Desmond v Glackin (No. 2)

JurisdictionIreland
CourtSupreme Court
Docket Number[S.C. Nos. 97 and 110 of 1992]
Date01 January 1993

High Court

Supreme Court

Supreme Court

[S.C. Nos. 97 and 110 of 1992]
Desmond v. Glackin (No. 2)
Dermot Desmond and Dedeir
Applicants
and
John A. Glackin, The Minister for Industry and Commerce, Ireland and The Attorney General, Respondents (No. 2)

Cases mentioned in this report:—

Chestvale Properties Ltd. v. Glackin [1993] 3 I.R. 35; [1992] I.L.R.M. 221.

Chestvale Properties v. Glackin (No. 2) (Unreported, High Court, Murphy J., 10th March, 1992).

Conroy v. The Attorney General [1965] I.R. 411.

Delaney v. Ireland [1980] I.L.R.M. 167.

East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General[1970] I.R. 317; (1970) 104 I.L.T.R. 81.

Fitzgerald v. Trustee Savings Bank (Unreported, High Court, Costello J., 4th May, 1992).

Glackin v. Trustee Savings Bank [1993] 3 I.R. 55.

In re Haughey [1971] I.R. 217.

Kennedy v. Ireland [1987] I.R. 587; [1988] I.L.R.M. 472.

King v. The Attorney General [1981] I.R. 140.

Loftus v. The Attorney General [1979] I.R. 221.

Lyons and others v. Curran (Reported subsequently at [1993] I.L.R.M. 375).

McClelland Cope and Langley Ltd. v. Howard [1968] 1 All E.R. 569.

MacDaid v. Judge Sheehy [1991] 1 I.R. 1; [1991] I.L.R.M. 250.

McDonald v. Bord na gCon (No. 2) [1965] I.R. 217.

McGee v. The Attorney General [1974] I.R. 284; (1975) 109 I.L.T.R. 29.

MacMahon v. Leahy [1984] I.R. 525.

Maher v. The Attorney General [1973] I.R. 140.

Marcel and others v. Commissioner of Police of the Metropolis [1991] 2 W.L.R. 1118; [1991] 1 All E.R. 845 (H.C.); [1992] 2 W.L.R. 50; [1992] 1 All E.R. 72 (C.A.).

Norris v. The Attorney General [1984] I.R. 36.

Probets v. Glackin [1993] 3 I.R. 134.

R. v. R. [1984] I.R. 296.

Salomon v. Salomon & Co. Ltd. [1897] A.C. 22; 66 L.J. Ch. 35; 75 L.T. 426; 13 T.L.R. 46; 41 S.J. 63; 4 Mans. 89; 45 W.R. 193.

The State (C.) v. The Minister for Justice [1967] I.R. 379; (1967) 102 I.L.T.R. 177.

The State (Director of Public Prosecutions) v. Walsh [1981] I.R. 412.

The State (Kane) v. The Governor of Mountjoy Prison [1987] I.R. 757; [1988] I.L.R.M. 724.

The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642; [1987] I.L.R.M. 202.

The State (Lynch) v. Cooney [1982] I.R. 337.

The State (Sheerin) v. Kennedy [1966] I.R. 379.

The State (Sheerin and others) v. The Governor of St. Patrick's Institution [1986] I.R. 379.

Tormey v. Ireland [1985] I.R. 289.

Ward v. Kinehan Electric Ltd. [1984] I.R. 292.

Company law - Inspector - Statutory powers - Scope - Investigation - Applicant questioned in relation to personal business affairs and affairs of companies not under investigation - Whether questions ultra vires - Whether breach of applicant's right to privacy - Companies Act, 1990 (No. 33), s. 9, s. 10, sub-s. 2, s. 14, sub-ss. 1 and 5 - Constitution of Ireland, 1937, Article 40. s. 3.

Company law - Inspector - Warrant of appointment - Appointment by Minister - Investigation stated to be "in the public interest" - Whether warrant invalid for failure to specify nature of public interest - Companies Act, 1990 (No. 33), s. 14, sub-s. 2 (c).

