Equality Authority v Portmarnock Golf Club and Others & Cuddy & Keane v Equality Authority and Others

JurisdictionIreland
JudgeDenham J.,Mr. Justice Hardiman,Mr. Justice Geoghegan,Mr Justice Fennelly
Judgment Date03 November 2009
Neutral Citation[2009] IESC 73
Date03 November 2009
CourtSupreme Court
Docket Number[S.C. Nos. 296 and 312
Equality Authority v Portmarnock Golf Club & Ors & Cuddy & Keane v Equality Authority & Ors
IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 AS AMENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961
Between/
THE EQUALITY AUTHORITY
Plaintiff/Appellant

and

PORTMARNOCK GOLF CLUB, DANIEL LYNCH, COLIN HARTNETT, T.M. HEALY, JOSEPH LEYDEN, JOSEPH McALEECE, W.P. TWANLEY and R.C. CUDDY
Defendants/Respondants

and

Between/
ROBERT C. CUDDY and DAVID KEANE
Plaintiffs/Appellant

and

EQUALITY AUTHORITY, IRELAND and THE ATTORNEY GENERAL
Defendants/Respondants

[2009] IESC 73

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Macken J.

[Appeal No: 296/2005]
Appeal No. 312/05

THE SUPREME COURT

EQUALITY

Discrimination

Discriminating club - Single gender membership - Principal purpose of club - Needs of members - Whether requirement that logical connection exist between principal purpose of club and needs of members - Whether admission of women to use club facilities meant club did not cater only for needs of men National Union of Railwaymen v. Sullivan [1947] I.R. 77 applied- Equal Status Act 2000 (No 8), ss 8 and 9 - Plaintiff's appeal dismissed (296 & 312/2005 - SC - 3/11/2009) [2009] IESC 73

Equality Authority v Portmarnock Golf Club

WORDS AND PHRASES

"Principal purpose" - "Needs" - "Cater" - Whether language used in legislation ambiguous - Equal Status Act 2000 (No 8), ss 8 and 9 - (296 & 312/2005 - SC - 3/11/2009) [2009] IESC 73

Equality Authority v Portmarnock Golf Club

Facts: The issue arose on appeal from the High Court as to whether Portmarnock Golf Club, a club permitting men only to be members, was entitled to rely on the exemption created by s. 9(1)(a) of the Equal Status Act 2000 in order to take it out of the category of "discriminating club" as outlined in s. 8 of the Act of 2000. S. 9 permitted clubs to be formed for specific groups of the community, including men, women, gay people and members of the traveling community. The concept of a "discriminating club" arose as well as the principal purpose of the club being to cater for the "needs" of its members and what those needs were. The issue of interpretation arose and the club relied on their constitutional right to freedom of association as protected by Article 40.6. Notably, whilst women could not be members of the club at issue pursuant to its rules, women were able to play golf at the club.

Held by the Supreme Court per Hardiman, Geoghegan JJ. (Macken J. concurring, Denham, Fennelly JJ. dissenting) that the nub of the dispute was the issue of "needs". The club said that it was a gentleman's golf club, a golf club for gentlemen. The ordinary natural and literal meaning of the word "needs" was that to be found in the dictionary. The extremely narrow interpretation of s. 9 as advanced by the Equality Authority was inconsistent with previous jurisprudence. It would take words of the plainest meaning to prohibit a club from engaging in any ordinary and legal activity which its members might enjoy. The legislature had seen fit to provide an exemption for clubs as to religious beliefs and those without religious beliefs. It would seem extraordinary if the members of such clubs could do nothing by way of expression of their shared views. The appeal would be dismissed and the judgment of the High Court affirmed as to s. 9(1(a). Per Geoghegan J.: the exemption became meaningless if the interpretation advanced by the Equality Authority was correct. A court could not apply a literal interpretation in a vacuum. Per Denham J. dissenting: that a literal interpretation was appropriate as to ss. 8 & 9 of the Act of 2000. The principal purpose of the golf club being golf entailed that it did not come within the scope of s. 9 of the Act of 2000. It was not thus a permitted exception to the rule against discrimination and thus was a discriminating club. The exceptions set out in s. 9 were limited. The club catered for both men and women and thus did not cater "only" for the "needs" of men. The appeal would be allowed and the finding of the District Court that the club was a discriminating club would be upheld. Per Fennelly J. dissenting: The club catered also to women and thus did not satisfy the exception requirements. The appeal would be allowed.

Reporter: E.F.

