Gallagher v Revenue Commissioners (No. 2)

• Jurisdiction: Ireland
• Judgment Date: 18 January 1995
• Date: 18 January 1995
• Docket Number: [1993 No. 153 J.R. and S.C. No. 89 of 1994]
• Court: Supreme Court

Gallagher v. The Revenue Commissioners (No. 2)

Paul Gallagher

Applicant

and

The Revenue Commissioners, David O'Callaghan and The Government of Ireland, Respondent (No. 2)

[1993 No. 153 J.R. and S.C. No. 89 of 1994]

High Court

Supreme Court

Judicial review - Administrative law - Natural justice - Fair procedures - Audi alteram partem - Inquiry - Accusations of misconduct - Hearsay - Dismissal of applicant by respondent - Whether applicant entitled to fair procedures - Whether right to confront accusers - Whether right to cross-examine witnesses giving evidence upon which Tribunal of inquiry relied in reaching its decision - Constitution of Ireland, Article 40, s. 3.

Natural justice - Fair procedures - Tribunal of inquiry - Allegations against applicant -Multiple applications for judicial review - Motivation of applicant - Whether applicant attempting to obstruct inquiry - Whether applicant disentitled to relief.

The applicant was a Customs and Excise officer with over 20 years service. His duties included valuing cars that had been irregularly imported into the State so that the duty owing on such cars could be calculated. An investigation was conducted by the first respondent into the manner in which the applicant performed these duties, in the course of which investigating officers inquired into the valuations which the applicant had given the cars in question, and compared them against valuations obtained from third parties. Following the investigation, the first respondent alleged that the applicant had, inter alia, deliberately under-valued the market value of the cars, and the applicant was informed that the second respondent would hold an oral inquiry into these allegations.

The oral inquiry was held on the 6th February, 1992, following two separate applications for judicial review by the applicant. Prior to and during the inquiry, counsel on behalf of the applicant indicated that the applicant wished to cross-examine the third parties who had carried out the valuations for the investigation. On being informed that it was not intended to call the valuers to prove the facts forming the basis of the charge against him, the applicant withdrew from the inquiry, which proceeded in his absence. On the 16th February, 1993, following the submission of the second respondent's report to the first respondent, the applicant was dismissed by the third respondent.

The applicant applied to the High Court for an order of certiorari quashing the dismissal on the grounds, inter alia, that the second respondent, in conducting the inquiry, had denied the applicant the opportunity to confront and cross-examine those persons whose evidence was said to be adverse to him.

It was submitted on behalf of the respondents, first, that the inquiry should be regarded as an internal matter which ought not to be required to be conducted in an excessively legalistic fashion and in respect of which constitutional rights to fair procedures did not arise. Secondly, it was submitted that in the light of the two previous applications for judicial review brought by the applicant, the instant application was motivated primarily by a desire to obstruct the dismissal proceedings, and not by a genuine concern that his constitutional rights be vindicated. Thirdly, it was submitted that since the second respondent did not have power to compel the attendance of the witnesses who had made the independent valuations, a determination in favour of the applicant would result in unfair procedures being applied against the respondents.

Held by Morris J., in granting the relief sought, 1, that if the misconduct of which the applicant stood accused was to be established, proper and acceptable evidence as to the value of the cars was to be tendered to the inquiry.

In re Haughey [1971] I.R. 217 and dictum of Henchy J. in Kiely v. Minister for Social Welfare[1977] I.R. 267 considered.

Per curiam: That whilst the officers of the first respondent who had carried out the investigation would be available for cross-examination by the applicant, their evidence of the valuation of the cars would constitute hearsay.

2. That the applicant stood accused of grave misconduct such that he had a constitutional right to be afforded reasonable means of defending himself at the inquiry and in particular to cross-examine the persons who had valued the cars.

In re Haughey [1971] I.R. 217 and dictum of Henchy J. in Kiely v. Minister for Social Welfare[1977] I.R. 267 applied.

3. That the High Court had dealt with the inquiry in the two previous applications for judicial review brought by the applicant on the basis that it was one in the course of which the applicant had a constitutional right to fair procedures. Accordingly, it was now too late to raise the argument that the inquiry was one to which fair procedures did not apply.

Gallagher v. Revenue Commissioners [1991] 2 I.R. 370 considered.

4. That a citizen's constitutional right to fair procedures could not be altered or diminished by reason of his motivation for asserting the said right.

5. That there was no reason why the respondents could not obtain expert evidence as to the valuation of the vehicles in question from witnesses who would be available to the inquiry and for cross-examination by the applicant.