Central Bank - Information coming into hands of bank acting as agent for Minister for Finance - Whether Minister entitled to divulge information to another Minister - Whether inspector appointed pursuant to Companies Act, 1990, entitled to use information so obtained for purposes of investigation - Whether breach of duty of confidentiality - Exchange Control Act, 1954 (No. 30), s. 28. - Central Bank Act, 1989 (No. 16), s. 16, sub-ss. 1 and 2.

Constitution - Statute - Validity - Inspector appointed to investigate affairs of company - Refusal of applicant to answer questions - Statute authorising inspector to certify refusal to court and empowering the High Court, following a hearing, to punish offender in like manner as if he had been guilty of contempt of court - Right to trial by jury - High Court - Jurisdiction - Whether statutory provision invalid having regard to the provisions of the Constitution - Locus standi - Doctrine of severance - Companies Act, 1990 (No. 33), s. 10, sub-s. 5 - Constitution of Ireland, 1937, Article 38, ss. 1, 2 and 5 and Article 15, s. 4, sub-s. 3.

Judicial review.

The facts have been summarised in the headnote and are fully set out in the judgments, post.

On the 16th December, 1991, on the ex parte application of the applicants, leave was given by the High Court (Flood J.) to apply by way of judicial review for the following reliefs:—

  • 1. An order of certiorari quashing the warrant of appointment of the first respondent given under the official seal of the second respondent on the 9th October, 1991, on the grounds that the same was bad on the face of it in failing to disclose the nature of the public interest which justified the warrant.

  • 2. In the alternative an order of mandamus directing the second respondent to disclose the said public interest which justified the appointment of the first respondent as inspector.

  • 3. An order prohibiting the first respondent as inspector appointed pursuant to the provisions of s. 14 of the Companies Act, 1990, from continuing his investigation into Chestvale Properties Ltd. and Hoddle Investments Ltd. while seeking information as to:—

    • (a) the personal business affairs of the applicants;

    • (b) the business affairs of Freezone Investments Ltd. and Colin Probets; and

    • (c) business transactions between the second applicant and Freezone Investments Ltd.

  • 4. An order prohibiting the first respondent as inspector from continuing his investigation while continuing to make use of information obtained from the Central Bank in breach of the Central Bank Acts, 1942 to 1989.

  • 5. Declarations that the extent to which the first respondent had, in purported exercise of his powers, made inquiry into and sought assistance from the first applicant [in relation to certain matters] was ultra vires and in excess of his powers, and that the first respondent was not entitled to proceed to make further enquiries or seek further assistance from the applicant or any other party in relation to those matters.

  • 6. A declaration that s. 10, sub-s. 5 of the Companies Act, 1990, was invalid having regard to the provisions of the Constitution of Ireland, 1937, and in particular, to Articles 38 and 40 thereof.

  • 7. Declarations that the first and second respondents had acted in breach of the Central Bank Acts, 1942 to 1989, in obtaining information relating to R. & J. Emmet plc and Freezone Investments Ltd.

  • 8. An injunction to restrain the first respondent from making any use whatsoever of the information obtained from the Central Bank, i.e., by publication of the said information, and a mandatory injunction directing the first respondent to return all of the said information to the Central Bank.

Following the filing on the 7th January, 1992, of a statement of opposition, the application for judicial review was heard by the High Court (O'Hanlon J.) on the 21st, 22nd, 23rd, 24th, 27th and 28th January, 1992.

The applicants appealed by notice of appeal dated the 24th March, 1992, against so much of the judgment and order of the High Court (O'Hanlon J.) as refused all reliefs by way of judicial review other than a declaration of the invalidity of s. 10, sub-s. 5 of the Act of 1990, and a cross-appeal was filed by the respondents against so much of the order as found portion of s. 10, sub-s. 5 of the Act of 1990 to be repugnant to the Constitution of Ireland, 1937.

