Clare County Council v His Honour Judge Harvey Kenny
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin |
| Judgment Date | 13 June 2008 |
| Neutral Citation | [2008] IEHC 177 |
| Court | High Court |
| Docket Number | [2007 No. 1607 JR] |
| Date | 13 June 2008 |
BETWEEN
AND
AND
[2008] IEHC 177
THE HIGH COURT
COURTS
Jurisdiction
Circuit Court - Judicial review - Certiorari - Duty to give reasons - Procedure adopted - Decision of Circuit Court Judge to accept jurisdiction to hear appeal from Equality Officer- No reason or rationale given for decision to accept jurisdiction - Whether appeal properly and lawfully before court - Whether court had jurisdiction to consider and decide appeal - Whether judge had regard to extraneous considerations - Whether statutory conditions for appeal fulfilled - State (Cork County Council) v Fawsitt (Unrep, McMahon J, 13/3/1981), State (Holland) v Kennedy [1977] IR 193, State (Hennessy) v Commons [1976] 1 IR 238, State (Creedon) v Criminal Injuries Compensation Tribunal [1988] 1 IR 51, O'Mahony v Ballagh [2002] 2 IR 410, Smith v Judge Ní Chondúin [2007] IEHC 270, (Unrep, McCarthy J, 3/7/2007) and Foley v Murphy [2007] IEHC 232, (Unrep, McCarthy J, 2/7/2007) considered - Equal Status Act 2000 (No 8) ss, 21, 22, 25, 28, 29 and 38 - Certiorari granted (2007/1607JR - MacMenamin J - 13/6/2008) [2008] IEHC 177
Clare Co Co v Kenny
Facts: The respondents alleged that they had been discriminated against by officials of the Council on account of their membership of the travelling community. The Council sought to quash the decision of the respondent when he decided that appeals from a decision of the Equality Tribunal were properly before the Circuit Court. An Equality Officer had made a decision without reference to the Equal Status Acts 2000-2004. The issue arose as to when the Acts provided for a right of appeal and whether the right arose from this particular determination and whether the time limit had expired.
Held by MacMenamin J. that the learned respondent fell into unconstitutionality and the Court could not proceed further to deal with the hypothetical issue. Judicial review would be granted and the matter would be remitted back to the South Western Circuit for reconsideration. The only statutory basis for the decision of the Equality Officer would have been that the complaint was frivolous or vexatious and no such finding was made. In failing to give reasons, the respondent on appeal had moved beyond his jurisdiction.
Reporter: E.F.
EQUAL STATUS ACT 2000 PART III
EQUALITY ACT 2004 S54
EQUALITY ACT 2004 S56
EQUAL STATUS ACT 2000 S25(1)
EQUAL STATUS ACT 2000 S25(4)
EQUAL STATUS ACT 2000 S28(2)
EQUAL STATUS ACT 2000 S28(3)
EQUALITY ACT 2004 S64
EQUAL STATUS ACT 2000 S27(1)
STATE (CORK CO COUNCIL) v FAWSITT & ORS UNREP MCMAHON 13.3.1981 1981/1/143
HOLLAND, STATE v KENNEDY 1977 IR 193
HENNESSY & CHARIOT INNS LTD, STATE v COMMONS 1976 IR 238
CREEDON, STATE v CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51 1989 ILRM 104
O'MAHONY v BALLAGH & DPP 2002 2 IR 410 2001/19/5350
SMITH v NI CHONDUN UNREP MCCARTHY 3.7.2007 2007 IEHC 270
F (S) v MURPHY UNREP MCCARTHY 2.7.2007 2007 IEHC 232
1. The applicant in these proceedings ("the Council") seeks an order of certiorari to quash the decision of the respondent at a sitting of the Circuit Court, South Western Circuit on 9 th October, 2007, wherein he decided that the appeals of the notice parties from a decision of the Equality Tribunal of 11 th December, 2006, were properly and lawfully before the Circuit Court which therefore had jurisdiction to consider and decide the said appeals. It is not contested that the respondent did not give reasons for his decision, an issue considered later in the context of the rather complex history of the case before the Tribunal and the Circuit Court.
2. On 20 th November, 2003, the names of the notice parties Patrick and Caroline Mongan and their five children were listed among 139 complainants who (a) made a complaint to the Director of Equality Investigations ("the Director") seeking redress under s. 21 of the Equal Status Acts 2000 to 2004, (hereinafter "ESA"). They alleged that, on the grounds of their membership of the travelling community, discriminatory treatment had been directed against them by named officials of the Council. In another complaint to the Director they sought redress under s. 21 of the ESA 2000, alleging discrimination and harassment in court proceedings on the same grounds.