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

EQUAL STATUS ACT 2000 S8

EQUAL STATUS ACT 2000 S8(7)(A)

EQUAL STATUS ACT 2000 S9(1)(A)

EQUAL STATUS ACT 2000 S8(3)

EQUAL STATUS ACT 2000 S9

EQUAL STATUS ACT 2000 S10

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

CONSTITUTION ART 40.6.1

CONSTITUTION ART 43

EQUAL STATUS ACT 2000 S3

EQUAL STATUS ACT 2000 S4

EQUAL STATUS ACT 2000 S5(1)

EQUAL STATUS ACT 2000 S5(2)(A)

EQUAL STATUS ACT 2000 S5(2)(G)

EQUAL STATUS ACT 2000 S5(2)(H)

EQUAL STATUS ACT 2000 S5(2)(I)

EQUAL STATUS ACT 2000 S6

EQUAL STATUS ACT 2000 S7

EEC DIR 2004/113 RECITAL 1

EEC DIR 2004/113 RECITAL 16

EQUAL STATUS ACT 2000 S8(2)(A)

EQUAL STATUS ACT 2000 S8(2)(B)

EQUAL STATUS ACT 2000 S3(2)

HOWARD & ORS v CMRS OF PUBLIC WORKS IN IRELAND 1994 1 IR 101

CRAIES & EDGAR CRAIES ON STATUTE LAW 7ED 65

B (D) v MIN FOR HEALTH & HEPATITUS C COMPENSATION TRIBUNAL 2003 3 IR 12 2003/4/812

CONCISE OXFORD DICTIONARY OF CURRENT ENGLISH 8ED 1990

TAXES CONSOLIDATION ACT 1997 S235

EQUAL STATUS ACT 2000 S9(1)(A)(i)

NATIONAL UNION OF JOURNALISTS & ORS v SISK & O MUIRI 1992 2 IR 171 1992 ILRM 96

EMPLOYMENT EQUALITY ACT 1998 S56

MEREDITH WANTED: SINGLE-SEX ZONES FOR OUR SANITY IRISH TIMES 4.3.2005

RHODE ASSOCIATION & ASSIMILATION 1986 81 NWULR 106

EQUAL STATUS ACT 2000 S2

EQUAL STATUS ACT 2000 S3(1)

EQUAL STATUS ACT 2000 S4(1)

EQUAL STATUS ACT 2000 S3(2)

EQUAL STATUS ACT 2000 S8(7)

EQUAL STATUS ACT 2000 S9(1)

EQUAL STATUS ACT 2000 S3(2)(H)

CONSTITUTION ART 26

EMPLOYMENT EQUALITY BILL 1996, IN RE 1997 2 IR 321 1998/18/6758

EQUAL STATUS BILL 1997, IN RE 1997 2 IR 387 1998/18/6878

EQUAL STATUS ACT 2000 S5(2)(F)

CONSTITUTION ART 40.6

NATIONAL UNION OF RAILWAYMEN & ORS v SULLIVAN & ORS 1947 IR 77

BENNION STATUTORY INTERPRETATION 858-866

HALKI SHIPPING CORP v SOPEX OILS LTD (THE HALKI) 1998 2 AER 23 1998 1 WLR 726

MULLINS v JUDGE HARNETT & DPP 1998 4 IR 426 1998 2 ILRM 304 1998/26/10487

DPP (BRODERICK) v FLANAGAN 1979 IR 265 1980 114 ILTR 34

DODD STATUTORY INTERPRETATION IN IRELAND 2008

EQUAL STATUS ACT 2000 S5(2)(B)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 11

SIGURJONSSON v ICELAND 1993 16 EHRR 462

YOUNG & ORS v UNITED KINGDOM 1982 4 EHRR 38 1982 ECC 264

WILSON & ORS v UNITED KINGDOM 2002 35 EHRR 20

EEC DIR 2004/113 RECITAL 3

EEC DIR 2004/113 RECITAL 13

EEC DIR 2004/113 RECITAL 16

HOWARD & ORS v CMRS OF PUBLIC WORKS 1994 1 IR 101 1993 ILRM 665

EQUAL STATUS ACT 2000 S8(2)(B)(i)

REGISTRATION OF CLUBS (IRL) ACT 1904 S1

REGISTRATION OF CLUBS (IRL) ACT 1904 S2

REGISTRATION OF CLUBS (IRL) ACT 1904 S4(K)

INTOXICATING LIQUOR ACT 1988 S42

EQUAL STATUS ACT 2000 S39

EQUAL STATUS ACT 2000 SCHED

MCDAID v JUDGE SHEEHY & ORS 1991 1 IR 1

1

In the High Court two cases, which arise out of the same set of facts, were taken together. There were two principal issues: (i) the interpretation of sections of the Equal Status Act, 2000, and (ii) the constitutionality of the Equal Status Act, 2000.

