Becker v Duggan

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 01 November 2005
• Neutral Citation: [2005] IEHC 376
• Date: 01 November 2005
• Court: High Court
• Docket Number: [2004 No. 587

BECKER v DUGGAN

JUDICIAL REVIEW

BETWEEN

MARY BECKER

APPLICANT

AND

FRANK DUGGAN

RESPONDENT

[2005] IEHC 376

[No. 587/JR/2004]

THE HIGH COURT

JUDICIAL REVIEW

Locus standi

Contract of employment - Appeal of decision of board of management to independent arbitrator - Whether matter of public law -Whether breach of fair procedures and natural and constitutional justice - Whether obligation on arbitrator to give reasons -Whether injury to reputation of applicant -Beirne v Commissioner of An Garda Síochána [1993] ILRM 1; Murphy v Turf Club [1989] IR 171; Rajah v Royal College of Surgeons [1994] 1 IR 384; Geoghegan v Institute of Chartered Accountants in Ireland [1995] 3 IR 86; Eoghan v University College Dublin [1996] 1 IR 390 followed - Education Act 1998 (No 51), s 24(6) and (6) - Certiorari granted (2004/587JR - O'Neill J - 1/11/2005)[2005] IEHC 376

Becker v Duggan

Facts: The applicant sought an order of certiorari quashing the decision of the respondent, determining that the procedures employed by the Interview Board were not unfair and upholding the decision of the Board of Management not to appoint the applicant to the posts applied for. The applicant submitted that the refusal by the respondent to direct replies to certain letters written by her and his refusal to direct documentation sought by the applicant to be furnished to her in advance of the appeal amounted to a denial of fair procedures and natural justice, particularly in light of the fact that she had taken issue with the agreed summary from the interview board of what transpired at her interview and challenged the accuracy of same.

Held by O'Neill J. in granting certiorari: That in the circumstances of this case, natural justice and fair procedures required that the applicant should have had access to the written notes made by the members of the interview board prior to the appeal. The failure by the respondent to direct the disclosure of such documentation and his failure to take any steps to test the veracity of the contentions made by either side amounted to a breach of natural justice and fair procedures.

Reporter: L.O'S.

HAUGHEY, IN RE 1971 IR 217

KEENAN v SHIELD INSURANCE CO LTD 1988 IR 89

MANNING v SHACKLETON 1996 3 IR 85 1997 2 ILRM 26

O'NEILL v BEAUMONT HOSPITAL BOARD 1990 ILRM 419

CORRIGAN v IRISH LAND COMMISSION 1977 IR 317

R v CRIMINAL INJURIES COMPENSATION BOARD EX PARTE LAIN 1967 2 QB 864 1967 3 WLR 348

REG v TAKE-OVERS PANEL EX PARTE DATAFIN PLC 1987 QB 815 1987 2 WLR 699

MURPHY v TURF CLUB 1989 IR 171

RAJAH v ROYAL COLLEGE OF SURGEONS 1994 1 IR 384

BEIRNE v COMMISSIONER OF AN GARDA SIOCHANA 1993 ILRM 1

GEOGHEGAN v INSTITUTE OF CHARTERED ACCOUNTANTS 1995 3 IR 87

R v DISCIPLINARY COMMITTEE OF THE JOCKEY CLUB EX PARTE AGA KHAN 1993 1 WLR 909 TLR 9/12/1992

EOGAN v UCD 1996 1 IR 390 1996 2 ILRM 302

EDUCATION ACT 1998 S24(5)EDUCATION ACT 1998 S24(6)

RSC O.84 r21(1)

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

1 JUDGMENT of O'Neill J. delivered the 1st November, 2005.

2 The applicant was on the 14th July, 2004, given leave by O'Donovan J. to apply by way of judicial review for:

3 (a) An order quashing the decision of the respondent made on the 6th April, 2004, in which the respondent stated that he was satisfied that an Interview Board discharged its duty correctly and that there was no unfairness in its procedures and thus upheld the decision of the Board of Management of St. Dominic's College, Cabra, Dublin 7, not to appoint the applicant to an Assistant Principal post of responsibility which decision was made on 4th December, 2003.

4 Leave was granted upon the following grounds:

5 (1) The respondent's decision was made despite being on notice of the breach of para. 3.2.1 Circular 5–98 of the Department of Education and Science which document sets out the revised in school management structures and procedures relating to posts of assistant principal and special duties teachers in secondary schools as negotiated between the ASTI, the JMB and the Department of Education and Science.