3. On 21 st April, 2004, the same notice parties were among 173 complainants who, in a further complaint, sought redress under s. 21 of the ESA 2000, alleging discriminatory treatment on the same grounds, regarding the lack of provision of emergency accommodation.
4. All the complaint forms submitted to the Director of Equality Investigations were completed and submitted by a Ms. Heather Rosen, a lay representative of the complainants. The Council estimates that, while there may be some overlap between named complainants, a total of 1,000 similar and related complaints for redress have been submitted to the Director of Equality Investigations for investigation.
5. These complaints, as well as those of other persons, were scheduled for a hearing by the Equality Officer during sittings in the week commencing 16 th October, 2006. Ms. Rosen, as representative for the notice parties, was notified verbally of this on Friday 22 nd September, 2006. The notice parties' specific complaints were listed for hearing on 19 th October, 2006. Ms. Rosen was so informed on 11 th October, 2006.
6. The sole deponent as to what transpired before the Equality Tribunal is Ms. Lisa Walsh. She is a solicitor in Michael Houlihan and Partners, Solicitors who act for the Council. Her evidence is uncontroverted.
7. On the assigned hearing date she attended at the Equality Tribunal. There was no appearance by any of the complainants, but Ms. Heather Rosen was present. Ms. Duffy, the Equality Officer inquired of Ms. Rosen as to whether there would be an attendance by the complainants. Ms. Rosen replied that they would not be attending. She added that they wished for a new adjudicator. Ms. Rosen said that she no longer "trusted the Tribunal". This complaint appears to have been based solely on a procedural decision by Ms. Duffy in previous cases to "group" complaints so as to hear them together compositely. Ms. Rosen was apparently aggrieved at this decision, no clear reason for this was given in evidence. It may have been based on an apprehension that the making of such an order would limit the extent of redress. There is no evidence before the Court that allegation was properly made, or that this serious criticism of the Equality Officer was in any way justified. Ms. Duffy requested Ms. Rosen to withdraw these remarks. She refused an application to adjourn the hearing.
8. An argument took place. Ms. Rosen then alleged that Ms. Duffy, the Equality Officer, was biased. It is not clear why this allegation was made. It is a serious one and should not have been made without a proper basis. At this point Ms. Walsh, applied to strike out the notice parties' case. Ms. Rosen continued to insist that she wanted a different adjudicator. The Equality Officer requested confirmation that Patrick and Caroline Mongan knew about the date. Ms. Rosen did not give a definite answer. Ms. Duffy indicated that she was satisfied that the two complainants, were aware of the case and allowed Ms. Walsh's application to strike out the proceeding in the face of further protests.
9. Ms. Duffy indicated that the Tribunal would reconvene at 2.30 p.m. for another set of cases, namely those brought by Michael and Kathleen Mongan, and that if the complainants did not appear she would make a similar order to strike out those cases. At the resumption these cases were struck out.
10. In the course of these rulings, the Equality Officer made no reference to any specific section of the Equal Status Acts of 2000 to 2004. However, clearly her decision was primarily based on the failure of the complainants to participate in and pursue the claims. This is further borne out by a written ruling, enclosed in a subsequent letter to solicitors Michael Houlihan and Partners on 11 th December, 2006.
11. It would appear that on 1 st November, 2006, Ms. Rosen had yet again lodged complaint forms in connection with these same issues which were already before the Tribunal.
12. On 13 th November, 2006, Ms. Duffy, wrote a letter to Ms. Rosen. It was not a temperate letter. She severely criticised Ms. Rosen's conduct at the Tribunal, in particular her alleged failure to adhere to Tribunal procedures, or to abide by directions. She stated that Ms. Rosen's conduct was "bordering on the abusive". She castigated her continued interruptions. She referred to letters "allegedly" signed by a number of other complainants after the hearing on 16 th October, 2006, requesting that their cases be heard by a different Equality Officer. She warned Ms. Rosen that she considered her behaviour as obstructing the Tribunal in its investigation and decision making process and that if such behaviour continued she would be asked to leave the hearings. She referred Ms. Rosen to s. 37 of the ESA 2000, which renders it a punishable offence for a person to obstruct or impede the Director or Equality Officer in the exercise of...
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