Gould v McSweeney and Others
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE SMYTH |
| Judgment Date | 23 January 2007 |
| Neutral Citation | [2007] IEHC 5 |
| Court | High Court |
| Docket Number | Case No. 2006/2671P |
| Date | 23 January 2007 |
[2007] IEHC 5
THE HIGH COURT
DUBLIN
AND
MURPHY v TURF CLUB 1989 IR 171
DOYLE v CROKE 1988 JISL 150 1988 7 2007
BOYLE, STATE v GENERAL MEDICAL SERVICES (PAYMENT) BOARD 1981 ILRM 14
FLANAGAN B UCD 1988 IR 724
QUIRKE v BORD LUTHCHLEAS NA HEIREANN 1988 IR 83
HENEGHAN v WESTERN REGIONAL FISHERIES BOARD 1986 ILRM 225
JUDICIAL REVIEW
Audi alteram partem
Natural justice - Declaration -- Nemo judex in causa sua - Amateur sporting organisation - Relationship governed by contract - Objective bias - Discretion of association - Whether courts should interfere in affairs of private associations - Murphy v Turf Club [1989] IR 171 applied - Interim order vacated and claim dismissed (2006/2671P - Smyth J - 23/1/2007) [2007] IEHC 5Gould v McSweeney
The plaintiff was suspended for two years from participating in the game of bowls. He sought a declaration that the decision of Ból Chumann na hÉireann in respect of the plaintiff was invalid as it was made contrary to the rules of natural and constitutional justice.
Held by Smyth J. in refusing the relief sought that the frame of mind in which the court should decide these issues was that the courts must not interfere officiously in the affairs of private associations and when considering what procedures could properly be regarded as fair it had to consider procedures which would be appropriate to the type of organisation or association which was to adopt them and the nature and scope of the decision to which they related.
Reporter: R.W.
MR. JUSTICE T.C. SMYTH DELIVERED HIS JUDGEMENT ON 23RD JANUARY, 2007 AS FOLLOWS:
MR. JUSTICE SMYTH: The Plaintiff is in his mid thirties and for many years, prior to June 2006 was greatly interested in the sport of road bowling and for many years was a member of Ból Chumann na hÉireann, (hereinafter referred to as "the Association"). He has been very successful in his sporting career and won numerous championships at different levels of the game and represented Ireland at international level. In June 2006 he considered that he was approaching a stage in his career where he would shortly be passed his prime.
The Plaintiff was scheduled to play a senior championship match (referred to in the parlance of the game as a score) on Sunday, 28th May 2006 against one David Murphy. This score was effectively the Cork County quarter-final, and in fact it attracted a large attendance and €9,000 per side was raised as a stake. A series of incidents occurred before the score proper began which were the subject of enquiry by the Executive Committee of the Association and such are the concern of this action. In the play of the day of the 28th May 2006 the Plaintiff won the score and in the normal course of events the Plaintiff would have gone on to play one John Creedon in the Cork County semi final on Sunday, 11th June 2006. However, as a result of a decision of the Executive Committee of the Association of 7th June 2006 (concerning the conduct of the Plaintiff on 28th May 2006) the Plaintiff was suspended for two years from participating in the game of bowls under the auspices of the Association. From such circumstances John Creedon had been allowed to proceed to the County Championship against one Philip O'Donovan on 28th June 2000. Laffoy J., by order dated 16th June 2006, restrained the Defendants from allowing the playing of the final of the Cork County Championship scheduled for Sunday 18th June 2006. The Plaintiff seeks now a declaration that the decision of the Association made on 7th/8th day of June 2006 in respect of the Plaintiff is invalid as it was made contrary to the rules of natural and constitutional justice and, in particular, contrary to the principles of audi alteram partem and nemo judex in causa sua. The facts of this afternoon can be briefly stated. Each of the contestants got a bowl each from Brendan Hayes, a steward on the evening in question (he was and is the secretary of the Association) to play a practice shot prior to the score, which was due to begin at 1:30 p.m.. The shot was taken from in front of the starting line. At that time there was a large crowd congregating and there were a number of parked cars on the left-hand side of the road, some but not all parked (because there was no space for them) in a lay-by some 60 to 80 metres ahead of the start line. There are some differences as to the detail between the events recollected by the Plaintiff and the Steward, and any other person, and insofar as such differences exist I prefer to rely on the evidence and report of the Referee because of his impartiality and immediate proximity to the actual events on the issue of safety. In this regard the Referee avers that:
2 "4.…I would say that most of Kieran Gould's shots went in that general direction of the lay-by, where the cars were parked and some of them hit the parked cars. I was standing behind them directly where they were throwing them.
