O Huallacrain and Others v Burke and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 01 January 1988
• Neutral Citation: 1988 WJSC-HC 2804
• Docket Number: No. 140 J.R./1987
• Court: High Court
• Date: 01 January 1988

1988 WJSC-HC 2804

THE HIGH COURT

No. 140 J.R./1987

O HUALLACRAIN & ORS v. BURKE & ORS

BETWEEN

DONAL O'hUALLACHAIN & ORS.

APPLICANTS

AND

RAPHAEL BURKE & ORS.

FIRST NAMED RESPONDENTS

AND

SISTER ANGELA HIGGINS & ORS.

SECOND NAMED RESPONDENTS

Citations:

LATCHFORD V MIN INDUSTRY & COMMERCE 1950 IR 33

HAYES V CRIMINAL INJURIES COMPENSATION BOARD 1982 ILRM 210

MCMAHON, STATE V MIN EDUCATION UNREP BARRINGTON 21.12.85 1986/3/1206

COUNCIL OF CIVIL SERVICE UNIONS V MIN CIVIL SERVICE 1984 3 AER 935

MURPHY V MIN SOCIAL WELFARE 1987 IR 295

CASSIDY V MIN INDUSTRY & COMMERCE 1978 IR 305

Synopsis:

EDUCATION

School

Admittance - Control - Yearly intake - Criteria for selection - Applications from parents for the admittance of pupils in excess of school's capacity - Reasonable criteria adopted by school management in admitting some of applicant parents" children - ~See~ Tribunal, decision - (1987/140 JR - Murphy J. - 7/8/87) 1988 ILRM 693

|O hUallachain v. Burke|

TRIBUNAL

Decision

Review - School - Admittance - Control - Yearly intake - Selection - Criteria - Applications for admittance in excess of school's capacity - Reasonable criteria adopted by school management in admitting some of applicant parents" children as pupils for forthcoming year - The respondents were the board of management of Portmarnock Community School and the applicants were parents whose applications for the admittance of their children as pupils in the school for the academic year 1987/88 had been refused by the respondents - The school was opened in September, 1979, on a plot of ground which was vested in the Minister for Education - The school buildings were erected and equipped at a cost of #1,526,000 of which all but #126,000 had been supplied by the Minister - The school trustees held the school premises under a lease for a term of years granted by the Minister - The school's Instrument of Management provided that the board of management should be responsible for the government and direction of the conduct and curriculum of the school subject as therein - By the year 1984 the design capacity of the school (800 day pupils) had been reached and on 8/3/84 the board of management decided that the capacity of the school to admit new pupils was limited to 165 pupils - In September, 1986, the board received applications from parents seeking the admission of more than 200 new pupils in the school for the next academic year - The board then sent to those parents, including the applicants, a form which sought further detailed information, and a letter dated 3/11/86 which indicated that it was not possible to accede to all the applications received, but which did not disclose the criteria which the board proposed to adopt in selecting the number of new pupils to admit for the next year - On 20/11/86 the board decided that the school could admit only 165 new pupils for that year and that the criteria to be applied to the selection of that number of new pupils would be (1) students living in the area prior to the year 1981 whose brothers or sisters attended the school; (2) children of one parent families living in the area and (3) the remainder to be drawn from a list of pupils living in the area who were the eldest in their family and brothers and sisters of the remaining pupils in the school who lived in the area - The board later accepted that they intended all categories to apply only to children currently living in the area - The applicant parents applied to the High Court for an order of certiorari quashing the decisions of the management board which had rejected applications of the applicants for the admission of their children to the school for the next academic year - Held, in dismissing the application, that the respondents had been entitled to decide the number of new pupils which their school could accommodate, that they had made that decision in a responsible and proper manner, and that they had applied reasonable criteria when selecting from the parents" applications the 165 new pupils to be admitted to the school: ~Cassidy v. Minister for Industry & Commerce~ [1978] I.R. 297 considered - (1987/140 JR - Murphy J. - 7/8/87) 1988 ILRM 693

|O hUallachain v. Burke|

1 Transcript of ex-tempore judgment delivered by Mr. Justice Murphy on the 7th August, 1987.

2 In this case the Applicants seek an Order of Certiorari quashing certain decisions made on or about the 27th of November, 1986 whereby an application for admission as pupils of the Portmarnock Community School were rejected by the Respondents. The Applicants are the parents of nine children whose applications for admission to the school for the academic year 1987/88 were rejected. The Respondents were, at the relevant time, the Board of Management of the School and the lastly named Respondent was and is the principal thereof.