2

This Court decided to proceed first on the issue of statutory interpretation, which is essentially the issue arising on the case stated from Mary Collins, Judge of the District Court. However, because the issues are somewhat interlinked, while the State is not a party to the case stated, the Court indicated that it would hear any submissions which the State wished to make on the interpretation of the Equal Status Act, 2000, referred to as "the Act of 2000".

Case Stated
3

The case stated arose pursuant to s.2 of the Summary Jurisdiction Act 1857, as extended by s.51 of the Courts (Supplemental Provisions) Act, 1961. At sittings of the District Court, at Court 54, Richmond Hospital, North Brunswick Street, Dublin 7, on the 28 th November, 2003, and at Court 40, Dolphin House, Dublin 2, on the 19 th January, 2004, Portmarnock Golf Club, Daniel Lynch, Colin Harnett, T.M. Healy, Joseph Leyden, Joseph McAleece, W.P. Twamley and R.C. Cuddy, the defendants/respondents, and hereinafter referred to as "Portmarnock", appeared to answer a complaint by The Equality Authority, the plaintiff, and hereinafter referred to as "the Authority".

4

The complaint was made pursuant to s.8 of the Act of 2000. The Authority sought a determination of the court that Portmarnock is a discriminatory club for the purpose of s.8 of the Act of 2000, and for an order suspending the certificate of registration of the Club for a period not exceeding thirty days.

5

Evidence was given to the District Court on behalf of Portmarnock by the Secretary Manager of the Club and the Captain of the Club. Facts were proved, admitted or agreed, and held by the District Court, as follows.

Facts
6

Portmarnock, founded in 1894, is one of the oldest golf clubs in Ireland and is affiliated to the Golfing Union of Ireland, the body which regulates men's golf in Ireland.

7

Portmarnock has for many years been the holder of a certificate of registration under the Registration of Clubs Act, 1904 to 1999, referred to herein as a "drinks licence", and during that time has not been the subject of complaint or prosecution by An Garda Síochána in respect of the provision of intoxicating liquor on its premises.

8

Evidence was given that there were 662 members and 625 associate members of Portmarnock, all of whom are men. Under its rules, since it was established in 1894, Portmarnock consists of members and...

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12 cases
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    ...is or was’ concerned in the management and this is impermissible. Reliance was placed on Equality Authority v. Portmarnock Golf Club [2010] 1 I.R. 671 in that regard. 27 Third, a number of other provisions in the Act use present tense definitions which shows that the legislature intended th......
  • Cahill v The Minister for Education and Science
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    ...that any departure from the literal approach to interpretation should be taken, citing Equality Authority v. Portmarnock Golf Club [2010] 1 I.R. 671. The function of the Court on an appeal under s. 28(3) 19 An important aspect of the Stokes case is that the function of the Court on an appe......
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    ...discussed freedom of association, as a pre-existing natural right inhering in humankind, in Equality Authority v. Portmarnock Golf Club [2010] I.R. 671, he was discussing the Article 40.6.1(iii) right in the context of freedom of speech, to organise for industrial purposes, take part in ele......
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2 books & journal articles
  • Green jackets in men's sizes only: gender discrimination at private country clubs.
    • United States
    • Vanderbilt Journal of Transnational Law Vol. 44 No. 3, May 2011
    • 1 May 2011
    ...*1 (Conn. Super. Ct. Aug. 12, 1998); State v. Burning Tree Club, Inc., 554 A.2d 366 (Md. 1989); Equal. Auth. v. Portmarnock Golf Club, [2009] I.E.S.C. 73 (Ir.), available at (6.) Equal. Auth., [2009] I.E.S.C. 73. (7.) R&A Defends All Male Policy, supra note 2. (8.) See Warfield, 896 P.2......
  • Goods and services (Directive 2004/113)
    • European Union
    • Country report, gender equality. How are EU rules transposed into national law? Ireland 2020
    • 18 September 2020
    ...Authority v Portmarnock Golf Club and Others and Robert C. Cuddy and David Keane, Ireland and the Attorney General [2005] IEHC 235, [2009] IESC 73 and see Section 9.5 (below). 236In the Matter of Section 2 of the Summary Jurisdiction Act, 1857 as amended by Section 51 of the Courts (Supplem......

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