I note that one of the shots thrown by Kieran Gould narrowly missed a gentleman in a wheelchair, who was just after alighting from his car and was in between two of the parked cars in the lay-by.
A lot of people had gathered and they were milling around the road way, talking in a casual manner and not as alert as people are when a score has commenced. At this point in time Brendan Hayes asked both players tomove further down the road to avoid causing any injury to the spectators or damages to the cars in the lay-by. I saw that David Murphy did as he was told. Kieran Gould, however, did not abuse Brendan Hayes and moved backwards towards the start line to throw more bowls, some of them which he lofted over the heads of the people on the road.
After Brendan Hayes had warned him, I also warned him before he threw those further shots and I advised him that he himself would be responsible for any harm he would do. I had been thinking to myself before he had been warned by Brendan Hayes, Secretary of Ból Chumann, that the shots were dangerous and that somebody could be hurt or there could be damage to cars parked in the lay-by. 8. After one of the shots of the bowl was not returned from up the road and Kieran Gould took one of the bowls out of the container of spare bowls which I had in my hand. I did not give him a bowl; he had it taken before I knew it. He had already been told not to throw the bowl and therefore his attitude must have been that he was going to throw it regardless of what I said."
While Mr. Finbar Aldworth was not officiating on the day, he is Chairman of the Referees Committee of the Association and had appointed Mr. Willie Murphy as theReferee of the contest in which the Plaintiff took part and he, Mr. Aldworth, avers in paragraph 4 of his after affidavit that: "It was dangerous for him (the Plaintiff) to throw the shots in those circumstances", to which he refers, i.e. parked cars and about 3000 people, and the action of the Plaintiff, and he goes on as follows:
2 "4.…No warning was given by him, and the stewards as a result could not warn people of the shots coming. It was only when the shots hit the parked cars on the road that the people heard the bang and scattered and knew anything of the shots being taken.
5. I saw Brendan Hayes, whom I know, warning Kieran Gould that he was not entitled to take practice shots when there were people on the road. He told him he had no permission to throw the shots and he would not be covered by insurance. I heard Kieran Gould's reply, that he was entitled to throw practice shots and he did abuse Brendan Hayes. I believe there was another Steward from the local club in and around that area and he was also warning him as well.
6. From my experience of being a Referee, and as a Chairman of the Referees, it certainly entered my head that it was possible that the score could have been stopped and Kieran Gould disqualified for his conduct. But that, of course, was a matter of decision for the Referee on the day."
In my judgment it would not be any defence at a Disciplinary inquiry to advance in justification or otherwise of conduct, such as I am satisfied as a fact on the evidence was conduct that in all the circumstances was dangerous and unsafe, that instead of immediate disqualification the referee exercised a very common sense judgment, where 3000 people were gathered and substantial bets placed on the outcome, to permit the score to proceed when the circumstances in his judgment had become safe.
[The Referee subsequently made his report, attended the meeting on 7th June, but did not vote on the decision to discipline the Plaintiff.]
Where the evidence of the Plaintiff and the Steward are in conflict, on the issue of dangerous play, I prefer that of the Steward on the balance of probabilities and in substance consistent with and/or corroborated by that of the Referee, Mr. Aldworth and Mr. Lehane in their affidavits. The Steward wrote a report dated 29th May 2006 to the Chairperson of the Association and by direction of the Chairperson he, in his capacity as Secretary of the Association, wrote by letter dated and posted on 31st May 2006 to the Plaintiff notifying him and inviting him to attend a meeting to be held on 7th June, 2006 of the Executive Committee to consider his alleged breach of discipline under Rule XIV 5(d) and (i) of the Association. They provide as follows:
"5. Members may be expelled, suspended or otherwise disciplined for good and sufficient reason, and without prejudice to the generality hereof for:-
(d) assaulting, threatening, intimidating or otherwise interfering with any Referee,...
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