Central Applications Office Ltd v Minister for Community, Rural and Gaeltacht Affairs and Others

JurisdictionIreland
JudgeMr. Justice John MacMenamin
Judgment Date14 October 2008
Neutral Citation[2008] IEHC 309
CourtHigh Court
Date14 October 2008

[2008] IEHC 309

THE HIGH COURT

[No. 5705P./2006]
Central Applications Office Ltd v Min for Community, Rural & Gaeltacht Affairs & Ors

BETWEEN

CENTRAL APPLICATIONS OFFICE LTD.
PLAINTIFF

and

THE MINISTER FOR COMMUNITY, RURAL AND GAELTACHT AFFAIRS, IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS

OFFICIAL LANGUAGES ACT 2003 (PUBLIC BODIES) REGS 2006 SI 150/2006

OFFICIAL LANGUAGES ACT 2003

CENTRAL APPLICATIONS OFFICE LTD v MIN FOR COMMUNITY, RURAL & GAELTACHT AFFAIRS & ORS UNREP HIGH MACMENAMIN 14.10.2008 2008 IESC 309 PART II PARA 19

OFFICIAL LANGUAGES ACT 2003 S2

OFFICIAL LANGUAGES ACT 2003 S4

OFFICIAL LANGUAGES ACT 2003 S4(1)

OFFICIAL LANGUAGES ACT 2003 S4(5)

OFFICIAL LANGUAGES ACT 2003 SCHED 1 ART 1.3

OFFICIAL LANGUAGES ACT 2003 SCHED 1 ART 1.5

OFFICIAL LANGUAGES ACT 2003 SCHED 1 ART 1.5(c)

OFFICIAL LANGUAGES ACT 2003 SCHED 1 ART 1.5(d)

OFFICIAL LANGUAGES ACT 2003 SCHED 1 ART 2

OFFICIAL LANGUAGES ACT 2003 PART IV

OFFICIAL LANGUAGES ACT 2003 SCHED 1 ART 1.5(a)

OFFICIAL LANGUAGES ACT 2003 SCHED 1 ART 1.5(b)

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD v AG 1970 IR 317

CONSTITUTION ART 25

CONSTITUTION ART 25.4.6

BUPA IRELAND LTD & ANOR v HEALTH INSURANCE AUTHORITY & ORS UNREP SUPREME MURRAY 16.7.2008 2008 IESC 42

SHORTER OXFORD ENGLISH DICTIONARY 3ED 1944

Ó D ÓNAILL FOCL ÓIR GAEILGE-BÉARLA 2ED 2005

OFFICIAL LANGUAGES ACT 2003 S22(1)(a)

OFFICIAL LANGUAGES ACT 2003 S22

CONSTITUTION ART 15.2

UNIVERSITIES ACT 1997 S13(1)

UNIVERSITIES ACT 1997 S13(2)(c)

REGIONAL TECHNICAL COLLEGES ACT 1992 SCHED 2 ART 14

HIGHER EDUCATION AUTHORITY ACT 1971 S1

CITYVIEW PRESS v COMHAIRLE OILI ÚNA 1980 IR 381

INTERPRETATION ACT 2005 S5

Abstract:

Statutory Interpretation - Languages - Education law - CAO - Public Statues - Public function - Compliance with Official Languages Act 2003

Facts: The plaintiff, the Central Applications Office (CAO), an independent third level admission body, was informed by the defendant that it had been designated as a public body by s. 1(5) of the Official languages Act 2003. The designation imposed certain duties of compliance on the plaintiff, including the translation of official documents. The plaintiff sought a declaration that the designation was ultra vires the Official languages Act 2003. The proceedings hinged on questions of statutory interpretation as to the function of the CAO and whether it carried out from 1976 a different function than the universities previously.

Held by MacMenamin J. that pursuant to s. 1(5)(c) of the Act of 2003 the CAO was not performing a function which was previously vested in a body or was under public ownership or control. Pursuant to s. 1(5)(d) the CAO did not perform such functions, powers or duties, in relation to a class of the general public. The phraseology of the public statutes governing higher education was sufficiently broad so as to empower the Minister to make this designation. The case could not be made that in the functioning of the CAO the universities were acting ultra vires. The plaintiff came within the category of any other body on which functions in relation to a class of the general public stood permitted by the enactment in relation to such institutions. The application of the plaintiff would fail.

Reporter: E.F.