6 (2) The respondent's decision was made despite being on notice of the fact that it was wholly inappropriate for the principal of the school to be a member of the Interview Board.

7 (3) The respondent failed to direct the Board of Management of the school to respond to the letter of the applicant addressed to the respondent dated 30th January, 2004, thereby denying the applicant reasonable opportunity of rebutting the contents of his submission furnished to the respondent by the said Board of Management.

8 (4) The respondent failed to direct that documentation sought by the applicant in a letter dated 29th March, 2004, be made available by the Board of Management of the school to the applicant.

9 (5) The respondent conducted an oral hearing in a manner which was oppressive to the applicant.

10 (6) The respondent failed to afford the applicant an opportunity to cross-examine witnesses at the oral hearing which occurred on the 2nd April, 2004, and in particular failed to afford the applicant the opportunity to cross-examine each of the members of the Interview Board.

11 (7) The respondent's statement of his findings is unsatisfactory in its brevity and fails to provide the reasons for the decision taken and what evidence was relied on in reaching this decision.

12 The background to this matter is that the applicant, who is a teacher in St. Dominic's College, Cabra, Dublin 7, which is a voluntary school under a Board of Management, applied for appointment to two posts of responsibility namely Assistant Principal (Permanent) Co-ordinator of External Education Initiatives and secondly, Assistant Principal (Temporary) Year Head for senior students. She was interviewed for these posts on 21st November, 2003, by an Interview Board which was composed of a Mr. Joe Boyle as Chairperson, Sister Maighread Gallagher, as Representative of the Trustees and Ms. Mary Keane the Principal of the school. Of the four candidates seeking these appointments the applicant was undoubtedly the most senior and unless found by the Interviewing Board to be "unsuitable" she was entitled to a post as of right.

13 The Interview Board found the applicant to be unsuitable and hence she was not appointed to either post.

14 Prior to this, the applicant had been interviewed on 2nd April, 2001, for appointment to a post of responsibility and apparently found suitable. A delay occurred in her taking up this appointment, during which the person who was entitled to the post on a permanent basis returned to work, so that in fact the applicant never took up this appointment.

15 Later on 18th October, 2001, the applicant was again interviewed for a post of responsibility and again appears to have been found suitable. A dispute arose concerning terms in the contract, the applicant objecting to certain terms concerning supervision. Ultimately she withdrew this objection and took up this appointment.

16 The applicant was interviewed on 14th October, 2002, for a third Assistant Principal post of responsibility. She was not successful in this interview, but appealed the decision and in due course her appeal was successful. The applicant was interviewed for the fourth time on 28th March, 2003, for appointment as Assistant Principal post of responsibility. The Interview Board recommended the applicant's appointment to the post with reservation but the Board of Management did not sanction the appointment. The applicant appealed the decision of the Board and the arbitrator upheld her appeal on 4th June, 2003, and directed the Board to readvertise the post.

17 The applicant's complaints relevant to the grounds upon which leave has been granted to apply for judicial review are that the chairperson of the interview Mr. Joe Boyle was not qualified to be a chairperson of that Board because he was not on a panel of approved persons for that purpose as required by para. 3.2.1 of circular 5/98 of the Department of Education and Science. Secondly that the Principal of the school Ms. Mary Keane should not have sat on the Interview Board because of conflict between her and the applicant as a consequence of which she was biased towards the applicant.

18 She submits that the refusal of the respondent to direct replies to the applicant's letters dated 30th January, 2004, seeking answers to certain questions from the members of the Interview Board and his refusal to direct that the documentation sought by the applicant in a letter dated 29th March, 2004, be furnished to the applicant in advance of the appeal was a denial of fair procedures and natural justice and prevented the applicant from being in a position to prepare for the appeal. She contends the respondent induced the applicant to go ahead with the oral hearing by an assurance in correspondence that she would be given every opportunity to add to the submissions she had already made or to file additional written submissions, if she so desired, whereas in the hearing of the appeal the respondent displayed an aggressive manner towards her which had the effect of intimidating her and he refused her a right to reply after Ms. Keane had spoken. Furthermore no cross-examination arose; all of which amounted to a breach of the applicant's right to fair procedures and natural justice. She also complains that none of the documents which she had sought which were relevant to the issues in the appeal were obtained by the respondent.

19 The applicant complains that because she was the most senior of the four candidates for the post in question she was entitled to the post unless found to be unsuitable. Hence the rejection of her application for the appointment, involving as it does, a determination that she was unsuitable, has destroyed her...