Dublin Corporation v Hamilton

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Geoghegan
• Judgment Date: 01 January 1999
• Neutral Citation: [1998] IEHC 99
• Date: 01 January 1999
• Docket Number: No. 480 S.S./1998,[1998 No. 480 S.S.]

[1998] IEHC 99

THE HIGH COURT

No. 480 S.S./1998

LORD MOYOR OF DUBLIN v. HAMILTON

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT,1875

(19&20 Vict. c. 43) AS EXTENDED BY SECTION 52 (1) OFTHE COURTS

(SUPPLEMENTAL PROVISIONS) ACT, 1961AND

IN THE MATTER OF SECTION 62 OF THE HOUSING ACT, 1966AS AMENDED

BY SECTION 13 OF THE HOUSING ACT, 1970BETWEEN THE RIGHT

HONOURABLE THE LORD MAYOR ALDERMAN AND BURGESSES OFDUBLIN

PLAINTIFF

AND

AMANDA HAMILTON

DEFENDANT

Citations:

HOUSING ACT 1966 S62(1)

HOUSING ACT 1988 S9

HOUSING ACT 1988 S10

HOUSING ACT 1988 S11

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

HOUSING ACT 1970 S13

O'ROURKE, STATE V KELLY 1983 IR 58

DUBLIN CORPORATION V MCDONNELL 1946 IJ 18

LANDLORD & TENENT (IRL) ACT 1860 S86

LANDLORD & TENENT (IRL) ACT 1860 S87

LANDLORD & TENENT (IRL) ACT 1860 S88

Synopsis

- [1999] 2 IR 486 - [1998] 2 ILRM 542

1 Judgment of Mr. Justice Geoghegandelivered the 19th day of June, 1998

2 This is a consultative case stated by Judge Crowley, a Judge of the District Court. The Case arises out of proceedings before the District Court under Section 62(1) of the Housing Act, 1966(as amended) for a warrant for possession under that Section. The case stated sets out that what might be described as the usual formal proofs were complied with. But it was submitted on behalf of the Defendant that that was not sufficient. Her Counsel made the following submissions as set out in the case stated:-

3 a "(a) Consideration of whether a demand for possession has been duly made is not confined to the requirements set out in Section 62 of the 1966 Act but must also include the statutory duties set out in Sections 9 to 11 of the 1988 Act and have regard to the constitutional rights of the Defendant as specified here under.

4 (b) The Plaintiff has a statutory duty to provide the Defendant with housing, which said duty arises from Sections 9 to 11 of the Housing Act, 1988(hereinafter referred to as the 1988 Act). In seeking to evict the Defendant from her dwelling for no justifiable cause and without the provision of alternative accommodation, the Plaintiff is in breach of its said statutory duties. The District Judge, in deciding whether to issue the warrant sought by the Plaintiff, must consider whether the grant of the warrant would bring about or facilitate a breach of the Plaintiff's said statutory duty. If the District Judge finds that the issue of the warrant would bring about a breach of statutory duty, he cannot be satisfied that the demand for possession was duly made, as required by Section 62(1) of the 1966 Act. The Judge must read the 1966 Act and the 1988 Act together as one enactment and must furthermore consider the entirety of the legislation in deciding whether a demand for possession has been duly made.

5 (c) The Plaintiff has a duty to act in a manner which does not infringe the Defendant's constitutional rights and, in particular, her personal rightsas guaranteed by Article 40.1 and 40.3 of the Constitution. Furthermore, the District Court has a duty to defend and, in the case of infringement, vindicate the constitutional rights of any citizen who comes before him. The Defendant contests that a number of her constitutional rights have been or will be affected by the actions of the Plaintiff:-

6 i "(i) her right to equal treatment as guaranteed by Article 40.1 of the Constitution will be infringed if she is deprived of accommodation in an arbitrary manner;

7 (ii) her right to fairness of procedure in decision making has been infringed by the Plaintiff in serving her with a notice to quit and demand for possession without having conducted a hearing of any nature;and

8 (iii) the Defendant enjoys a right to bodily integrity which incorporates a right not to have her health endangered by the Plaintiff. Any act on the pan of the Plaintiff which aims to have the Defendant removed her home without the provision of ??? adversely affect her health.

9 Counsel for the Plain??? District Judge was bound to issue the warrant once he was satisfied of the ??? was submitted that Section 62 of the 1966 Act, as amended by ??? of the 1970 Act,create a self contained scheme which allows a Housing Authority such as the Plaintiff to fulfil its obligation under the Act and the recovery of possession of dwellings and other buildings. Particular reliance is placed on the passage in Mr. Justice Keane's book on The Law of Local Government in the Republic of Ireland at page 130 which reads asfollows:-

"Since it is important for a Housing Authority to have a rapid and effective means of recovering possession of dwellings provided by them under the Act, it is not surprising to find that there is a special statutory machinery for that purpose."

10 The opinion of the High Court is sought by the learned Judge of the District Court on the following questions:-

11 (1) Having been satisfied that the notice to quit and demand for possession as the necessary proofs required by Section 62 of the Housing Act, 1966have been complied with, does the District Judge have:-

12 (a) discretion to consider any other factors in deciding whether or not to issue the warrant as sought; and

13 (b) in particular, does the District Judge have a discretion to consider the statutory provisions outlined in Sections 9 to 11 of the Housing Act, 1988?

14 (2) If this Honourable Court answers question number 1 above in the affirmative, what is the effect of such a finding on an application pursuant to Section 62 of the Housing Act, 1966?

15 (3) Having been satisfied that the notice to quit and demand for possession as the necessary proofs required by Section 62 of the Housing Act, 1966have been complied with, should the District Judge consider the following rights necessary in the provision of housing by the HousingAuthority:-

16 (a) Article 40.1 of the Constitution?

17 (b) The right to fairness of procedures in decision making?

18 (c) The right to bodily integrity?

19 (4) If this Honourable Court answers question number 3 in the affirmative, what is the effect of such a finding on an application pursuant to Section 62 of the Housing Act, 1966?

20 Section 9 of the Housing Act, 1988makes provision for regular assessments of the need for housing for people in need of such housing and in particular for certain categories as set out in the Section. Section 10 of the same Act contains additional provisions regarding accommodation for homeless persons such as permitting the Housing Authority to make arrangements with outside bodies for the provision of accommodation. Section 11 of the same Act requires a Housing Authority to make a scheme of priorities for the purposes ofthe letting of dwellings to persons in need of accommodation. Each of these sections contains quite elaborate provisions and I am merely summarising their general purport.

21 A number of authorities have been cited at the hearing but two cases are especially relevant. One is The State (O'Rourke) -v-Kelly, 1983 I.R. 58 in which the Supreme Court upheld the constitutionality of Section 62 of the Housing Act, 1966. The challenge had been made on the grounds that subsection (3) of that Section had the effect of imposing on the District Justice a mandatory obligation to issue the warrant mentioned in the Section and thereby constituted an invasion of the judicial domain by depriving the District Justice of any real judicial discretion. The Court rejected that argument and the final passage of the judgment of O'Higgins C.J. is particularly relevant and reads as follows:-

"It will be seen that it is only when the provisions of subsection (1) of Section 62 have been...