Duggan v an Taoiseach

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 01 January 1989
• Neutral Citation: 1989 WJSC-HC 110
• Docket Number: No. 10/1988
• Date: 01 January 1989

1989 WJSC-HC 110

THE HIGH COURT

No. 10/1988

DUGGAN v. AN TAOISEACH

JUDICIAL REVIEW

BETWEEN:

JAMES DUGGAN, WILLIAM O'DONOVAN, GERARD O'BRIEN, BERNARDHOEY, MALACHY SMITH, CONOR O'MALLEY, PADRAIG WHITNEY, JAMES RYAN,PATRICK FINGLETON, FRANCIS STRUMBLE, WILLIAM BOILSON, AIDAN, McTIERNAN,ENDA FALLON, AIDAN MULLANEY, BRENDAN MAHON, DAVID MORGAN, FRANCISHAYDEN, PATRICK TAFFE, MICHAEL HOLLAND, JAMES NEARY, JOHN O'ROURKE, JOHNFURLONG, THOMAS GRIFFEN, TERENCE CUNNINGHAM, NIALL O'MAHONEY, EDWARDO'DOHERTY, GERARD COEN, PETER O'CONNELL, MAURICE CLANCY, ANTHONY DOODY,WILLIAM MEADE, DENIS COLLINS, PATRICK REGLEY, PATRICK HYLAND, PETERO'MALLEY, MARTIN FLATLEY, SEAN BOURKE, PATRICK CLAFFEY, JOHN BOURKE,JOHN DUFFY, JOSEPH RYAN, JAMES MULLIGAN, COLM TUOHY, KIERAN BRANDON,THOMAS EGAN, PATRICK DOLAN, JOHN PRENDERGAST, JAMES DILLON, DONALHARNEY, AIDAN BARRY, SEAN HANLEY, MICHAEL FITZGERALD, JOHN O'CONNOR,CHRISTOPHER QUINN, JOSEPH HEFFRON, VINCENT MURPHY, TOM DEA, OLIVERO'ROURKE, SEAN BOLAND, EDWARD HEALY, MICHAEL CLABBY, JOHNNOONAN

Applicants

and

AN TAOISEACH AND THE MINISTER FOR THE GAELTACHT, AN TANAISTEAND THE MINISTER FOR FOREIGN AFFAIRS, THE MINISTER FOR FINANCE AND THEMINISTER FOR PUBLIC SERVICE, THE MINISTER FOR HEALTH, THE MINISTER FORJUSTICE, THE MINISTER FOR EDUCATION, THE MINISTER FOR DEFENCE, THEMINISTER FOR AGRICULTURE AND FOOD, THE MINISTER FOR THE ENVIRONMENT, THEMINISTER FOR LABOUR, THE MINISTER FOR SOCIAL WELFARE, THE MINISTER FORENERGY AND COMMUNICATIONS, THE MINISTER FOR INDUSTRY AND COMMERCE, THEMINISTER FOR TOURISM AND TRANSPORT, THE MINISTER FOR THE MARINE ANDTHOMAS GERARD FAHY.

Respondents

Citations:

FARM TAX ACT 1985 S14(1)

FARM TAX ACT 1985 S4(1)

FARM TAX ACT 1985 S9(1)

FARM TAX ACT 1985 S4

FARM TAX ACT 1985 S7

FARM TAX ACT 1985 S17

FARM TAX ACT 1985 S20

FARM TAX ACT 1985 S14(4)

FARM TAX ACT 1985 S14(7)

CONSTITUTION ART 15.2.1

CAHILL V SUTTON 1980 IR 269

CIVIL SERVICE COMMISSIONER'S ACT 1956 S20

FARM TAX ACT 1985 S14(8)

CCSU V MIN CIVIL SERVICE 1984 3 AER 935

WEBB V IRELAND 1988 ILRM 565, 1988 IR 353

AMALGAMATED INVESTMENT V TEXAS COMMERCE 1982 QB 84, 1981 3 WLR, 1981 3 AER 577

INLAND REVENUE COMMISSIONERS & NATIONAL FEDERATION OF SELF-EMPLOYED & SMALL BUSINESSES LTD 1982 AC 617 1981 2 WLR 1981 2 AER 93

ARSENAL FC V ENDE 1979 AC 1

FARM TAX ACT 1985 S9

CONSTITUTION ART 28.2

CROTTY V AN TAOISEACH 1987 ILRM 400, 1987 IR 713

Synopsis:

PRACTICE

Parties

Locus standi - Government - Executive power - Exercise - Claim by citizen that decision unlawful - Test of claimant's standing - Test similar to challenge to validity of enactment of Oireachtas - ~See~ Constitution, legislation - (1988/1O JR - Barrington J. - 11/4/88) 1989 ILRM 710

|Duggan v. An Taoiseach|

GOVERNMENT

Duty

Legislation - Execution - Failure - Executive power - Implementation of statutory provisions discontinued by direction of Government - Unrepealed enactment - Termination of temporary appointment of civil servant - Claim to damages - ~See~ Constitution, legislation - (1988/1O JR - Barrington J. - 11/4/88) 1989 ILRM 710

