Carroll v Minister for Agriculture and Food

• Jurisdiction: Ireland
• Judge: Mr. Justice Blayney
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-HC 201
• Docket Number: [1989 No. 325 J.R.],1989/325 JR
• Court: High Court
• Date: 01 January 1991

CARROLL v. HIM AGRICULTURE & FOOD

BETWEEN

NOEL CARROLL

APPLICANT

AND

THE MINISTER FOR AGRICULTURE AND FOOD

RESPONDENT

1990 WJSC-HC 201

1989/325 JR

THE HIGH COURT

JUDICIAL REVIEW

Synopsis:

AGRICULTURE

Cattle

Disease - Eradication - Bovine tuberculosis - Restricted holding - Notice of restriction - Movement of cattle prohibited - Necessity for prohibition - Dominant public interest - Natural justice - Fair procedures - Landowner without right of appeal - Reasonable grounds for suspicion that there was a reactor on the applicant's farm - Statutory instruments not susceptible to attack on the ground of a lack of natural justice or of fair procedures - Bovine Tuberculosis (Attestation of the State and General Provisions) Order, 1978 (S.I. 256), article 12 - Bovine Tuberculosis) (Attestation of the State and General Provisions) Order, 1989 (S.I. 308), article 12 - (1989/325 JR - Blayney J. - 28/2/90) - [1991] 1 I.R. 230

|Carroll v. Minister for Agriculture|

ANIMALS

Disease

Eradication - Cattle - Bovine tuberculosis - Restricted holding - Designation - Validity - Natural justice - No provision for an appeal - No provision for second test of animal - Dominant public interest - Statutory instrument valid - (1989/325 JR - Blayney J. - 28/2/90) - [1991] 1 I.R. 230

|Carroll v. Minister for Agriculture|

NATURAL JUSTICE

Fair procedures

Tribunal - Decision - Public interest - Cattle disease - Eradication - Statutory scheme - No provision for re-testing animal - No appeal from restricted-holding order - Dominant factor of public interest - Valid scheme - (1989/325 JR - Blayney J. - 28/2/90) - [1991] 1 I.R. 230

|Carroll v. Minister for Agriculture|

WORDS AND PHRASES

"Public interest"

Cattle - Disease - Eradication - Reactor cattle - Isolation - Movement prohibited - Statutory scheme - Immediate precautions necessary - No provision for re-testing alleged reactor - Restricted-holding order - No right of appeal - Fair procedures ousted by dominant public interest - (1989/325 JR - Blayney J. - 28/2/90) - [1991] 1 I.R. 230

|Carroll v. Minister for Agriculture|

Citations:

BOVINE TUBERCULOSIS (ATTESTATION OF THE STATE AND GENERAL PROVISIONS) ORDER 1978 SI 256/1978 REG 12

BOVINE TUBERCULOSIS (ATTESTATION OF THE STATE AND GENERAL PROVISIONS) ORDER 1978 SI 256/1978 REG 12(1)

BOVINE TUBERCULOSIS (ATTESTATION OF THE STATE AND GENERAL PROVISIONS) ORDER 1978 SI 256/1978 REG 2

HOWARD V MIN AGRICULTURE & FOOD UNREP MURPHY 1989/6/1697

1 Judgment of Mr. Justice Blayney delivered the 28th day of February 1990

2 The Applicant is a farmer and businessman. He owns lands at Erris, Boyle in the County of Roscommon on which, in October 1989, he had a herd of 131 cattle. These cattle were tested for Bovine Tuberculosis on the 7th October 1989 by Mr. Barry Lynch V.S., and Mr. Lynch came back on the 10th October to check the result of the test. One of the cattle, bearing tag number 802728-1NCA, gave a reading of 14–16, which is regarded as being an inconclusive reading. But the Applicant's lands are in what the Respondent had designated as a "black spot area", that is to say, an area of high disease incidence, and in such an area an animal with an inconclusive reading is deemed to be a reactor. Accordingly, on the 11th October 1989, Mr. Thomas O'Brien, the Senior Veterinary Inspector of the District Veterinary Office in Roscommon had the Applicant served with a restricted Holding Notice under Article 12 of the Bovine Tuberculosis (Attestation of the State and General Provisions) Order 1978 (S.I. No. 256 of 1978). The effect of the Order was that the Applicant was prohibited from moving any animals into or out of his lands until his herd had had two wholly clear tests carried out at sixty day intervals. In addition, the animal deemed to be a reactor had to be removed from the lands and sent to a factory for slaughter within thirty days.

3 The Applicant protested against the service of the Notice and sought to have the animal in question retested. This was refused and on the 15th December 1989 the Applicant sought and was granted leave to apply by way of Judicial Review for an Order of Certiorari quashing the restricted Holding Notice and an Order of Mandamus directing the Respondent to have the animal in question retested.

4 Article 12 (1) of the 1978 Regulations already referred to, under which the restricted Holding Notice was served, is as follows:-

"12 (1) Where, by reason of a test or otherwise, a veterinary inspector is satisfied or has reasonable grounds for suspecting that -"

(a) there is a reactor on a holding, or

(b) bovine tuberculosis is present on a holding, or

(c) the owner or person in charge of any holding has not, in relation to any animal, goat or swine, complied with any provision of the Act or of this Order,

5 he shall declare the holding to be a restricted holding and shall give or send, or cause to be given or sent, to the owner, occupier or person in charge of the holding a notice in the form set out in Part I of the Second Schedule to this Order."

6 A reactor is defined in Article 2 of the Order as meaning "an animal which, by reason of a test or otherwise, a veterinary inspector believes or suspects is affected with bovine tuberculosis or is capable of infecting other animals with bovine tuberculosis."

7 The grounds on which the Applicant claims to have the Notice quashed are set out in the statement grounding the application for Judicial Review as follows:

8 2 "1. The Order/Notice purported to be served under the provisions of the Bovine Tuberculosis (Attestation of the State and General Provisions) Order 1978 and dated the 11th day of October 1989 is null and void by reason of the said Regulations being ultra vires the power of the Minister and consequently being null and void and of no effect.

9 2. In the alternative on the grounds that the test purported to be carried out on the 10th of October 1989 was not in accordance with the provisions of the Bovine Tuberculosis (Attestation of the State and General Provisions) Order 1978.

10 3. The test purported to be carried out was not carried out in a fair and proper manner and in accordance with the Regulations and EEC Directive L. 47-31 dated 21st day of February 1980.

11 4. The circumstances in which the test was carried out was not carried out in a fair and proper manner and failed to accord the Applicant a fair and proper determination of the testing of his animals.

12 5. The procedures as adopted by the Respondent are in breach of natural and constitutional justice.

13 6. By reason of the want of the fairness in or about the procedures as adopted leading to the making of the Order.

14 7. On the grounds that the Respondent failed to act in accordance with the Regulations and acted in a manifestly unfair and improper manner."

15 The 1978 Regulations were revoked and replaced by the Bovine Tuberculosis (Attestation of the State and General Provisions) Order 1989 ( S.I. No. 308 of 1989) which came into operation on the 4th day of December 1989 and a new restricted Holding Notice under Section 12 of these Regulations was served on the Applicant...