Equality Authority -v- Portmarnock Golf Club & ors and Cuddy & anor -v- Equality Authority & ors, [2009] IESC 73 (2009)

Docket Number:296 7 312/05
Party Name:Equality Authority, Portmarnock Golf Club & ors and Cuddy & anor -v- Equality Authority & ors
Judge:Fennelly J.
 
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THE SUPREME COURT

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 AS AMENDED BY SECTION 51 OF THE COURTS

(SUPPLEMENTAL PROVISIONS) ACT 1961

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Macken J.

BETWEEN/

THE EQUALITY AUTHORITYPlaintiff- and -

PORTMARNOCK GOLF CLUB, DANIEL LYNCH, COLIN HARNETT,T. M. HEALY, JOSEPH LEYDEN, JOSEPH McALEECE, W. P. TWAMLEY AND R. C. CUDDY DefendantsAnd Also

IN THE MATTER

BETWEEN/

ROBERT C. CUDDY AND DAVID KEANE

Plaintiffs- and -

THE EQUALITY AUTHORITY, IRELAND AND THE

ATTORNEY GENERALDefendantsJudgment delivered the 3rd day of November 2009 by Mr Justice Fennelly

  1. Portmarnock Golf Club is a national institution; it is the best known golf club in the country and is renowned internationally. Its membership is restricted to men. The central question on these appeals is whether the principal purpose of the Club is the playing of golf or whether, as the club contends, its principal purpose is to cater only for the needs of men. The answer to this question determines whether Portmarnock is entitled to remain registered as a club.

  2. The appeals are taken by the Equality Authority from the High Court judgment and orders of O'Higgins J in two separate proceedings. Firstly, the Equality Authority had applied successfully to the District Court for determinations pursuant to the Equal Status Act, 2000 that Portmarnock is a discriminating club which would have the effect of depriving it of its registration as a club enjoying the right to supply intoxicating liquor to its members. Sale of intoxicating liquor in a club is, of course, not permitted. The learned District Judge held in favour of the Equality Authority but stated a case to the High Court.

  3. In parallel, Portmarnock issued proceedings in the High Court seeking declarations that it is not a discriminating club and, alternatively, that the relevant legislation is unconstitutional. Portmarnock also argued that the double construction rule would require the relevant legislation be interpreted so as not to infringe its members' constitutional right to freedom of association. Alternatively, Portmarnock argued that the legislation was unconstitutional.

  4. O'Higgins J heard the case stated and the plenary proceedings together. No evidence was called in the High Court. The parties agreed to accept the facts as found in the District Court. O'Higgins J decided in favour of Portmarnock. He held that it is not a discriminating club. He did not resort to the double construction rule. Nonetheless, he went on to consider the constitutional challenge. He found that, if the constitutionality of the Act required to be considered, he would dismiss Portmarnock's claim of unconstitutionality.

  5. The Equality Authority has appealed against the judgment of O'Higgins J on the interpretation of the section. Portmarnock has brought an appeal against the dismissal of its constitutional claim. This does not now arise, in view of the decision of the majority of the Court.

  6. The Court has decided to deal, firstly, with the appeal of the Equality Authority against the decision of O'Higgins J with regard to the correct interpretation of the relevant sections. That is the sole subject of this judgment. I merely wish to emphasise from the outset that I deal only with the questions of statutory interpretation which arise.

    The facts

  7. The relevant facts are taken from the judgment of the District Court.

  8. Portmarnock was founded in 1894. It had 626 members and 625 associate members at the date of the District Court hearing. The Club is affiliated to the Golfing Union of Ireland.

  9. Rule 3 of the Rules provides: "The Club shall consist of Members and Associate Members, as defined below, who shall be gentlemen properly elected and who shall conform with the Rules of Amateur Status, for the time being, prescribed by the Royal and Ancient Golf Club of St Andrews."Rule 14.4 refers to the fact that the "Club [is] primarily devoted to golf."

  10. Women are permitted to play golf at Portmarnock either with or without a member on identical terms to those applicable to male non-members. Women may play the course at Portmarnock on seven days of the week upon payment of green fees at the times permitted for such play. At least three competitions are played at Portmarnock Golf Club in each year in which women take part as guests.

  11. The club provides changing facilities and locker rooms specifically for women as part of the clubhouse complex. Women have access to the bar and restaurant and all other clubhouse facilities (except the male locker rooms) at Portmarnock on an equal basis with men. Presumably, however, women, not being members, and like male non-members, may not purchase intoxicating liquor, though this was not adverted to at the hearing. A ladies' scorecard is available to women playing the course and the club itself facilitates the playing of golf by women under the rules of the Irish Ladies Golfing Union, the body which regulates golf played by women in Ireland.

  12. The club enjoys tax exemption under Section 235 of the Taxes Consolidation Act 1997. That section refers to an approved body of persons who may be granted tax exemptions. An approved body is defined to mean "any body of persons established for and existing for the sole purpose of promoting athletic or amateur games or sport…" (emphasis added).

  13. Portmarnock has, for many years, been the holder of a Certificate of Registration under the Registration of Clubs Acts, 1904-1999.

  14. No other facts have been proved. It has been stated in the written submissions of Portmarnock that it is one of only two among 400 golf clubs in Ireland which restricts its membership to men, though there is no evidence of this fact.

    The legislation

  15. The Equal Status Act, 2000, according to its long title, is "an act to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access…" By that Act, equality policy moved from the area of employment law and entered a number of other areas of economic activity, in particular, the disposal of goods and the provision of services to the public (see section 5). These provisions apply to clubs only to the extent that they supply goods or services to the public. There is even a specific provision to make it clear that section 5 does not apply where a club supplies services to its own members (see section 5(2)(b)).

  16. This case is concerned only with the quite distinct and self-contained provisions of sections 8 and 9, although it is necessary, in considering them, to have regard to definitions regarding discrimination which are used generally in the Act.

  17. These are contained in section 3. Section 3(2) lists what, "as between two persons" are held to be "discriminatory grounds." Depending on how one counts them, there are nine or more, including gender, marital status, family status, sexual orientation, religious belief, age, race or colour or membership of the Traveller Community. Section 3(1) provides that "discrimination shall be taken to occur," where a person is treated less favourably by reference to membership of any of the categories set out in section 3(2). This simplified account of section 3 sufficiently serves the purpose of this judgment. It is a given that Portmarnock's membership rule discriminates on the ground of gender. The Club admits only "gentlemen."

  18. The provisions designed to deprive certain clubs of their continued registration under the Registration of Clubs Acts are contained in sections 8 and 9. Section 8 defines a "club" as "a club which has applied for or holds a certificate of registration." Section 8(2) (a) provides that "a club shall be considered to be a discriminating club if…it has any rule, policy or practice which discriminates against a member or an applicant for membership……" Portmarnock's rule restricting membership to gentlemen is caught by that provision, which is reinforced by section 8(2)(b)(i) by virtue of which it is evidence that a club is a discriminating club if it commits the act of "refusing to admit a person to membership…"

  19. Portmarnock, therefore, is a "discriminating club" as defined by section 8. However, section 9 provides that a club "shall not be considered to be a discriminating club," if it satisfies one or other of the provisions of section 9(1)(a) and "refuses membership to other persons."

  20. The entire appeal...

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