The appeal was heard by the Supreme Court (Finlay C.J., Hederman, McCarthy, O'Flaherty and Egan JJ.) on the 13th, 14th, 15th and 16th July, 1992.

Article 38 of the Constitution of Ireland, 1937, provides, inter alia, as follows:—

"1. No person shall be tried on any criminal charge save in due course of law.

2. Minor offences may be tried by courts of summary jurisdiction.

5. Save in the case of the trial of offences under section 2 . . . of this Article no person shall be tried on any criminal charge without a jury."

Article 15, s. 4, sub-s. 2 of the Constitution provides:—

"Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid."

Section 14 of the Companies Act, 1990, provides:—

"(1) The Minister may, subject to subsection 2, appoint one or more competent inspectors to investigate and report on the membership of any company and otherwise with respect to the company for the purpose of determining the true persons who are or have been financially interested in the success or failure (real or apparent) of the company or able to control or materially to influence the policy of the company.

(2) An appointment may be made by the Minister if he is of the opinion that there are circumstances suggesting that it is necessary- . . .

  • (c) in the public interest."

Section 10 of the Act of 1990 provides, inter alia, as follows:—

"(2) If the inspectors consider that a person other than an officer or agent of the company . . . is or may be in possession of any information concerning its affairs, they may require that person to . . . attend before them and otherwise to give them all assistance in connection with the investigation which he is reasonably able to give; and it shall be the duty of that person to comply with the requirement.

(5) If any officer or agent of the company or other body corporate or any such person as is mentioned in subsection 2 refuses to produce to the inspectors any book or document which it is his duty under this section so to produce, refuses to attend before the inspectors when required so to do or refuses to answer any question which is put to him by the inspectors with respect to the affairs of the company or other body corporate as the case may be, the inspectors may certify the refusal under their hand to the court, and the court may thereupon enquire into the case and, after hearing any witnesses who may...

To continue reading

Request your trial
33 cases
  • Gama Endustri Tesisleri Imalat Montaj A.S. and Gama Construction Ireland Ltd v The Minister for Enterprise, Trade and Employment and Edward Nolan
    • Ireland
    • High Court
    • 14 June 2005
    ...express powers given to labour inspector - Kennedy v Law Society of Ireland (No 3) [2002] 2 IR 458 followed; Desmond v Glackin (No 2) [1993] 3 IR 67 distinguished - Industrial Relations Act 1969 (No 14), ss 10, 12 - Industrial Relations Act 1990 (No 19), s 52 - Payment of Wages Act 1991 (......
  • Gama Endustri Tesisleri Imalat Montaj A.S. v Minister for Enterprise, Trade and Employment
    • Ireland
    • Supreme Court
    • 30 April 2009
    ...MINIMUM WAGE ACT 2000 ORGANISATION OF WORKING TIME ACT 1997 INDUSTRIAL RELATIONS ACT 1969 S12(2) DESMOND & DEDEIR v GLACKIN & ORS (NO 2) 1993 3 IR 67 1992/6/1627 KENNEDY v LAW SOCIETY OF IRELAND & ORS 2002 2 IR 458 2001/13/3693 CASSIDY v MIN FOR INDUSTRY 1978 IR 297 MORRIS v DIRECTOR OF ......
  • Dunnes Stores Ireland Company v Maloney
    • Ireland
    • High Court
    • 18 November 1998
    ...and her refusal to do so, nonetheless, in my view, on the authority of the decision of the Supreme Court in Desmond -v- Glackin (No. 2) [1993], 3 I.R. 67, she has locus standi to challenge the validity of the appointment of the authorised officer and any action on foot THE ORDER 106 The on......
  • Redmond v Minister for the Environment
    • Ireland
    • High Court
    • 31 July 2001
    ...from the remainder of those Acts, such a severance leaving intact the remaining provisions of those Acts. Desmond v. Glackin (No. 2) [1993] 3 I.R. 67 applied. Cases mentioned in this report:- Bullock v. Carter (1972) 405 U.S. 134. Cahill v. Sutton [1980] I.R. 269. Cox v. Ireland [1992] 2 I.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT