G.v.M. Exports Ltd v Ireland and Others

• Jurisdiction: Ireland
• Judge: Justice William M. McKechnie
• Judgment Date: 28 July 2010
• Neutral Citation: [2010] IEHC 323
• Court: High Court
• Docket Number: Record No.: 843P/2005
• Date: 28 July 2010

[2010] IEHC 323

THE HIGH COURT

Record No.: 843P/2005

Record No.: 745JR/2003

GVM Exports Ltd (In Voluntary Liquidation) v Ireland & Ors

Between:

G.V.M. EXPORTS LIMITED (IN VOLUNTARY LIQUIDATION)

Plaintiff

-and-

IRELAND, THE ATTORNEY GENERAL AND THE MINISTER FOR AGRICULTURE, FOOD AND RURAL DEVELOPMENT

Defendants

G.V.M. EXPORTS LIMITED (IN VOLUNTARY LIQUIDATION)

Applicant

-and-

THE MINISTER FOR AGRICULTURE, FOOD AND RURAL DEVELOPMENT

Respondent

-and-

DISTRICT JUDGE MARY O'HALLORAN

Notice Party

HAYES v IRELAND & ORS UNREP MCKECHNIE 18.6.2010 2010 IEHC 325

BRUCELLOSIS IN CATTLE (GENERAL PROVISIONS) ORDER 1991 SI 114/1991 ART 2

BRUCELLOSIS IN CATTLE (GENERAL PROVISIONS) ORDER 1991 SI 114/1991 ART 18

BRUCELLOSIS IN CATTLE (GENERAL PROVISIONS) (AMDT) ORDER 1998 SI 39/1998 ART 2

DISEASES OF ANIMALS ACT 1966 S48(1)(A)

COMPANIES ACT 1963 S379

EUROPEAN COMMUNITIES (IDENTIFICATION & REGISTRATION OF BOVINE ANIMALS) REGS 1999 SI 276/1999 REG 2

EEC REG 820/97 ART 2

EEC REG 820/97 ART 4

DISEASES OF ANIMALS ACT 1966 S48

DISEASES OF ANIMALS ACT 1966 S49

BOVINE DISEASES (LEVIES) ACT 1979 S23(B)

BOVINE DISEASES (LEVIES) (AMDT) ACT 1996 S7(1)(B)

EUROPEAN COMMUNITIES ACT 1972 S3(3)

EUROPEAN COMMUNITIES ACT 1972 S3(2)

EUROPEAN COMMUNITIES (IDENTIFICATION & REGISTRATION OF BOVINE ANIMALS) REGS 1999 SI 276/1999 REG 23

EUROPEAN COMMUNITIES (IDENTIFICATION & REGISTRATION OF BOVINE ANIMALS) REGS 1999 SI 276/1999 REG 28

EUROPEAN COMMUNITIES ACT 1972 S4(1)(A)

EUROPEAN COMMUNITIES ACT 1972 S3

CONSTITUTION ART 25

CONSTITUTION ART 26

EUROPEAN COMMUNITIES ACT 1972 S4

CONSTITUTION ART 29.4.10

EUROPEAN COMMUNITIES (IDENTIFICATION & REGISTRATION OF BOVINE ANIMALS) REGS 1999 SI 276/1999 REG 10

EUROPEAN COMMUNITIES (IDENTIFICATION & REGISTRATION OF BOVINE ANIMALS) REGS 1999 SI 276/1999 REG 11

EUROPEAN COMMUNITIES (IDENTIFICATION & REGISTRATION OF BOVINE ANIMALS) REGS 1999 SI 276/1999 REG 12

EUROPEAN COMMUNITIES (IDENTIFICATION & REGISTRATION OF BOVINE ANIMALS) REGS 1999 SI 276/1999 REG 19

EUROPEAN COMMUNITIES (IDENTIFICATION & REGISTRATION OF BOVINE ANIMALS) REGS 1999 SI 276/1999 REG 19(B)

EUROPEAN COMMUNITIES (IDENTIFICATION & REGISTRATION OF BOVINE ANIMALS) REGS 1999 SI 276/1999 REG 20

EUROPEAN COMMUNITIES (IDENTIFICATION & REGISTRATION OF BOVINE ANIMALS) REGS 1999 SI 276/1999 REG 20(1)(B)

