Posted Sunday, June 20, 2021
Ordinary remedies must be used before asking for a judicial review

Parties subject to an administrative decision must first avail themselves of the ordinary remedies at their disposal before filing for a judicial review before the Courts. This was held in a judgement delivered on 10 June 2021 in Joseph Gheiti u Sansone Cruises Limited -v- L-Awtorita ghat-Trasport f’Malta. The judgement was delivered by the First Hall of the Civil Courts presided by Mr Justice Joseph Micallef.

Gheiti in his sworn application asked the court to find a decision taken by Transport Malta to suspend his licence to operate commercial vessels in September 2012 was ultra vires in terms of Article 469(1)(b)(ii) of the Code of Organisation and Civil Procedure and as such abusive at law.

Transport Malta (TM) in its reply by stating that according to Article 469A(4) of the Code of Organisation and Civil Procedure (COCP), this action was not sustainable, since the Plaintiffs did not use all the remedies at its disposal.

Mr Justice Micallef analysed the evidence brought before the Court and saw that the Plaintiffs operate a water taxi and a vessel. The license was suspended because of a number of maritime regulations were not adhered to. The Plaintiffs were given the opportunity to appeal this decision to suspend the licence. Since no appeal was lodged TM informed the Plaintiffs confirmed the suspension of the licence. The Plaintiffs countered this by arguing that in their opinion the notice of suspension was ultra vires since the suspension had already taken place. The Plaintiffs did in fact give notice of appeal, but the appeal was never filed. In September 2012 the Plaintiffs filed a warrant of prohibitory injunction and court action against TM. The warrant was turned down and therefore, the suspension took place.

The Court considered on whether a judicial review could take place once the appeal was not lodged. Article 469A(4) of the COCP is aimed at limiting the jurisdiction of the ordinary court. The Courts in previous judges such as in Banker Fuel Oil Company Limited v Paul Gauci et decided on 5 October 2001, held that the limitation of the Court’s jurisdiction may take place only if the Plaintiff has an effective remedy to challenge the administrative action. Therefore, the keywords here is that the remedy sort must be effective. On the other hand, it must be shown that the party not availing itself of the remedy was not capricious in doing so. If this remedy was not made use of, then that party cannot try to make use of judicial review. In this case, the Plaintiff were aware of their right to appeal, so must so that their lawyer filed a notice of appeal. Such appeals are heard before the Administrative Review Tribunal and then later the Court of Appeal. These facts have convinced the Court that TM’s plea is justified and therefore, forcing the Court not the hear the judicial review action.

TM did not just suspend the licence but allowed the Plaintiffs to exercise their right to appeal. Once it noticed that they did not appeal, then they enforced the suspension.

The Court then moved to uphold TM’s plea and reject the Plaintiff’s claims.

 
 
 
Avv Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
 
 
 
 The article is available on MaltaToday.
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