Bahamas Hotel Maintenance & Allied Workers Union v Bahamas Hotel Catering & Allied Workers Union and others (Bahamas)

A certificate of registration issued under a statutory registration scheme may be conclusive evidence of compliance, including against a later judicial review challenge, where the legislation so provides. A party wishing to challenge a registration allegedly obtained by mistake should first ask the registrar to exercise the statutory cancellation power. A refusal may then be reviewed without the delay problem arising from a direct challenge. In judicial review, the proper respondent is ordinarily the official who made the decision. Relief remains discretionary. The court must consider good administration, finality, fairness and the position of affected third parties. Where rival unions seek recognition, the statutory purpose is democratic resolution by the prescribed ballot. Subsequent events, including an unchallenged poll, may make delay no longer decisive.

Two Bahamas trade unions claimed recognition by the employer as bargaining agent under Part III of the Industrial Relations Act 1970. Maintenance had been registered in 2001 without publication of the required Gazette notice. In 2006 it claimed recognition, leading the Minister to arrange a ballot. Catering and the employer sought judicial review to stop the ballot and quash Maintenance’s registration.

The Chief Justice refused relief for delay. Adderley J later ordered a poll, which Maintenance won and which was not challenged. The Court of Appeal allowed Catering’s and the employer’s appeals and declared the registration void; Longley JA dissented. The central issues before the Board were the effect of the registration certificate, the proper parties, and the significance of delay and the subsequent poll.

Appeal allowed. The Board held that the Court of Appeal was wrong to treat the registration and all subsequent events as nullities.

1. Registration. Section 12 of the Industrial Relations Act 1970 made the registration certificate conclusive evidence that the statutory registration requirements had been complied with, subject to cancellation and section 13. The conclusiveness protected public reliance on the register and prevented a late direct challenge by judicial review. The Board referred to R v Registrar of Companies Ex p Central Bank of India [1986] QB 1114 as illustrating the same principle.
2. Correct statutory route. If registration had been obtained by mistake, the appropriate course was to ask the Registrar to give notice and exercise the cancellation power under section 15. A refusal could then be challenged by judicial review without the same delay difficulty. The Board expressed no view on whether such a challenge would succeed.
3. Proper parties. The Registrar was the natural respondent to a challenge concerning registration or refusal to exercise statutory powers. The Minister was the proper respondent to a challenge concerning the ballot. The Attorney-General was not ordinarily a proper respondent. Judicial review proceedings were not civil proceedings within section 12 of the Crown Proceedings Act. The Board relied on Minister of Foreign Affairs, Trade and Industry v Vehicles and Supplies Ltd [1991] 1 WLR 550 and Gouriet v Union of Post Office Workers [1978] AC 435.
4. Discretion and subsequent events. Judicial review relief is discretionary. Good administration requires finality, reasonable dispatch, certainty for citizens and protection against authorities and third parties being kept in suspense. The Board applied the principles discussed in Caswell v Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738 and O’Reilly v Mackman [1983] 2 AC 237. The unchallenged poll and the recognition of Maintenance for more than a year meant that fairness and good administration required Maintenance’s position to be confirmed.

The parties were given 14 days to make written submissions on costs.

• Privy Council: The appeal was allowed. The Board rejected the view that the registration and subsequent recognition process were void, and confirmed the importance of discretion, finality and good administration.
• Court of Appeal of the Commonwealth of the Bahamas: On 26 January 2010 the President and John JA allowed the appeals, extended time and declared Maintenance’s registration void. Longley JA dissented.
• Supreme Court of the Bahamas: On 24 September 2008 the Chief Justice refused judicial review relief principally because of delay and discharged the interim injunction.
• Adderley J: On 16 July 2009 he ordered the Minister to conduct a poll. Maintenance won the poll, and the order and result were not challenged.