EUROPEAN COMMUNITIES (IDENTIFICATION & REGISTRATION OF BOVINE ANIMALS) REGS 1999 SI 276/1999 REG 29

EUROPEAN COMMUNITIES (IDENTIFICATION & REGISTRATION OF BOVINE ANIMALS) REGS 1999 SI 276/1999 REG 29(1)

EUROPEAN COMMUNITIES (REGISTRATION OF BOVINE ANIMALS) REGS 1996 SI 104/1996 REG 4

EUROPEAN COMMUNITIES (REGISTRATION OF BOVINE ANIMALS) REGS 1996 SI 104/1996 REG 8

DISEASES OF ANIMALS ACT 1966 S48(1)(D)

DISEASES OF ANIMALS ACT 1966 S48(1)(E)

DISEASES OF ANIMALS ACT 1966 S48(1)(H)

DISEASES OF ANIMALS ACT 1966 S49(1)(D)

DISEASES OF ANIMALS ACT 1966 S49(1)(E)

BRUCELLOSIS IN CATTLE (GENERAL PROVISIONS) ORDER 1991 SI 114/1991 ART 7(1)

BRUCELLOSIS IN CATTLE (GENERAL PROVISIONS) ORDER 1991 SI 114/1991 ART 7(3)

BRUCELLOSIS IN CATTLE (GENERAL PROVISIONS) ORDER 1991 SI 114/1991 ART 27

BRUCELLOSIS IN CATTLE (GENERAL PROVISIONS) ORDER 1991 SI 114/1991 ART 28

BRUCELLOSIS IN CATTLE (GENERAL PROVISIONS) ORDER 1991 SI 114/1991 ART 31(1)

BRUCELLOSIS IN CATTLE (GENERAL PROVISIONS) ORDER 1991 SI 114/1991 ART 18(2)

BOVINE TUBERCULOSIS (ATTESTATION OF THE STATE & GENERAL PROVISIONS) ORDER 1989 SI 308/1989 ART 5(2)

BOVINE TUBERCULOSIS (ATTESTATION OF THE STATE & GENERAL PROVISIONS) ORDER 1989 SI 308/1989 ART 6(1)

BOVINE TUBERCULOSIS (ATTESTATION OF THE STATE & GENERAL PROVISIONS) ORDER 1989 SI 308/1989 ART 32

BOVINE TUBERCULOSIS (ATTESTATION OF THE STATE & GENERAL PROVISIONS) ORDER 1989 SI 308/1989 ART 35

RSC O.84 r21

RSC O.84

EUROPEAN COMMUNITIES ACT 1972 S4(1)

DUBLIN CORP v FLYNN 1980 IR 357

DPP (KENNY) v DOYLE 2007 3 IR 89 2006/18/3652 2006 IEHC 155

DPP v JUDGE WINDLE & WALSH 1999 4 IR 280 2000 1 ILRM 75 1999/9/2221

CRIMINAL PROCEDURE ACT 1967 S7

DPP v OWENS 1999 2 IR 16 2000/8/2898

CRUISE v JUDGE O'DONNELL & DPP 2008 3 IR 230 2008 2 ILRM 187 2007/12/2421 2007 IESC 67

DPP v MCGUINNESS 1978 IR 189

AGRICULTURE

Licensing

Cattle export - Testing for tuberculosis and brucellosis - Charges alleging offences under brucellosis and tuberculosis orders - Dismissal on grounds of delay and abuse of process - Challenge to validity of restriction notices - Judicial review - Certiorari - Rulings of District Judge - Plenary proceedings challenging validity of statutory instruments - Application for declaration that ministerial orders or regulations invalid and contrary to European law- Delay - Laches - Alleged creation of indictable offences - Whether locus standi where plaintiff not prosecuted on indictment - Excess of jurisdiction in District Court - Ruling on facts in issue in criminal proceedings to be heard by separate judge - Ruling on application for dismissal without hearing parties - Hayes v Ireland [2010] IEHC 325 (Unrep, McKechnie J, 18/6/2010); Corporation of Dublin v Flynn [1980] ILRM 357; People (DPP) v Doyle [2006] IEHC 155 (Unrep, Dunne J, 15/5/2006); People (DPP) v District Judge Windle [1999] 4 IR 280; People (DPP) v Owens [1999] 2 IR 16; Cruise v District Judge O'Donnell [2008] 2 ILRM 18 and People (DPP) v McGuinness [1978] IR 189 considered - European Communities (Registration of Bovine Animals) Regulations 1996 (SI 104/96) - Bovine Tuberculosis (Attestation of the State and General Provisions) Order 1989 (SI 308/89) - Brucellosis in Cattle (General Provisions)(Amendment) Order 1991 (SI 114/91) - Findings in relation to validity of restriction notices quashed (2005/843P - McKechnie J - 28/7/2010) [2010] IEHC 323

