Geoghegan v Institute of Chartered Accountants

• Jurisdiction: Ireland
• Judge: Hamilton C.J.,O'Flaherty J.,Egan, J.,MRS. JUSTICE DENHAM
• Judgment Date: 16 November 1995
• Neutral Citation: 1995 WJSC-SC 4495
• Court: Supreme Court
• Docket Number: [1992 No. 316 J.R.]
• Date: 16 November 1995

GEOGHEGAN v. INSTITUTE OF CHARTERED ACCOUNTANTS

BETWEEN:

NEAL GEOGHEGAN

Applicant/Appellant

and

THE INSTITUTE OF CHARTERED ACCOUNTANTS INIRELAND

Respondent

and

THE ATTORNEY GENERAL

Notice Party/Respondent

1995 WJSC-SC 4495

HAMILTON C.J.

O'FLAHERTY J.

EGAN J.

BLAYNEY J.

DENHAM J.

263/93

THE SUPREME COURT

Synopsis:

CONSTITUTION

Courts

Justice - Administration - Judges - Function - Usurpation - Accountants - Discipline - Enforcement - Domestic enquiry into complaint made against member of professional association - Whether disciplinary committee purported to administer justice - (263/93 - Supreme Court - 16/11/95) - [1995] 3 IR 105

|Geoghegan v. Institute of Chartered Accountants in Ireland|

JUDICIAL REVIEW

Remedy

Scope - Association - Members - Discipline - Enforcement - Disciplinary committee - Dispute based on contractual rights - Whether order 84 applied to disputed decision of committee - (263/93 - Supreme Court - 16/11/95) - [1995] 3 IR 105

|Geoghegan v. Institute of Chartered Accountants in

Ireland|

PROFESSIONS

Accountants

Institute - Foundation - Powers - Members - Discipline - Enforcement - Disciplinary committee - Whether committee purported to administer justice in contravention of Constitution - Judicial review - Remedy - Scope - Contractual basis of relationship between member and Institute - Member bound by Institute's disciplinary procedures - Adaptation of Charters Act, 1926 - Chartered Accountants in Ireland (Charter Amendment) Act, 1966 (Private), ss. 6, 7 - Convention for the Protection of Human Rights and Fundamental Freedoms, article 6 - Constitution of the Irish Free State (Saorstat Eireann), 1922, Article 73 - Constitution of Ireland, 1937, Articles 34, 50 - (263/93 - Supreme Court - 16/11/95) - [1995] 3 IR 105

|Geoghegan v. Institute of Chartered Accountants in Ireland|

TRIBUNAL

Enquiry

Jurisdiction - Complaint - Investigation - Sanctions - Imposition - Powers - Accountants" professional disciplinary committee - Whether committee engaged in purported administration of justice - (263/93 - Supreme Court - 16/11/95) - [1995] 3 IR 105

|Geoghegan v. Institute of Chartered Accountants in Ireland|

Citations:

RSC O.84

RSC O.84 r8

COLQUOHOUN, STATE V DARCY 1936 IR 641

INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND (CHARTER AMDT) ACT 1966 S6

INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND (CHARTER AMDT) ACT 1966 S2

INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND (ALLOWANCE OF BYE-LAWS) ORDER 1989

CONSTITUTION ART 34(1)

CONSTITUTION ART 37

CONSTITUTION ART 40

INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND BYE-LAW 66(a)

INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND BYE-LAW 67

INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND BYE-LAW 68

INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND BYE-LAW 70

INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND BYE-LAW 71

INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND BYE-LAW 72

SOLICITORS ACTS 1954 – 1960 PART III

SOLICITORS (AMDT) ACT 1994

M V MEDICAL COUNCIL 1984 IR 396

INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND BYE-LAWS CH IX

BYRNE V IRELAND 1972 IR 241

WEBB V IRELAND 1988 IR 353

HOWARD V COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

CONSTITUTION SAORSTAT EIREANN ART 73

CONSTITUTION ART 50

INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND (CHARTER AMDT) ACT 1966 S7

ADAPTATION OF CHARTERS ACT 1926

KELLY HIDDEN TREASURE & THE CONSTITUTION 1988 10 DULJ 5

SOLICITORS ACT 1954, IN RE 1960 IR 239

CONSTITUTION ART 37

CONSTITUTION ART 34

KEADY V COMMISSIONER OF GARDA SIOCHANA 1992 2 IR 197

RSC O.84 r8

LYNCH, STATE V COONEY 1982 IR 337

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

O LAIGHLEIS, IN RE 1960 IR 93

NORRIS V AG 1984 IR 36

CONSTITUTION ART 34(i)

K V BORD ALTRANAIS 1990 2 IR 396

1 Judgment delivered on the 16th day of November1995by Hamilton C.J.

2 I have read the judgments about to be delivered by O'Flaherty J. and Denham J. each of which deals with the issues arising in this appeal and I am in agreement with their proposed dismissal of the appeal by the Plaintiff against the findings and order made by Murphy J. in theseproceedings.

