Callely v Moylan and Others

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 14 January 2011
• Neutral Citation: [2011] IEHC 2
• Court: High Court
• Docket Number: [2010 No. 1207 JR]
• Date: 14 January 2011

[2011] IEHC 2

THE HIGH COURT

[No. 1207 J.R./2010]

Callely v Moylan & Ors

JUDICIAL REVIEW

BETWEEN

IVOR CALLELY

APPLICANT

AND PAT MOYLAN, DAN BOYLE, FRANCES FITZGERALD, CAMILLUS GLYNN, DENIS O'DONOVAN, JOE O'TOOLE AND ALEX WHITE (MEMBERS OF THE SELECT COMMITTEE ON MEMBERS INTERESTS OF SEANAD EIREANN), COMMITTEE ON MEMBERS' INTERESTS OF SEANAD ÉIREANN AND SEANAD EIREANN

RESPONDENTS

OIREACHTAS (ALLOWANCES TO MEMBERS) ACT 1938 S4(1)(C)

OIREACHTAS (ALLOWANCES & FACILITIES) REGS 2010 SI 84/2010

OIREACHTAS (ALLOWANCES TO MEMBERS) (TRAVELLING FACILITIES & OVERNIGHT ALLOWANCE) REGS 1998 SI 101/1998 REG 5

ETHICS IN PUBLIC OFFICE ACT 1995 S8

ETHICS IN PUBLIC OFFICE ACT 1995 S32(6)(B)

STANDARDS IN PUBLIC OFFICE ACT 2001 S4

CONSTITUTION ART 15.10

STANDARDS IN PUBLIC OFFICE ACT 2001 S4(1)(A)

WIRELESS DEALERS ASSOCIATION v MIN FOR INDUSTRY & ORS UNREP SUPREME 7/14.3.1956 2007/60/12985

O'MALLEY v CEANN COMHAIRLE & ORS 1997 1 IR 427 1997/11/3508

HAUGHEY & MULHERN v MORIARTY & ORS 1999 3 IR 1

CONTROLLER OF PATENTS DESIGNS & TRADE MARKS & FITZPATRICK v IRELAND & ORS 2001 4 IR 229

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921

MAGUIRE & ORS v ARDAGH & ORS 2002 1 IR 385

HOWLIN v MORRIS 2006 2 IR 321

CONSTITUTION ART 15

BYRNE v IRELAND & AG 1972 IR 241

CONSTITUTION ART 12.8

CONSTITUTION ART 15.13

CONSTITUTION ART 28.3.3

CONSTITUTION ART 40

CONSTITUTION ART 34.1

CONSTITUTION ART 34.3

STANDING ORDERS OF SEANAD EIREANN ORDER 90

STANDARDS IN PUBLIC OFFICE ACT 2001 SCHED 1

ETHICS IN PUBLIC OFFICE ACT 1995 S8(2)

ETHICS IN PUBLIC OFFICE ACT 1995 S9(1)

STANDARDS IN PUBLIC OFFICE ACT 2001 S4(1)

ETHICS IN PUBLIC OFFICE ACT 1995 S32

ETHICS IN PUBLIC OFFICE ACT 1995 S32(6)(C)

ETHICS IN PUBLIC OFFICE ACT 1995 S32(6)(F)

ETHICS IN PUBLIC OFFICE ACT 1995 S32(6)(G)

HAUGHEY, IN RE 1971 IR 217

ETHICS IN PUBLIC OFFICE ACT 1995 S32(2)(A)

ETHICS IN PUBLIC OFFICE ACT 1995 S32(2)(B)

ETHICS IN PUBLIC OFFICE ACT 1995 S32(2)(D)

ETHICS IN PUBLIC OFFICE ACT 1995 S32(2)(E)

ETHICS IN PUBLIC OFFICE ACT 1995 S32(2)

ETHICS IN PUBLIC OFFICE ACT 1995 S32(3)

