Bane v Garda Representative Association

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 27 June 1997
• Neutral Citation: [1997] IEHC 107
• Court: High Court
• Docket Number: [1995 Nos. 143, 145 and 146 J.R.]
• Date: 27 June 1997

[1997] IEHC 107

THE HIGH COURT

143JR, 145JR and 146JR/1995

BANE v. GARDA REPRESENTATIVE ASSOCIATION

JUDICIAL REVIEW

BETWEEN

PATRICK BANE, DONAL Ól GALLACHOIR AND FRANK GUNN

APPLICANTS

AND

THE GARDA REPRESENTATIVE ASSOCIATION, PAUL BROWNE, MICHAEL KIRBY, P.J. KELLY, KIERAN McDERMOTT AND JOHN FAHY

RESPONDENTS

Citations:

GARDA SIOCHANA ACTS 1923–1977

GARDA SIOCHANA (ASSOCIATIONS) REGS 1978 SI 135/1978

GARDA SIOCHANA ACT 1924 S13

GARDA SIOCHANA ACT 1977 S1

DEFENCE FORCES (PENSIONS) ACT 1932 S13(3)

GEOGHEGAN V INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND 1995 3 IR 86

RAFFERTY V BUS EIREANN UNREP KELLY 21.11.96 1997 6 2164

WALSH V IRISH RED CROSS SOCIETY UNREP BLAYNEY 7.3.97 1997 12 3909

BEIRNE V COMMISSIONER OF AN GARDA SIOCHANA 1993 ILRM 1

R V CAMBORNE JUSTICES EX-PARTE PEARCE 1955 1 QB 41

O'NEILL V BEAUMONT HOSPITAL BOARD 1990 ILRM 419

O'DONOGHUE V VETERINARY COUNCIL 1975 IR 398

HENEGHAN V WESTERN REGIONAL FISHERIES BOARD 1986 ILRM 225

TURNER V PILOTAGE COMMITTEE OF DUBLIN PILOTAGE AUTHORITY UNREP BARRON 14.6.88 1988 10 3059

ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORPORATION 1982 ILRM 590

CORRIGAN V IRISH LAND COMMISSION 1977 IR 317

FUREY, STATE V MIN FOR DEFENCE 1988 ILRM 89

RSC O.84 r26(4)

Synopsis:

Administrative

Scope of judicial review; bias; judicial discretion; certiorari; challenge to expulsion of applicants from respondent association; whether respondent amenable to judicial review; whether bias; whether court should exercise discretion to quash expulsion Held: Certiorari granted; expulsion quashed High Court: Kelly J. 27/06/1997

Bane v. Garda Representative Association - [1997] 2 IR 449

1 JUDGMENT of Mr. Justice Kelly delivered the 27th day of June, 1997.

2 This case is another chapter in the sorry and, some might think, unseemly, saga of bitterness and dissent which has afflicted the representation of rank and file members of the police force of this State for the last few years.

3 It has its origins in earlier litigation which was heard before Morris J. in March 1994. They were Judicial Review proceedings brought against the Garda Representative Association (the GRA). Two of the applicants in the earlier proceedings are Applicants in the present Judicial Review. The earlier proceedings sought an order restraining the GRA from conducting a ballot of its members in relation to a claim for pensionability of allowances save in compliance with the directions of the Central Executive Committee of the GRA made on the 19th February, 1994. It is clear from the judgment of Morris J., delivered on the 25th March, 1994, that a major issue of fact fell to be determined by him in those proceedings. It concerned the decision of the Central Executive Committee of the GRA made on the 10th February, 1994. Over a number of days he heard direct examination and cross-examination of various witnesses who were in attendance at the meeting of the Central Executive Committee on the relevant date. He had to make findings as to what transpired at that meeting.

4 Each of the Applicants in the present proceedings gave evidence for the applicants in the earlier Judicial Review proceedings to which I have just alluded.

5 Evidence was given for the GRA at that hearing by, inter alia, Paul Browne, Michael Kirby and P.J. Kelly, all of whom are Respondents to the present proceedings.

6 Morris J. found against the then applicants and their proceedings were dismissed.

7 It is clear from the terms of the judgment of Morris J. that a conflict of evidence arose in the proceedings before him. He had to resolve that. He did so in favour of the respondents. In so doing, he clearly preferred the evidence given on behalf of the GRA to that given by the then applicants.

8 It is pertinent to point out that when the earlier Judicial Review proceedings were begun, all three Applicants in the present proceedings were members of the Central Executive Committee of the GRA. It is appropriate at this stage to examine the basis and structure of that Association.

