Crown takes issue with businessman’s absence from court
An attorney for Rock Hard Cement today requested a stay of court proceedings brought by the Town & Country Planning Department against the Mark Maloney-led enterprise.
The move was aimed at blocking any further sanction against the embattled company until its own appeal is heard in the High Court later this year.
Attorney-at-law Vincent Watson made the formal application this afternoon as the matter came up for hearing before Magistrate Douglas Frederick in the District ‘A’ Magistrates Court.
The company is accused of breaching a stop notice issued by the office of the Chief Town Planner Mark Cummins, instructing that no further development occur at Lots 3 and 7, Flour Mill Site, Spring Garden, St Michael. The accusation relates to carrying out, causing or giving permission for construction work and operations to be carried out on the properties late last year while they were the occupiers, thereby contravening Section 40 B (1) of the Town & Country Planning Act, Chapter 240.
At the beginning of the matter, Justin Harrison, an employee of the Company, appeared on its behalf and stood in the dock.
However, Magistrate Douglas Frederick queried whether Harrison could rightfully act on the Company’s behalf.
Watson submitted that Harrison had power of attorney and was legitimately representing the company.
Crown Counsel with the Office of the Director of Public Prosecutions Oliver Thomas argued that if Watson was purporting that Harrison could represent Hard Rock Cement, then “he has to bring instruments to satisfy the court and to prove that he [Harrison] has locus standi”.
Magistrate Frederick said neither party had brought law or evidence to support their position.
Pointing toward the dock, Watson said there were persons who seemed intent on seeing businessman Mark Maloney “in there”, but the attorney insisted that he did not have to be there. The lawyer stressed that it was the company and not Maloney who stood accused; therefore anyone deemed by the company to be its representative should be able to carry out that function.
However, the magistrate suggested that the Corporate Secretary was the legal representative of any company and should be the one appearing on the company’s behalf.
He also pointed out that at the end of the day if there was liability, it would crystalize “on a particular person” and that being the case, the court had to ensure that “the correct person was before the court”.
Responding, Watson insisted that since the complaint was against a company, all that had to be proven was that Rock Hard Cement was “legitimately operating in Barbados”.
He further pointed out to the court that even though the Chief Town Planner Mark Cummins was the informant named in the case, “he is not here” in person, but had someone representing him.
The first hearing was scheduled for today of the case in which Chief Town Planner Mark Cummins is accusing Maloney of breaching a stop notice in relation to two lots at Spring Garden, St Michael, where Maloney allegedly continued development after he was instructed to discontinue doing so by the Town & Country Planning Department.
However, the magistrate stood the matter down so that the attorneys could either produce law, documentation or the Corporate Secretary of the Company in order for the matter to proceed.
A couple of hours later, Watson produced a resolution from Rock Hard Cement authorizing Harrison to act on its behalf and the case got underway.
It was then that the lawyer asked for a stay of the proceedings in the Magistrates Court, since an appeal against an enforcement notice was already in motion in the High Court, which was yet to be determined.
Further, Watson said, the circumstances of both matters were similar, as would be the defence. If the enforcement notice were to be revoked or quashed by a judge, then the current stop notice would become null and void, the lawyer contended.
The attorney went on to say that the challenge to the enforcement notice given by the Chief Town Planner occurred earlier this month, with the hearing being set for September. He therefore felt that since the matters were now concurrent, the magistrate court being the lower court should stay the proceedings, pending the determination by the High Court.
Derek Odderson was the other attorney acting as legal counsel for Rock Hard Cement.
The matter was adjourned until July 8 when Thomas is expected to respond.