3 In the course of his judgment in the High Court, Murphy J. hadstated:-

"In my view, the procedure of Judicial Review pursuant to Order 84 of the Rules of the High Court is not applicable to the affairs of the Institute of Chartered Accountants in Ireland."

4 In the course of his judgment about to be delivered, O'Flaherty J.states:-

"The learned High Court Judge decided that this was not an appropriate case to be brought by way of judicial review in the sense of the procedure identified in Order 84, Rule 8 of the Rules of the Superior Courts which comprised what used to be known as the prerogative write or orders of certiorari, mandamus prohibition and quo warranto. I am inclined to agree with the learned High Court Judge and, indeed support for his view is to be found in the decision of the Divisional Court in The State (Colquohoun) .v. Darcy and Others 1936 I.R.641."

5 Denham J. however in the course of her judgment states:-

"In these circumstances, I am satisfied that the decision of the disciplinary Committee may be the subject of Judicial Review pursuant to Order 84 of the Superior Court Rules."

6 The resolution of the issue thus arising as between the two judgments is not necessary for the determination of the Plaintiffs appealherein.

7 Having regard to the general importance of this issue of law, I would prefer to reserve my decision on it until it arises in a case as a question necessary for the determination of the claim.

8 jud36

9 16th day of November 1995by O'Flaherty J.[Blayney J. ConcuRRing.]

10 This is an appeal brought by Neal Geoghegan from the judgment and order of the High Court (Murphy J.) of the 9th July, 1993 refusing variousreliefs sought against the respondent, the Institute of Chartered Accountants in Ireland ("the Institute"), in these judicial review proceedings instituted on behalf of the appellant.

BACKGROUND

11 The appellant deposed in the course of his original affidavit grounding these proceedings that he was an associate member of the Institute from 1957 to 1968 and in the latter year became a fellow of the Institute. Since that time he has carried on business solely as an accountant and he derives his entire livelihood from his practice and employment over the years as an accountant. In November, 1985 he joined a firm known as Fitzgerald & Associates and he set forth that the precise basis upon which his membership of that firm proceeded has been in some doubt, namely, as to whether or not he was a partner or was there as a salaried employee of Mr. Fitzgerald (who is neither a chartered nor a certified accountant). The firm has offices in Dublin andCork and he deposed that the two offices operated autonomously.

12 The appellant went on to state that since 1989 or thereabouts the Institute has carried out a number of enquiries into the practice for the purposes of confirming whether or not the standards and requirements of the Institute have been complied with. From time to time various suggestions and findings have been made by members of the Institute who have visited the practice premises both in Dublin and Cork. While the investigating members of the Institute were satisfied that the standards and requirements of the Institute have been complied with at the Dublin Office, they have made various suggestions and finding concerning the practice at the Cork office. The appellant states that he has attempted to implement these findings and suggestions in so far as he has been able to do so. He believes, however, that at the time of instituting these proceedings the Institute was not satisfied with what he haddone.

13 I will return to the matter of the complaint that was made against theappellant after setting forth some details of the history and constitution of the Institute.

HISTORY AND CONSTITUTION OF THE INSTITUTE.

14 I take this summary from the affidavit of the 27th January, 1993 sworn by Mr. Robert L. Donovan who is a fellow of the Institute and was then the secretary of the Institute. He has since retired as secretary. It appears that the profession of accountant as such was first practised in Dublin in the late eighteenth century. At the turn of the century there appear to have been only seven practising accountants in Dublin. Numbers increased shortly thereafter, slumped slightly in the 1820's, and by 1871 there were 36 individuals or partnerships practising in Dublin. The number had risen to 41 by 1888. In 1887, Robert Stokes who was then practising as Stokes Brothers in College Green called a number of meetings of accountants, including some practising in Belfast and in Cork, with a view to obtaining a charter, and at the end of thatyear a petition was presented to the Lord Lieutenant by himself and 12 other accountants practising in Dublin, 12 accountants practising in Belfast and 6 accountants practising in Cork. The petition was accepted and a royal charter, dated the 14th May, 1888, was granted. The stated aim of the charter, apart from incorporation of the Institute, was "for the purpose of securing a high standard of professional and general education and the efficiency and responsibility of those engaged in the profession of accountants in Ireland and the elevation of that profession as a whole".

15 In the mid 1960s it was thought expedient to make certain amendments to the charter, and for this reason the Institute promoted and ultimately secured the enactment by the Oireachtas of a private Act for the purpose of amending the charter, entitled The Institute of Chartered Accountants in Ireland (Charter Amendment) Act, 1966, Number 2 (Private) of 1966 ("the Private Act"). A similar Act was passed in NorthernIreland.

16 Under the terms of the charter, the bye-laws of the Institute were required to be submitted to the Privy Council in...