3 The Applicants contend that the decision of the Board of Management rejecting the applications made on behalf of their children was invalid on grounds which may be summarised as follows. First, that the Board of Management did not possess the power which they purported to exercise to impose any criteria in relation to the admission of pupils to the school. Secondly that if the Board did have that implied power to impose any such criteria then as a matter of law the Board were bound to ensure

4 (a) that such criteria were both lawful and fair

5 (b) that due notice was given of the existence and terms of such criteria and

6 (c) that the criteria were properly and fairly applied.

7 Thirdly, it was contended that the decisions of the Board made on the 27th of November, 1986 failed by reference to each and every of the foregoing requirements. I turn then to the facts of this case.

8 Portmarnock Community School opened in September, 1979 although the Deed of Trust by which it was legally constituted was not formally executed until the 24th of March 1981. The Deed of Trust was made between the Minister for Education, the Minister, of the one part and the then Catholic Archbishop of Dublin, Sister Margaret Ryan, a member of the Loreto Sisters and John Boland of the County Vocational Committee therein referred to as the original trustees of the other part. The Deed recites that the Portmarnock Community School had been erected on a plot of ground vested in the Minister, that it was proposed to lease the land and school to the original trustees on the terms of the Deed, that the cost of erecting and equipping the building had been or would be discharged by the Minister as to £1.4 million and by the original trustees or the interests which they represented as to £126,000. There are two paragraphs in the Trust Deed to which both parties drew attention, namely, Articles 4 and 6 thereof which provide as follows:

Article 4:

"The trustees shall hold the trust property upon trust for the purposes of the school established with the object of providing a comprehensive system of post-primary education open to all the children of the community combining instruction in academic and practical subjects and ongoing education for persons living at or near portmarnock County Dublin aforesaid and generally for the purpose of contributing towards the spiritual, moral, mental and physical well-being and development of the said community so long as the said lease shall be in existence or until the said lot shall be sold in accordance with the provisions of Clause 7 hereof."

9 I turn then to Article 6

Article 6:

"The trustees hereby covenant with the Minister for themselves and their successors in title as trustees that they will from time to time and at all times hereafter duly, diligently and faithfully execute and perform all of the trusts referred to and all the terms and conditions mentioned and contained herein and in the scheme provided that if at any time grave or repeated defaults shall be made by the trustees in the due execution and performance of this covenant the Minister may either"

(1) remove all or any of the trustees and appoint new trustees or a new trustee as hereinafter provided in place of the trustees or trustee so removed or

(2) terminate this lease upon giving to the trustees six months prior notice in writing."

10 and the clause goes on to provide for the termination of the lease.

11 The words referred to in Article 6 that is the words in the scheme are defined in the first paragraph of the Trust Deeds as including the provisions set out in the First and Second Schedules to that Deed. The First Schedule incorporates the Instrument of Management and again paragraph (1) of the Instrument of Management contains certain definitions, the first of which is the Board which is defined as being the Board of Management thereby constituted and the principal is defined as the principal teacher of the school for the time being. However, perhaps the most important provision of the Instrument of Management is paragraph (2) which expressly provides as follows:

"The Board shall be responsible for the government and direction of the school subject to the provisions of the First and Second Schedules hereof."

12 Paragraphs (3) to (11) of the Instrument of Management, which consists indeed of some 12 paragraphs, contain detailed provisions in relation to the constitution and establishment of the Board of Management. Those paragraphs provide that three members of the Board are to be appointed on the joint nomination of the Archbishop of Dublin and the Mother Provincial of the Loreto Sisters, three more are to be nominated by the Vocational Education Committee, two are elected by the parents of the pupils of the school and two are elected by the teaching staff. There are detailed provisions concerning the election, appointment and removal of members of the Board. Clearly every effort was made to procure and retain the services of a representative and responsible Board of Management. The...