GVM Exports Limited v Ireland

1 1. This judgment is given in respect of the above-named cases, which were consolidated by Order of Quirke J. on the 12 ^th April 2005. These were heard by this Court, at the same time as the associated case of Clement Hayes v. Ireland, The Attorney General, the Minister for Agriculture and Food (Record No.: 2007 / 322 JR), in respect of which a separate judgment has already been delivered.

Background:

2 2. The plaintiff ("GVM") is a cattle export company, incorporated on the 17 ^th February 1999, and now in voluntary liquidation. Its main customers were in Italy and Spain. A priceper kilo would be agreed between GVM and the customer; the cattle would be brought to a GVM mart, where the animals would be weighed, their tag numbers recorded, their passports checked, and the documents required for the purchase of the animal by the mart issued. It was a condition of purchase, inter alia, that animals would be tested for Bovine Tuberculosis ("TB") and brucellosis. Cattle would go directly to the plaintiff's facilities for processing, on lands rented at Kilmacow, Co. Kilkenny, approximately four miles from Waterford port. These lands comprised approximately 60 acres which were fenced and controlled, and which had penning, a crush for selecting animals, and sheds for feeding and holding. Animals arriving at the centre would be sorted into groups for separate export markets. Animals which did not have export licences were required, under certain export regulations, to be 30 day TB tested and 30 day brucellosis tested.

3 3. The general practice in relation to testing was that blood samples taken for the brucellosis test would be couriered to a laboratory in Cork so that the results would be back for the second limb of the TB testing, which involved taking readings from the animals 72 hours later. The tested animals were then transported to Waterford port, where, upon presentation of export certificates, cards and tags, checked by Department of Agriculture, Food and Rural Development ("the Department") officers, they would be issued with a Health certificate, allowing the animals to board the boat.

4 4. On or about the 6 ^th August 1999, 250 cattle belonging to the plaintiff were tested for TB and brucellosis at the Kilmacow holding facility. Resulting from this, the Department claimed that there were five reactors, which had tested positive for brucellosis. On foot of this, two "Notifications Regarding Restriction on Holding" dated the 12 ^th August 1999 were issued under the Brucellosis in Cattle (General Provisions) Order 1991 ( S.I. 114/1991), and addressed to the plaintiff at Kilmallock, Co. Limerick, referring to Herd Nos. M146240 and M188139 "of holding at Kilmacow, Co. Kilkenny & elsewhere" ("the Restriction Notices").

5 5. The passports for the animals in question were returned to a Mr. John Fleury, a shareholder of the plaintiff, on the 10 ^th August 1999. On or about the same day, 60 animals from those herds were exported to Italy, where, according to the plaintiff, no effort was made to restrict the animals. Similarly, 27 of the animals were sold to a Mr. Ivor Gettings in Tullamore; without Department disapproval.

6 6. The relevant Veterinary Inspector considered that GVM's "holdings" in the herd numbers identified in the Restriction Notices, including all lands that they used for farming purposes, either solely or jointly with any other persons, were covered by the Restriction Notices, so that, as prohibited thereunder, all female animals and bulls aged 12 months or more could not be moved into or out of such holdings. On the 13 ^th August 1999 the plaintiff received the Restriction Notices, but agents of the plaintiff continued to purchase cattle. The Veterinary Inspector considered that the company was entitled to do this provided that those animals, being either female, or male over 12 months of age, went direct to an approved export lairage or to a port. The plaintiff claims that the five reactors were later re-bled and retested; testing negative for brucellosis.

7 7. However a large number of GVM...