1

1. On the 10 th April, 2006, the plaintiff ('the C.A.O.') was informed by the first named defendant's department that it had been designated as a "public body" by virtue of the Official Languages Act 2003 (Public Bodies) Regulations 2006 ("the 2006 Regulations"). The effect of this designation was to impose certain duties of compliance on the plaintiff in relation to the provision of services in the first national language. These would include the provision of official documents, and the capacity to conduct its activities and functions through the medium of the Irish language. The plaintiff now seeks a declaration that such designation pursuant to those regulations is ultra vires the Official Languages Act of 2003 (the Act of 2003). This judgment deals, firstly with the evidence as to the function and activities of the C.A.O., giving rise to the basis of the challenge, secondly, with the provisions of the Act of 2003, and thirdly, with the application of those provisions to the factual context in accordance with authority.

I The Central Applications Office Ltd - functions and activities
2

2. The C.A.O. is a non-profit company limited by guarantee. It is based in Galway. It was established in 1976. Normally it employs ten people, but this increases at peak examination times. Its principal function is centrally to process and prioritise applications for admission to third level colleges and institutions. It does not now receive public funding although it received seed capital at its establishment. Its revenue base is largely derived from student application fees. The State has no responsibility for its operation.

How the C.A.O. functions
3

The sole witness in the hearing was Mr. Joseph O'Grady, the operations manager of the C.A.O., who has worked there since 1992. He testified that prior to the establishment of that body in 1976, no central application or admission service existed for the third level educational institutions. The distinction between applications and admissions is of importance, in that only educational institutions admit candidates. The C.A.O. does not have this function.

4

4. Up to 1976, applications for third level places were processed separately by each of the individual admissions offices of the universities. But with the introduction of the points system problems arose. These are described below. The universities decided that it would be best to form a single body to unify the process of applications. These founding universities were the then constituent colleges of the National Universities of Ireland in Dublin, Galway, Cork, Maynooth, together with Trinity College, Dublin.

5

5. The main problem was that prior to the inception of the C.A.O., duplication of admissions occurred in places in the "high demand" faculties in the universities. At that time each higher education institution separately processed these. No information was shared. Thus, for example, an applicant might submit an application, be considered, and receive a placement for medicine in Trinity College, Dublin in October of an academic year, only for that college to find he/she had already commenced the same course in University College, Dublin. This non-unified regime created obvious administrative difficulties. Often second, third or later choice vacancies were filled late, rather than prior to the commencement of that term.

6

6. The effect of the new unified system was that in response to one single application, just one offer, prioritised in accordance with State examination results, went out to each applicant. Such applicant would then decide whether or not they wished to accept that offer. A candidate achieving a high level of points was very likely to be given his or her first preference in faculty and university. In turn, each university became aware at an appropriate time as to whether place offers were to be accepted or rejected. This new system expanded to almost all higher educational institutions over succeeding years.

7

The Central Admissions Office does not itself admit candidates to any university or other third level institution. Its function is to process the initial offers, as instructed by the higher education institutions. The clear evidence in this case was that the function of admission by such institution was reserved to itself. I find the C.A.O. is therefore, essentially a service provider relating to applications only. It provides a process of determining applications in accordance with identified criteria, but now on a centralised basis, in accordance with place availability and point attainment.

8

8. It is now necessary to examine the present procedure in some further detail. One of the issues is the extent to which this differs from that operating prior to 1976.

Further analysis of the C.A.O. procedure
9

9. The fundamental procedure adopted has not significantly altered since its inception in 1976. But there are now 45 affiliated higher education institutions.

10

10. Early in the calendar year the C.A.O. receives applications from students intending to sit the Leaving Certificate or other relevant State examinations. These are processed and placed into electronic files. When each candidate's Leaving Certificate results are provided, the office carries out a check as to whether or not such candidate has met the subject entry requirement for the course chosen, calculates his/her points, and places them on a list in order of merit.

11

11. To summarise therefore:

1

) the C.A.O. functions in a single location;

2

) it engages in one single placement application procedure for all candidates;

3

) it deals with applications only and not admissions;

4

) it processes examination results in accordance with grades and points;

5

) it allocates places in higher educational institutions in accordance with points attainment;

6

) it is a private company.

The "function" of the C.A.O.
12

12. This case hinges largely on statutory interpretation. A significant issue is whether the process in which the C.A.O. has been engaged since 1976 is a different "function," (as defined in the Act of 2003) from that carried out by the universities previously. In essence function is defined as power or duty. The relevant definitions are outlined in Part II (paragraph 19) of this judgment.

The pre-1976 system
13

13. The evidence established that:

1

) prior to 1976, the individual universities used to receive separate applications and process them internally;

2

) they did not engage in a ranking process of the type just...

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