|Duggan v. An Taoiseach|

CONSTITUTION

Legislation

Oireachtas - Exclusive powers - Government - Duty to execute laws - Breach - Civil servant - Office holder - Appointment - Temporary post - Termination - Illegality - Damages - Statutory provisions - Administrative appointments made pursuant to statute - Implementation of statutory provisions discontinued by direction of government - Appointments terminated - Statute unrepealed - ~Locus standi~ of citizen to challenge exercise of executive power of government - Article 15.1.2 of the Constitution states:- "The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State" - The Act of 1985 was enacted on 2/7/85 - Section 14, sub-s. 1, of the Act directs the establishment of the office of Farm Tax Commissioner "for a period of five years" or such longer as may be prescribed by the Minister for Finance, and states that the holder of that office shall be known as the Farm Tax Commissioner - Section 4 sub-s. 1, of the Act directs the Commissioner to compile a list of every agricultural land holding in the State - Section 9, sub-s. 1, of the Act states that there shall be charged, levied and paid for each year, beginning with such year as may prescribed, in respect of every taxable farm a tax to be called farm tax - The applicants were inspectors of the Irish Land Commission who had been posted to various Government departments and offices - They were selected to administer the operation of the Farm Tax Office when the Act of 1985 was enacted - In September, 1985, the applicants were invited by the Farm Tax Commissioner to apply for transfers to positions in the Farm Tax Office "for a minimum period of 5 years" - The applicants were promoted to the posts of inspectors, Grade I, in the office of the Commissioner with effect from 4/1O/85 in an acting capacity - In accepting his transfer and promotion to the said post, each each applicant acknowledged that his appointment to the post was temporary and that, in the event of his appointment being terminated, he would revert to the point on his substantive grade which he would have reached if he had continued on that scale, and that he would not be entitled to any other increase in his substantive salary or to any compensation for the termination of his acting rank - On 31/3/87 the Minister for Finance announced that the Government had decided that the farmers should pay tax on the basis of their incomes and that, therefore, farm tax for the year 1987 would not be collected; he stated that it was the intention of the government to repeal the legislation relating to farm tax - On 1/4/87 the applicants were instructed to cease performing the classification work on which they were engaged for the purpose of the collection of farm tax - After several extensions the said temporary appointments were terminated on the 15/1/88 - Having obtained leave on the 18/1/88 the applicants applied to the High Court for judicial review of the decisions terminating their appointments to the Farm Tax Office - The respondents were members of the Government and the said Commissioner - The Act of 1985 had not been repealed - The applicants claimed (1) a declaration that the decision of the Government to cease to charge and levy farm tax was unlawful and void, (2) a declaration that the decision of the Government to discontinue the classification of land for the purposes of the Act was unlawful and void, (3) an order of mandamus directing the respondent commissioner to perform the duties assigned to him as Farm Tax Commissioner, (4) a declaration that the decisions of the respondent commissioner to terminate the appointments of the applicants to his office were unlawful and void, (5) an order of certiorari quashing the said decisions of the respondent commissioner, (6) an injunction restraining the respondent commissioner from treating the applicants otherwise than as persons so appointed to his office, (7) an injunction directing the Government to provide the respondent commissioner with adequate resources to discharge his duties under the Act of 1985, and (8) damages - The Minister for Finance accepted that each of the applicants had ~locus standi~ to challenge the decision to terminate his appointment to his post in the Farm Tax Office, but the respondent members of the Government submitted that none of the applicants had ~locus standi~ to claim the relief sought against the Government - Held that the tests applicable to determine the ~locus standi~ of a person who seeks to establish the invalidity of an Act of the Oireachtas are applicable, in a similar manner, to a person who challenges the validity of an exercise of the executive power of government and that, accordingly, the latter must establish that his interests have been affected adversely, or are in imminent danger of being so affected, by an exercise of such executive power:~Cahill v. Sutton~ [1980] I.R. 269 considered - Held that none of the applicants had a legal right to be appointed to his post in the office of the Farm Tax Commissioner on a permanent basis or to be appointed to an established position in that grade - Held that, in the circumstances, each applicant had a reasonable and legitimate expectation that he would be continued in his temporary post in the office of the Commissioner until the work of that office, as specified in the Act of 1985, had been completed or until that work was terminated in accordance with law:~C.C.S.U. v. Minister for the Civil Service~ [1984] All E.R. 539 and ~Webb v. Ireland~ (Supreme Court - 16/12/87) considered - Held that such expectations had been frustrated by the Government's decision to cease implementing the provisions of the Act and the consequential direction to that effect issued by the respondent Commissioner to the applicants - Held that each applicant had ~locus standi~ to challenge the Government's said decision on the grounds that it was unlawful - Held that none of the applicants had ~locus standi~ to ask the courts to investigate whether or not tax should be levied pursuant to s. 9 of the Act of 1985 and that, accordingly, the applicants were not entitled to the first declaration claimed by them: ~Inland Revenue Commissioners v. National Federation of Self-Employed & Small Businesses Ltd.~ [1982] A.C. 617 considered - Held that none of the applicants had ~locus standi~ to claim the third and seventh items of relief sought by the applicants - Held that the relevant provisions of the Act of 1985 had been enacted by the Oireachtas in mandatory terms, that those provisions had not been amended or repealed, and that the Government was bound to execute them - Held that the direction given by the Minister for Finance to the respondent Commissioner to cease compiling the classified list required by...