The Tribune

By NEIL HARTNELL Tribune Business Editor THE Supreme Court has rejected fears that Customs will produce "a repeat performance" in the absence of a judicial ruling over its demand for all Grand Bahama Port Authority (GBPA) licensees to produce a National Insurance Board (NIB) 'letter of good standing', saying it "does not exist to decide moot points". The March 1, 2012, decision by Justice Estelle Gray-Evans is a blow to Callender's & Co attorney and partner, Fred Smith QC, who on behalf of the law firm and two other companies he owns had brought Judicial Review proceedings against Customs' demand that all GBPA licensees produce an NIB Letter in order to obtain their annual 'over the counter' bond letter for the year to end-2011. After the Judicial Review action began, Customs reversed course, a March 25, 2011, letter from Deborah Fraser, director of legal affairs in the Office of the Attorney General, confirming to Mr Smith that the Department would "discontinue" the NIB letter demand. However, Mr Smith persisted with the Judicial Review action and seeking a Supreme Court ruling on the issue, arguing that it "would impact hundreds, if not thousands, of other licensees in Freeport". Without such a ruling, he alleged, there was nothing to stop Customs returning to the issue or making other demands of GBPA licensees not supported by statute law, something that could threaten the very premise of their business. Justice Gray-Evans, in her ruling, said of Mr Smith's argument: "In his submission, a declaration of unlawfulness in relation to the decision [the NIB letter demand] will put on record Customs' conduct in reaching and implementing the decision was unacceptable and, 'crucially, that it will not stand if such an attempt is made in future'. "He submits further that it is unacceptable for a public body to be able to take unlawful decisions, persist in the face of opposition and cave in (without admission) at the 11th hour, with no consequences to deter it and other public bodies from 'repeating the process all over again'." She added that Mr Smith pointed out that the March 25, 2011, letter "does not contain any admission that the [NIB letter] was unlawful and/or irrational; that it does not contain any guarantee that Customs will not reinstate this practice in the future; it does not contain any guarantee that Customs will not, at some point in the future, impose an 'equally indefensible and arbitrary' condition before it will authorise the purchasing of goods in bond between licensees nor, he points out, does the letter offer restitution of Customs duties, or payment of the applicants' costs for this action". However, Gary Francis, representing Customs from the Attorney General's Office, argued that because the NIB 'Letter of Good Standing' demand had been withdrawn, "there is no longer a live issue between the parties". He added that any future Customs move warranting legal action should result in claims being made at that time. "I am persuaded that but for the reversal [of the NIB letter demand], the applicants would have been entitled to leave to apply for Judicial Review," Justice Gray-Evans concluded. "However, it seems to me that that letter sufficiently disposes of the dispute between the parties, as there is no longer a decision to quash, and although I note Mr Smith's concern about a 'repeat performance' by Customs. I agree with Mr Francis that that bridge ought to be crossed if we come to it." On Mr Smith's arguments that the case had wider implications, Justice Gray-Evans said that "the court has a heavy workload and does not exist to consider moot points". Noting that the existing Customs Management Act provided a remedy for the return of duties paid as a result of the NIB letter demand, the judge added: "I therefore conclude that, in the circumstances, allowing these proceedings to continue would serve no useful purpose. In exercise of my discretion, therefore, I refuse to grant leave for Judicial Review of the decision." Still, she Ordered that Customs' pay Mr Smith's costs.