6. That, accordingly, the conduct of the inquiry was unsatisfactory inasmuch as the applicant was deprived of the opportunity of confronting witnesses who purported to give evidence impugning his character, and he was denied natural justice.

On appeal it was

Held by the Supreme Court (Hamilton C.J., O'Flaherty and Denham JJ.), in dismissing the appeal, 1, that having regard to the seriousness of the inquiry for the applicant and the requirement that the respondent act judicially in conducting the inquiry, the respondents were obliged to adopt fair and reasonable procedures.

Kiely v. Minister for Social Welfare [1977] I.R. 267; In re Haughey[1971] I.R. 217 and Flanagan v. University College Dublin[1988] I.R. 724 applied.

2. That while on occasions a tribunal of inquiry could act on hearsay evidence, in the applicant's case to act on written hearsay evidence and to deny the applicant the opportunity to cross examine witnesses as to facts central to the establishment of the charges against the applicant amounted to a failure to afford the applicant fair procedures and constituted a breach of the requirement of natural justice to audi alterem partem.

Kiely v. Minister for Social Welfare [1977] I.R. 267 applied.

3. That mere administrative difficulty in securing the attendance of witnesses before a tribunal was not a sufficient ground for depriving the applicant of the right to cross-examine witnesses as to facts essential to the establishment of charges against him.

• R. v. Board of Visitors of Hull Prison, ex p. St. Germain D.C. [1979] 1 W.L.R. 1401 followed.

Cases mentioned in this report:—

Bushell v. Secretary of State for the Environment [1981] A.C. 75; [1980] 3 W.L.R. 22; [1980] 2 All E.R. 608; 78 L.G.R. 269.

Flanagan v. University College Dublin [1988] I.R. 724.

Gallagher v. Revenue Commissioners [1991] 2 I.R. 370.

Garvey v. Ireland [1981] I.R. 75; (1979) 113 I.L.T.R. 61.

Glover v. B.L.N. Ltd. [1973] I.R. 388.

In re Haughey [1971] I.R. 217.

International Fishing Vessels Ltd. v. Minister for Marine (No. 2) [1991] 2 I.R. 93.

John v. Rees [1970] Ch. 345; [1969] 2 W.L.R. 1294; [1969] 2 All E.R. 274.

Keady v. Commissioner of An Garda Síochána [1992] 2 I.R. 197; [1992] I.L.R.M. 312.

Kiely v. Minister for Social Welfare [1977] I.R. 267.

McDonald v. Bord na gCon [1965] I.R. 217; (1966) 100 I.L.T.R. 89.

Mooney v. An Post [1994] E.L.R. 110.

R. v. Board of Visitors of Hull Prison, ex p. St. Germain D.C. [1979] 1 W.L.R. 1401; [1979] 3 All E.R. 545.

State (Boyle) v. General Medical Services (Payment) Board and Ors.[1981] I.L.R.M. 14.

The State (Duffy) v. Minister for Defence [1979] I.L.R.M. 65.

The State (Gleeson) v. Minister for Defence [1976] I.R. 280.

The State (Irish Pharmaceuitical Union) v. Employment Appeals Tribunal[1987] I.L.R.M. 36.

Judicial Review.

The facts are summarised in the headnote and are fully set out in the judgment of Morris J., infra.

On the 24th May, 1993, the High Court (Geoghegan J.) granted the applicant leave to apply by way of judicial review for the following reliefs:—

• 1. An order of certiorari quashing the decision of the third respondent to dismiss the applicant from his post as an officer of Customs and Excise with effect from the 16th February, 1993;

• 2. an order reinstating the applicant as an officer of the Customs and Excise;

• 3. an order directing the first and second respondent to pay the applicant his arrears of salary and expenses;

• 4. an inquiry as to damages; and

• 5. damages for wrongful dismissal.

Following the filing of a statement of opposition dated the 30th July, 1993, the case was heard by the High Court (Morris J.) on the 18th and 19th January, 1994.

The respondents appealed to the Supreme Court by way of notice of motion dated the 17th February, 1994.

The appeal was heard by the Supreme Court (Hamilton C.J., O'Flaherty and Denham JJ.) on the 4th October, 1994.

Cur. adv. vult.

Morris J.

The circumstances in which this application arises can be summarised as follows. The applicant is a civil servant and is an officer of Customs and Excise and has over twenty years' service. It appears that for some time prior to January, 1988, the Revenue Commissioners were concerned about the manner in which the applicant was performing his duties and investigating officers, Messrs. Darcy and Cullen, embarked upon investigations of the applicant. These investigations appeared to indicate that he was not performing his duties in a satisfactory manner and the conduct, if established, would constitute grave misconduct and grave irregularity on the part of the applicant. The applicant was suspended from...