ETHICS IN PUBLIC OFFICE ACT 1995 S32(5)

ETHICS IN PUBLIC OFFICE ACT 1995 S32

ETHICS IN PUBLIC OFFICE ACT 1995 S10(2)

ETHICS IN PUBLIC OFFICE ACT 1995 S5

ETHICS IN PUBLIC OFFICE ACT 1995 S7

ETHICS IN PUBLIC OFFICE ACT 1995 S10(1)(B)

ETHICS IN PUBLIC OFFICE ACT 1995 S28(1)

ETHICS IN PUBLIC OFFICE ACT 1995 S28(2)

ETHICS IN PUBLIC OFFICE ACT 1995 S28(2A)(A)

ETHICS IN PUBLIC OFFICE ACT 1995 S28

ETHICS IN PUBLIC OFFICE ACT 1995 S8(1)

ETHICS IN PUBLIC OFFICE ACT 1995 S5(1)

ETHICS IN PUBLIC OFFICE ACT 1995 S7(2)

CONSTITUTION ART 40.1

CANE v DUBLIN CORP 1927 IR 582

CONSTITUTION ART 15.15

CONSTITUTION ART 17

CONSTITUTION ART 21

CONSTITUTION ART 22

CONSTITUTION ART 34

ETHICS IN PUBLIC OFFICE ACT 1995 S9

DOHERTY v GOVT OF IRELAND & AG UNREP KEARNS 3.11.2010 2010 IEHC 369

KENNY v TRINITY COLLEGE DUBLIN & DUBLIN CITY COUNCIL 2008 2 IR 40 2007/32/6662 2007 IESC 42

P (A) v JUDGE MCDONAGH UNREP CLARKE 10.7.2009 2009/46/11494 2009 IEHC 316

CONSTITUTION

Separation of powers

Justiciability - Oireachtas Committee - Disciplinary proceedings - Seanad Éireann - Senator - Complaint regarding claim for expenses - Investigation - Whether misrepresentation of normal place of residence - Report - Justiciability - Separation of powers - Exclusive jurisdiction of Oireachtas - Internal affairs - Right to vindicate good name - Right of access to courts - Natural justice - Fair procedures - Subject matter of inquiry - Definition of "normal place of residence" - Whether "specified act" committed - Ultra vires - Whether irrelevant matters considered - Statements - Bias - Objective bias - Cane v Dublin Corp [1927] IR 582, In re Haughey [1971] IR 217, Maguire v Ardagh [2002] 1 IR 385 and Kenny v Trinity College Dublin [2007] IESC 42, [2008] 2 IR 40 considered; Wireless Dealers Association v Minister for Industry and Commerce (Unrep, SC, 14/3/1956) and O'Malley v An Ceann Comhairle [1997] 1 IR 427 distinguished - Oireachtas (Allowances To Members) Act 1938 (No 34) - Ethics in Public Office Act 1995 (No 22) - Standards in Public Office Act 2001 (No 31) - Oireachtas (Allowances To Members) (Travelling Facilities and Overnight Allowance) Regulations 1998 (SI 101/1998) - Constitution of Ireland 1937, Articles 15, 34 and 40 - Certiorari granted (2010/1207JR - O'Neill J - 14/1/2011) [2011] IEHC 2

