Gorman v Minister for the Enivronment

• Jurisdiction: Ireland
• Court: High Court
• Judge: Justice Kelly
• Judgment Date: 07 December 2000
• Neutral Citation: [2000] IEHC 207
• Date: 07 December 2000
• Docket Number: [2000 No. 699 J.R.]

[2000] IEHC 207

THE HIGH COURT

No. 699JR/2000

GORMAN & NATIONAL TAXI DRIVERS UNION v. MIN FOR ENVIRONMENT &ORS

JUDICIAL REVIEW

BETWEEN

THOMAS GORMAN, VINCENT KEARNS AND THE NATIONAL TAXI DRIVERS UNION

APPLICANTS

AND

THE MINISTER FOR THE ENVIRONMENT AND LOCAL GOVERNMENT, THE MINISTER FOR STATE AT THE DEPARTMENT OF THE ENVIRONMENT AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

R V LEGAL AID AID BOARD EX PARTE HUGHES 1993 5 ADM LR 623

G V DPP 1994 1 IR 374

MASS ENERGY LTD V BIRMINGHAM CITY COUNCIL 1994 ENV LR 298

R V LONDON DOCKLANDS DEVELOPMENT CORPORATION EX PARTE FROST 1997 73 P & CR 199

R V COTSWOLD DISTRICT COUNCIL EX PARTE BARRINGTON PARISH COUNCIL 75 P & CR 515

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES) (AMDT) (NO 3) REGS 2000 SI 367/2000

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES) (AMDT) REGS 2000 SI 3/2000

BUCKLEY V AG 1950 IR 67

CAMILLO, IN RE 1988 IR 104

Synopsis:

Administrative Law

Administrative; road traffic; High Court had quashed S.I. 3/2000 on certiorari in earlier proceedings [see below, summary of Humphrey v. Minister for the Environment, Road Traffic section, infra]; first and third applicants, who had been respondents in the earlier High Court certiorari case, had appealed that order to the Supreme Court; S.I. 3/2000 had been replaced by S.I. 367/2000, which itself revoked S.I. 3/2000; application for leave to apply for judicial review; application made inter partes by order of the Court; whether S.I. 367/2000 improperly interfered with applicants' entitlement to have their appeal disposed of, since there was nothing left to be dealt with by Supreme Court; whether new S.I. amounted to an impermissible interference with the judicial power; whether new S.I. constituted an unlawful interference with property rights; whether new S.I. was unreasonable or irrational; whether new S.I. had been made without sufficient compliance with the rules of natural justice.

Held: Leave granted; quaere whether a higher standard of proof than that described by Supreme Court in G. v. D.P.P. [1994] 1 I.R. 374 should apply to an inter partes application for leave to apply for judicial review; per curiam grant of leave does not hinder, impede or prevent the continued operation of impugned S.I.

Gorman v. Minister for the Environment - High Court: Kelly J. - 07/12/2000 - [2001] 1 IR 306

The applicants had sought leave of court to commence judicial review proceedings against the respondents by way of an ex -parte application. The court had decided that it adjourn the matter to an inter partes hearing in order for the respondents to be heard. The applicants sought to challenge the recently issued Statutory Instrument Road Traffic (Public Service Vehicles) (Amendment) (No. 3) Regulations, 2000 regarding the licensing of taxis. Kelly J, having considered the submissions of both parties, found that the applicants had established an arguable case and granted the leave to seek judicial review.

1 Justice Kelly delivered the 7th day of December 2000

2 The applicants seek the leave of this Court to commence judicial review proceedings against the respondents.

3 The application was made on an ex parte basis late on Tuesday the 28th of November 2000. At the conclusion of that hearing I took the view that I ought not to decide the application without giving the respondents an opportunity to be heard. They were served with the papers and over the last few days an inter partes hearing has been conducted before me.

4 This procedure of adjourning an ex parte application to an inter partes hearing is one which is utilised in a small number of judicial review cases. Nobody has suggested that this was not an appropriate case in which to have adopted this procedure. Although the practice has been followed in a number of cases in this jurisdiction it has not been the subject of any judicial comment. It has however received the approval of the Court of Appeal in England (see the observations of Lord Donaldson M.R. in R. v Legal Aid Board Ex Parte Hughes(1993) 5 Adm. L.R. 623).

5 At the commencement of this inter partes hearing Counsel on both sides agreed that, notwithstanding that the hearing was inter partes, the burden of proof to be achieved by the Applicants was that set forth by the Supreme Court in G.v DPP[1994)]1 I.R. 374.

6 In that case Lavan J. in this Court refused leave to reply for judicial review on an ex parte application. An appeal was taken to the Supreme Court where his decision was reversed.

7 Finlay C.J. at pages 377–8 of the report said:

"It is, I am satisfied, desirable before considering the specific issues in this case to set out in short form what appears to be the necessary ingredients which an Applicant must satisfy in order to obtain liberty of the court to issue judicial review proceedings. An applicant must satisfy the court in a prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:-"

(a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20(4).

(b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review.

(c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks.

(d) That the application has been made promptly and in any event within the three months or six months time limits provided for in O. 84, r. 21(1), or that the Court is satisfied that there is a good reason for extending the time limit.....

(e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure.

8 These conditions or proofs are not intended to be exclusive and the court has a general discretion, since judicial review in many instances is an entirely discretionary remedy which may well include, amongst other things, consideration of whether the matter concerned is one of importance or of triviality and also as to whether the applicant has shown good faith in the making of an ex parte application."

9 It is to be noted that he specified that an arguable case in law must be made by an applicant seeking judicial review.

10 In her judgment, Denham...