THE GARDA REPRESENTATIVE ASSOCIATION

9 The GRA was established pursuant to the Garda Siochana Acts, 1923– 1977and the Garda Siochana (Associations) Regulations, 1978, as amended. Section 13 of the Garda Siochana Act, 1924, as inserted by Section 1 of the Garda Siochana Act, 1977provides that the Minister for Justice may establish by regulation an association or associations to represent members of the Garda Siochana in all matters affecting their welfare and efficiency. The 1978 Regulations effected the establishment of the GRA. The Association is open to members of the Garda Siochana with the rank of Garda. It is governed by rules set out in the First Schedule to the Regulations. These Regulations have been amended from time to time as indeed have the rules governing the Association. The government of the GRA is carried out by a Central Executive Committee and Divisional Committees. The Central Executive Committee consists of representatives from each of the Divisional Committees in addition to the General Secretary, the Assistant General Secretary and the Assistant to the General Secretary.

10 It is to be noted that pursuant to Section 13(3) of the 1932 Act, as inserted by Section 1 of the 1977 Act, it is not lawful for a member of the Garda to be or become a member of any trade union or of any association other than an association established under the section of which the objects or one of the objects are or is to control or influence the pay, pensions or conditions of service of any police force.

11 I now turn to the events which followed upon the decision of Morris J. and which have given rise to the present proceedings.

THE ACTION TAKEN BY THE GRA

12 On the 20th April, 1994 P.J. Stone, the Deputy General Secretary of the GRA, wrote to the Respondent, Kieran McDermott, who was the Secretary of what is known as the Rule 3(d) Standing Committee of the Association. I will return to the terms of this letter in a few moments but before doing so, it is necessary to say something about this 3(d) Standing Committee.

13 In September 1990 the Association amended its rules. The existing Rule 3(d) was deleted and, in lieu thereof, the following was adopted:-

"(d) Notwithstanding anything contained in these rules, the Central Executive Committee may constitute and appoint and act by a Standing Committee to deal with internal disciplinary matters in relation to the membership of the Association. The Standing Committee shall consist of no fewer than three members."

14 The Standing Committee has power and authority to:-

15 (i) expel from membership of the Association,

16 (ii) debar from holding office at the discretion of the Standing Committee,

17 (iii) impose a financial levy to a maximum equal to one year's subscription to the Association, and

18 (iv) reprimand

19 any member of the Association whose action or conduct the Standing Committee considers to be prejudicial to the interests of the Association and its members.

20 Where a Divisional Committee considers it necessary to bring to the notice of the Standing Committee, that a member or members may be in breach of the Association's rules or regulations or has not responded to advice from a Divisional Committee regarding compliance with Association policy or conditions of employment as negotiated by the Association, the Standing Committee will inform the member(s) concerned in writing of the intention to have him dealt with under this rule.

21 The member shall have the right to appear before the Standing Committee and give a statement on his own behalf or call other members to give evidence for him.

22 A member dealt with under this rule shall have the right to appeal, at his own expense, to the Central Executive Committee and may, for that purpose, appear before the Central Executive Committee and give a statement on his own behalf or call other members to give evidence for him.

23 In the event of an appeal, the Central Executive Committee shall be empowered to overturn, substitute or affirm the decision of the Standing Committee within the limits as set out in Rule 3(d). An appeal in any such case must be lodged with the General Secretary within one month from the date on which the member is notified in writing of the decision of the Standing Committee.

24 The members of the Standing Committee shall be excluded from the hearing on appeal.

25 The decision of the Central Executive Committee shall be final".

26 The letter which was addressed to the Secretary of the 3(d) Standing Committee was in the following terms:-

"Dear Sir"

27 In accordance with the constitution and rules of the Garda Representative Association and particularly in relation to recent events culminating in a High Court challenge from members of the Central Executive Committee, I request that the following matters be investigated by your Committee as a matter of urgency.

28 My complaint is made against five members of the Central Executive Committee, namely:- Patrick Bane, Christopher Finnegan, Stephen Sheerin, Frank Gunn, Donal Ó Gallachoir.

29 I would request that in your investigations you consider whether any of these members have by their conduct or action acted prejudicially to the interests of the Association and its members.

30 My complaint is as follows:-

31 (a) these members failed to support the vote of the Central Executive Committee,

32 (b) gave false evidence to a Court of law,

33 (c) instigated Court proceedings unnecessarily,

34 (d) failed to act in the interest of their members,

35 (e) jeopardised the funds of the Association unnecessarily, and

36 (f) jeopardised the funds of their members unnecessarily.

37 I will make myself available to present my evidence to your Committee at your convenience.

38 Yours sincerely

39 P.J. Stone

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