O'Donoghue v Ireland
| Jurisdiction | Ireland |
| Judge | Kearns J., |
| Judgment Date | 24 November 1999 |
| Neutral Citation | [1999] IEHC 45 |
| Court | High Court |
| Docket Number | [Bankruptcy No. 2197] |
| Date | 24 November 1999 |
[1999] IEHC 45
THE HIGH COURT
Kearns J.,
BETWEEN
AND
Citations:
BANKRUPTCY ACT 1988 S21(1)
BANKRUPTCY ACT 1988 S21(2)
BANKRUPTCY ACT 1988 S21(3)
CONSTITUTION ART 40.3.i
CONSTITUTION ART 40.3.ii
RSC O.60 r1
CONSTITUTION ART 34.1
CONSTITUTION ART 6
CONSTITUTION ART 15
CONSTITUTION ART 28
CONSTITUTION ART 34
STEEL CO V CITIZENS FOR A BETTER ENVIRONMENT 1998 66 US LW 4179
MUSKRAT V US 1911 219 US 346
LUJAN V DEFENDERS OF WILD LIFE 1992 504 US 555
WHITMORE V ARKANSAS 1990 495 US 149
LOS ANGELES V LYONS 1983 461 US 95
SIMON V EASTERN KY WELFARE RIGHTS ORGANISATION 1976 426 US 26
WARTH V SELDIN 1975 422 US 490
AG FOR AUSTRALIA V R & BOILERMAKER SOCIETY OF AUSTRALIA 1957 2 WLR 607
WATERSIDE WORKERS FEDERATION OF AUSTRALIA V JW ALEXANDER LTD 1918 25 CLR 434
REDBREAST PRESERVING CO LTD, IN RE 1957 91 ILTR 120
CONSTITUTION ART 35.1
CONSTITUTION ART 13.11
CONSTITUTION ART 35.4.1
CONSTITUTION ART 28.7
CONSTITUTION ART 34.3.2
LYNHAM V BUTLER 1933 IR 74
MCDONALD V BORD NA GCON (NO 2) 1965 IR 217
DEATON V AG 1963 IR 174
MCKAY, STATE V CORK CIRCUIT COURT 1937 IR 650
R V DAVIDSON 1954 90 CLR 353
GOULD V BROWN UNREP 2.2.1998 (AUS)
BANKRUPTCY ACT 1988 S8(5)
MURPHY V M (G) UNREP O'HIGGINS 4.6.1999
GILLIGAN V CRIMINAL ASSETS BUREAU (CAB) 1998 3 IR 185
COUNTY GLEN PLC (UNDER INVESTIGATION), IN RE 1995 1 ILRM 231
RYAN AIR LTD, IN RE 1989 ILRM 757 1989 IR 126
Synopsis
Constitutional Law
Constitutional; challenge to constitutionality of legislation; separation of powers; application to High Court for declaration that s.21(1)-(3), Bankruptcy Act, 1988, are invalid and repugnant to the Constitution; function of court during bankruptcy proceedings; whether this function constitutes the administration of justice pursuant to the Constitution; whether this function is incidental and ancillary to the administration of justice; whether s.21(1)-(3) of the 1988 Act are invalid having regard to the Constitution.
Held: Application dismissed.
O'Donoghue v. Ireland - High Court: Kearns J. - 24/11/1999 - [2000] 2 IR 168 - [2000] 2 ILRM 145
The examination of a bankrupt by the Court cannot be characterised as a judicial function. However, since the entire bankruptcy procedure is judicial and the examination is incidental or ancillary to it, it is then a function properly conferred on the Court. The mere inclusion among the functions given to the Court by the Legislature of certain powers which may not constitute the administration of justice does not render those powers unconstitutional. The High Court so held in dismissing the application.
JUDGEMENT of Kearns J., delivered on the 24th day of November 1999
By High Court Order dated the 5th day of July 1999, Ms. Justice Laffoy referred for trial by plenary hearing a net issue as follows:-
" Whether Section 21 subsections (1)(2) and (3) of the Bankruptcy Act, 1988are invalid having regard to the provisions of Article 40(3)(i) and (ii) of the Constitution".
