L.R. 2 P.C. 341 ([1868] UKPC 18); 16 E.R. 590; 20 L.T. 47; 38 L.J.P.C. 1; 5 Moo. P.C.C.N.S. 466; 17 W.R. 352.

(10) Nicolle, Ex p. (1879), 5 App. Cas. 346 ([1879] UKPC 69); 49 L.J.P.C. 51, followed.

(11) Pritchard, Re, [1962] Ch. 913; [1962] 1 W.L.R. 870; [1962] 2 All E.R. 846; [1962] C.L.Y. 2469; (1962), 106 Sol. Jo. 688; on appeal, [1963] Ch. 502; [1963] 1 All E.R. 873; (1963), 107 Sol. Jo. 154, applied.

(12) Provident Assn. of London Ltd., Ex p. (1889), Ex. 189, unreported, followed.

(13) Public Prosecutor v. Koi, [1968] A.C. 829 ([1967] UKPC 21); [1968] 1 All E.R. 419; (1967), 112 Sol. Jo. 15.

(14) R. v. Croydon JJ., ex p. Lefore Holdings Ltd., [1980] 1 W.L.R. 1465; [1981] 1 All E.R. 520; (1980), 124 Sol. Jo. 848, followed.

(15) R. v. Northumberland Compensation Appeal Tribunal, ex p. Shaw, [1952] 1 K.B. 338; [1952] 1 All E.R. 122; [1952] 1 T.L.R. 161; (1952), 50 L.G.R. 193; 2 P. & C.R. 361; 96 Sol. Jo. 29; 116 J.P. 54, followed in part.

(16) Sayers v. Briggs & Co. (Jersey) Ltd., 1963 J.J. 249; further proceedings, 1964 J.J. 399.

(17) Stephens (née Baureiss) v. Stephens, 1989 JLR N-3, followed.

(18) Vingtaine de la Ville, Ex p. (1804), 4 O.C. 485, unreported, followed.

(19) Wiles, Ex p. (1939), 13 C.R. 14, unreported, followed.

Legislation construed:

Loi (1946) concernant l'expulsion des locataires réfractaires, art. 2(1): The relevant terms of this part are set out at page 321, lines 5-10.

Petty Debts Court (Jersey) Rules, 1977 (R. & O. 6452), r.3: The relevant terms of this rule are set out at page 321, lines 17-21.

Royal Court (Jersey) Rules, 1982 (R.& O. 7026), r.3/6: The relevant terms of this rule are set out at page 332, lines 37-41.

Texts cited:

Dalloz, Lexique de Termes Juridiques, 5th ed., at 36 (1981).

Halsbury's Laws of England, 4th ed., vol. 26, para. 580, at 301; vol. 37, para. 14, at 22-23; vol. 44, para. 933, at 583.

Jacob, The Inherent Jurisdiction of the Court, 23 Current Legal Problems, at 24; at 27; at 48-49 (1970).

Le Gros, Traité de Droit Coutumier de Jersey, at 155-156 (1943).

Maxwell on Interpretation of Statutes, 12th ed., at 320-322 (1969).

Poingdestre, Les Lois et Coutumes de Jersey, at 159; at 235-236 (1928).

Report of the Commissioners appointed to inquire into the Civil, Municipal and Ecclesiastical Laws of the Island of Jersey, together with Minutes of Evidence (Command Papers, First Series, No. 2761), Report, Pt. X, at liv; Minutes, para. 9534; para. 9535; para. 4497; para. 4498 (1861).

Courts—Petty Debts Court—jurisdiction—no inherent jurisdiction to regulate own procedure going beyond powers conferred by Petty Debts Court (Jersey) Rules, 1977—imperfectly served summons cannot be made valid

Landlord and Tenant—determination of lease—notice to quit—Loi (1946) concernant l'expulsion des locataires réfractaires, art. 2(1) requires tenant's objection to notice to quit to be served personally within one month through Viscount—procedure explained but unaltered by subsequent subordinate legislation

Landlord and Tenant—determination of lease—notice to quit—no application to challenge notice to be brought out of time if summons not properly served within prescribed period

Civil Procedure—petition of doléance—appropriate subject-matter—doléance not personal attack on judge's integrity—available to any party (e.g. individual, body corporate, Committee of States) to bring before Superior Number for judicial review any apparently unjust decision of Inferior Number against which no right of appeal would otherwise lie

The petitioner, by a petition of doléance, sought to have annulled a decision of the Royal Court (Inferior Number) that, inter alia, the Petty Debts Court had an inherent jurisdiction to regulate its own procedure going beyond that conferred by the Petty Debts Court (Jersey) Rules, 1977 and could accordingly hear an action out of time which, under those Rules, would have been a nullity for improper service.

The petitioning Committee leased business premises to the respondent. When a notice to quit was served on him, the respondent sought to challenge it in the Petty Debts Court but his summons was sent by post and served out of time under art. 2(1) of the Loi (1946) concernant l'expulsion des locataires réfractaires, as amended. The court held that it had no discretion to hear the respondent and accordingly ruled against him. On appeal, the Royal Court (Le Cras, Commr.) remitted the matter to the Petty Debts Court on the grounds that the Rules governing procedure in the Petty Debts Court had been severed from the 1946 Law in 1967 and that although the court was a creature of statute, it was entitled to look beyond its Rules and exercise its inherent jurisdiction in order to do justice between the parties. The decision is noted at 1989 JLR N-6.

On appeal to the Superior Number by a petition of doléance, the petitioner submitted, inter alia, that (a) the Inferior Number was wrong in law to hold that the Petty Debts Court had any inherent jurisdiction because (i) inherent jurisdiction could be exercised only by a customary court with full judicial power in all matters concerning the general administration of justice within its territorial limits, whereas the Petty Debts Court was created by statute and could not assume procedural powers in excess of those prescribed by the Rules made by the Superior Number, and (ii) the Commissioner's decision would render nugatory the Rules of the Petty Debts Court in that a fundamental breach of them might be disregarded by the Petty Debts Court in spite of the absence of a statutory power entitling it to waive compliance with certain Rules of procedure; (b) the respondent's purported summons before the Petty Debts Court was a nullity because it had not been served personally through the Viscount's Department as was required by art. 2(1) of the 1946 Law and by r.3 of the Petty Debts Court (Jersey) Rules, 1977 and, notwithstanding the decision of the Inferior Number, it would be impossible for the Judge of the Petty Debts Court to make void proceedings valid because the 1977 Rules contained no such provision as r.7/7 of the Royal Court (Jersey) Rules, 1982; (c) in any event, the Judge of the Petty Debts Court was disabled from hearing the summons because it had not been brought within the time limit of one month, also prescribed by art. 2(1) of the 1946 Law, which was not amenable to waiver; (d) the Commissioner's decision was therefore a manifest judicial error which gave rise to a right of appeal by petition of doléance; and (e) the Superior Number had jurisdiction to entertain the petition in the instant case since, like the writ of certiorari, the petition of doléance was available to bring before the Superior Number for judicial review any apparently unjust decision of the Inferior Number against which no right of appeal would otherwise lie.

In reply, the respondent submitted, inter alia, that (a) there was no judicial error from which the Committee could appeal, since the Commissioner had merely remitted the matter for hearing in the Petty Debts Court and had in no sense given a final judgment; (b) the petitioner had suffered no wrong and had merely been deprived of the opportunity to evict the respondent without having to justify its actions; (c) since an appeal by petition of doléance was available only as a constitutional safeguard against manifest errors of law which were final and would otherwise result in the petitioner being denied access to justice, it could not be used in cases such as the present one, in which the petitioner had already lost an appeal to the Inferior Number; and (d) in any event, the Superior Number was not entitled to entertain the Committee's petition because it raised matters of law on which the Jurats, as judges only of fact, could provide no assistance. The court also considered whether a petition of doléance was available to a Committee of the States and not merely to individuals.

Held, allowing the appeal:

(1) The Inferior Number was wrong in law to hold that the Petty Debts Court had any inherent jurisdiction to hear the respondent. The Petty Debts Court was a creature of statute and the Judge's discretion was prescribed by the Rules made by the Superior Number, in which full provision was made for any challenge to a notice to quit (page 337, line 11 - page 338, line 9; page 339, lines 19-25).

(2) The respondent's purported summons was a nullity which could not be salvaged. It had not been served personally through the Viscount's Department as required by art. 2(1) of the 1946 Law ("faire assigner le propriétaire") and by r.3 of the Petty Debts Court (Jersey) Rules, 1977. The 1977 Rules were subordinate legislation, made under the 1946 Law, which explained the method of assignation without altering it. Nor had the purported summons been brought within the mandatory time limit of one month, also prescribed...

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