Calelly v Moylan

Facts: The applicant Senator sought an order of certiorari quashing the respondents report of the results of an investigation into complaints concerning Senator Ivor Callely dated 14 July 2010. The applicant had submitted a claim for overnight and travel expenses for a period relating to a principal residence in Cork. He also had a home in Dublin and a dispute arose as to his normal place of residence and the expenses claimed by him. The applicant had returned certain expenses subsequently and had submitted later "nil" returns. Complaints had been made by members of the public pursuant to s. 8 Ethics in Public Office Act 1995, as amended by the Standards in Public Office Act 2001, relating to the alleged misrepresentation of the Senator of his place of residence. The applicant was censured in the report and suspended from service for twenty days with financial penalties. The proceedings related to the interpretation of the phrase "normal place of residence" in s. 4(1)(c) Oireachtas (Allowances to Members) Act 1938 in relation to expenses members of the Seanad were entitled to recover for expenses incurred in travelling to attend proceedings of Seanad Eireann. Further rules were set out in Oireachtas (Allowances to members) (Travelling Facilities and Overnight Allowances) Regulations, 1998 (SI No. 1010 of 1998). The respondents raised a preliminary objection to the parliamentary disciplinary proceedings in the form of justiciability pursuant to Article 15 of the Constitution and whether a Court was entitled to hear the proceedings. Certain statements had been publicly made by the respondents. The question arose as to whether natural justice and fair procedures had been complied with, whether the applicant's legitimate expectation to have his normal place of residence determined in accordance with Department of Finance definitions were breached and whether the determination of the respondents were tainted by bias.

Held by O' Neill J. that the statements made by the sixth named respondent could be said to be premature judgment amounting to objective bias. The issues raised in the proceedings were justiciable, that the determination of the respondents and the resolution of Seanad Eireann impugned in the proceedings were ultra vires the Acts of 1995 and 2001, on the basis that the respondents failed to exercise their adjudicative junction in an appropriate judicial manner by making political judgment on the issues in the investigation breaching the right of the applicant to natural justice and fair procedures. The Court held that the respondents misdirected themselves in law on the definition of "normal place of residence". The respondents breached natural justice and fair procedures in failing to have afforded the applicant a reasonable opportunity to defend himself on a charge of breach of political ethics notwithstanding his compliance with the applicable definition of normal place of residence. There would be an order of certiorari quashing the determination of the respondents and the resolution of the Seanad.

Reporter: E.F.

1 JUDGMENT of O'Neill J. delivered on the 14th day of January, 2010

2 1. In these proceedings, the applicant seeks, by way of judicial review, orders of certiorari, quashing the respondents' 'Report of the Results of an Investigation into Complaints Concerning Senator Ivor Callely' dated 14 ^th July, 2010, and quashing a resolution of Seanad Éireann adopted by Seanad Éireann on 14 ^th July, 2010, to the effect that the applicant be censured and be suspended from service of the House for a period of twenty days on which the House should sit, and that such annual sum by way salary payable to the applicant be withheld for that period, and that the period of suspension commence forthwith.

BACKGROUND

3 2. The applicant in these proceedings is member of Seanad Éireann, having been so appointed by An Taoiseach, Mr. Brian Cowan, T.D., in August 2007. Prior to that, he had been a member of Dáil Éireann for approximately eighteen years and lost his Dáil seat in the General Election in May 2007. As a member of Dáil Éireann, he represented the constituency of Dublin North Central, where he resided with his family, and where he had a Constituency Office. The applicant also has another home, originally a holiday home, since 1992, at Kilcrohane, near Bantry in West Cork.

4 3. Pursuant to s. 4(1)(c) of the Oireachtas (Allowances to Members) Act 1938 ("the Act of 1938"), members of the Seanad are entitled to recover expenses incurred in travelling to attend sittings of Seanad Éireann, from their " normal place of residence". The section is as follows:

"The travelling facility to be granted to each member of the Oireachtas under this Act shall be ..."

(c) in the case of a member of Seanad Éireann, travelling facilities between Dublin and his normal place of residence for the time being."

5 4. Pursuant to the Oireachtas (Allowances to Members) (Travelling Facilities and Overnight Allowances) Regulations 1998 (S.I. No. 101 of 1998) ("the 1998 Regulations"), a member of the Houses of the Oireachtas, whose normal place of residence was further than fifteen miles from Leinster House, had an option of choosing to claim expenses in attending Leinster House, either through a daily allowance of €61.00 or a travel allowance based on mileage and an overnight allowance of approximately €140.00 per...