The case put forward on behalf of the Plaintiff is encapsulated in the Notice pursuant to Order 60 Rule 1 of the Rules of the Superior Courts in the following terms:-
"... in the above entitled proceedings the bankrupt will seek a declaration that the words "the Court" in Section 21(1), (2) and (3) (i.e. at the start of (3)) of the Bankruptcy Act, 1988are invalid and repugnant to the Constitution. The grounds for such invalidity is that the examination process envisaged therein is an intrinsically administrative and inquisitorial process and cannot properly be regarded as a proper judicial function within Article 34(1) of the Constitution; imposing that function on the courts rather than on some executive agency (e.g. the Official Assignee) contravenes the separation of powers between the judicial and the executive functions. Further, putting the inquisition function into the Court and where the bankrupt will most likely be required to pay all the costs and expenses there of (e.g. Solicitors and Barristers fees) is so unnecessarily cumbersome, inefficient and extravagant that it is wholly disproportionate to the objectives of the Section; these objectives could very easily be achieved through a far more convenient, expeditious and economical means, e.g. examination by Official Assignee in his office, it will be contended that the court should substitute "the Official Assignee" for the words "the Court".
At the commencement of the hearing before this court the Plaintiff's arguments were limited to the alleged conflict with Article 34.1 of the Constitution and no evidence was led to support the contention that some other form of enquiry would be less expensive than that provided for by the current regime.
Section 21 of the Bankruptcy Act, 1988provides as follows:-
2 " (1) The Court may summon before it a bankrupt or any person who is known or suspected to have in his possession or control any property of the bankrupt or to have disposed of any property of the bankrupt or who is supposed to be indebted to the bankrupt, or any person who the Court deems capable of giving information relating to the trade, dealings, affairs or property of the bankrupt.
(2) The Court may examine him on bath concerning the matters aforesaid, either orally or written interrogatories, and may reduce his answers to writing and require him to sign them.
(3) The Court may required him to produce any books of account and papers in his possession or control relating to the matters aforesaid but, where he claims any lien on books or papers produced by him, the production shall be without prejudice to that lien and the Court may determine all questions in relation to the lien."
Article 34.1 of the Constitution provides:-
" Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public."
In the course of legal argument, reference was also made to Article 6 of the Constitution which provides as follows:-
2 " (1) All powers of government, legislative, executive and judicial derive, under God from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy according to the requirements of the common good.
(2) These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution."
Articles 15, 28 and 34 of the Constitution assign the powers of government respectively to the legislature, the executive and the judiciary and afford each of those organs of State a certain degree of sovereignty within their respective spheres. However, it is common case that absent from the Constitution is any definition of what constitutes each power of government.
In bringing this application, the Plaintiff accepts that this process of examination has been treated as part of the administration of justice for many centuries. As far back as 1603, an English Act provided for the examination of a bankrupt and the imposition of penalties for refusal to appear, answer, etc. In Ireland legislation exists at least as far back as 1836 when legislation provided that the commissioners could summon a bankrupt and his wife and examine them and such a person could be committed if he refused to be sworn.
Despite this unpromising backdrop, the Plaintiff nonetheless submits that quite clearly what is envisaged under Section 21 is a purely administrative function lacking the essential elements of matters typically regarded as justiciable.
The Irish Constitution, it is submitted, drew heavily from the concept of separation of powers enshrined at Article III of the Constitution of the United States which provides that the judicial power of the United States shall be vested in one supreme Court and in such inferior Courts as the Congress might from time to time ordain and establish. The said Article further provides that judicial power shall extend to all cases in law and equity arising under the Constitution and laws of the United States.
Dr. Ford referred the Court to a case of Steel Company -v- Citizens for a Better Environment (reported in United States Law Week 66 LW 4179) (1998) which was a decision of the United States Court of Appeals for the seventh circuit and the following extract from the judgment of Justice Scalia:-
" Article 3, (2) of the Constitution extends the "judicial power" of the United States only to "cases" and "controversies". We have always taken this to mean cases and controversies of the sort traditionally amenable to and resolved by the judicial process. Muskrat -v- United States, Supra at 356–357. Such a meaning is fairly implied by the text, since otherwise the purported restriction upon the judicial power would scarcely be a restriction at all. Every criminal investigation conducted by the executive is a "case", and every policy issue resolved by Congressional legislation involves a "controversy". These are not, however, the sort of cases and controversies that Article 3(2), refers to since "the Constitution's central mechanism of separation of powers depends largely upon common understanding of what activities are appropriate to legislatures, to executives and to courts". Lujan -v- Defenders of Wild Life, 504 U.S. 555, 559 - 560 (1992). Standing to sue is part of the common understanding of what it takes to make a justiciable case. Whitmore -v- Arkansas, ...
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