Kelly (plaintiff) v National University of Ireland (University College Dublin) & Director of the Equality Tribunal (notice party)

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 14 March 2008
• Neutral Citation: [2008] IEHC 464
• Court: High Court
• Date: 14 March 2008

[2008] IEHC 464

THE HIGH COURT

[No. 52 CA/2007]

Kelly v National University of Ireland (Aka University College, Dublin)

BETWEEN

PATRICK KELLY

PLAINTIFF

AND

THE NATIONAL UNIVERSITY OF IRELAND, ALSO KNOWN AS UNIVERSITY COLLEGE, DUBLIN

DEFENDANT

AND

THE DIRECTOR OF THE EQUALITY TRIBUNAL

NOTICE PARTY

NATIONAL UNIVERSITY OF IRELAND DUBLIN (CHANGE OF NAME OF UNIVERSITY) ORDER 1998 SI 447/1998

EQUAL STATUS ACT 2000 S7

EQUAL STATUS ACT 2000 S3(1)(A)

EQUAL STATUS ACT 2000 S3(2)(A)

CCR O.57A r6(1)

EQUAL STATUS ACT 2000 S28

CCR O.57A

CCR O.57A r6(6)

TREATY OF ROME ART 234 PARA 1

TREATY OF ROME ART 234 PARA 3

EEC DIR 97/80 ART 4(1)

EEC DIR 76/207 ART 4

EEC DIR 76/207 ART 3

EEC DIR 76/207 ART 1

EEC DIR 76/207 ART 2

EEC DIR 76/207 ART 4(C)

EEC DIR 2002/73

EUROPEAN COMMUNITIES (BURDEN OF PROOF IN GENDER DISCRIMINATION CASES) REGS 337/2001

TREATY OF ROME ART 234

CILFIT SRL & LANIFICIO DI GAVARDO SPA v MINISTRY OF HEALTH 1982 ECR 3415 1983 1 CMLR 472

TREATY OF ROME ART 234 PARA 2

FRATELLI PARDINI SPA v MINISTERO DEL COMMERCIO CON L'ESTERO & BANCA TOSCANA (LUCCA BRANCH) 1988 ECR 2041

EMPLOYMENT EQUALITY ACT 1998 S12

RIORDAN v AN TAOISEACH & ORS 2000 4 IR 537 2000/16/6090

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v SIMMENTHAL SPA (NO 2) 1978 ECR 629 1978 3 CMLR 263

MARLEASING SA v LA COMERCIAL INTERNACIONAL DE ALIMENTACION SA 1990 ECR I-4135 1993 BCC 421 1992 1 CMLR 305

REVENUE & CUSTOMS CMRS v IDT CARD SERVICES IRL LTD 2006 STC 1252 2006 EWCA CIV 29

PFEIFFER & ORS v DEUTSCHES ROTES KREUZ KREISVERBAND WALDSHUT EV 2005 ICR 1307 2004 ECR I-8835 2005 1 CMLR 44 2005 IRLR 137

MEILICKE (WIENAND) v ADV/ORGA FA MEYER AC 1992 ECR I-4871

CORSICA FERRIES ITALIA SRL v CORPO DEI PILOTI DEL PORTO DI GENOVA 1994 ECR I-1783

MONIN AUTOMOBILES-MAISON DU DEUX ROUES, IN RE 1994 ECR I-1707

DA COSTA EN SCHAAKE NV & ORS v NEDERLANDSE BELASTINGADMINISTRATIE 1963 ECR 31 1963 CMLR 224

FOGLIA v NOVELLO (NO 2) 1981 ECR 3045 1982 1 CMLR 585

CRIMINAL PROCEEDINGS AGAINST GASPARINI & ORS 2006 ECR I-9199 2007 1 CMLR 12

TREATY OF ROME ART 234 PARA 1(B)

MANGOLD v HELM 2005 ECR I-9981 2006 1 CMLR 43 2006 AER (EC) 383

ADENELER & ORS v ELLINIKOS ORGANISMOS GALAKTOS (ELOG) 2006 ECR I-6057 2006 3 CMLR 30 2007 AER (EC) 82

GRAVIER v CITY OF LIEGE 1985 ECR 593 1985 3 CMLR 1

BLAIZOT v UNIVERSITY OF LIEGE 1988 ECR 379 1989 1 CMLR 57

EUROPEAN COMMUNITIES (BURDEN OF PROOF IN GENDER DISCRIMINATION CASES) REGS 2001 SI 337/2001

EQUAL STATUS ACT 2000 S28(3)

COURTS OF JUSTICE ACT 1936 PART IV

COURTS OF JUSTICE ACT 1936 S37

COURTS OF JUSTICE ACT 1936 S39

HOFFMAN-LA ROCHE & CO AG v CENTRAFARM VERTRIEBSGESELLSCHAFT PHARMAZEUTISCHER ERZEUGNISSE MBH 1977 ECR 957 1977 2 CMLR 334

EUROPEAN UNION

Practice and procedure

Preliminary ruling - Reference to European Court of Justice - High Court - Alleged breach of European union law - Equal Treatment Directive - Burden of Proof Directive - Disclosure application seeking certain documents to establish direct or indirect discrimination refused by Circuit Court - Appeal to High Court pending against order - Right to have sight of documents to establish allegation of discriminating conduct - Vocational training - Whether court duty bound to refer questions to European Court of Justice for preliminary ruling - Discretion - Parameters of court's jurisdiction to refer preliminary ruling - Applicable principles - Acte clair principles - Whether requirements of article satisfied - Status of court - Whether High Court final instance court on disclosure application - Whether application premature - Disclosure appeal not ruled upon - CILFIT Srl v Ministry for Health [1982] ECR 3415 applied; Fratelli Pardini v Ministero del Commercio con L'estero [1988] ECR 2041, Riordan v An Taoiseach [2000] 4 IR 537, Stato v Simmenthal [1978] ECR 629, Marleasing SA v La Comercial Internacional de Alimentacion SA Case (C-106/89) [1990] ECR I-4135, R (IDT Card Services Ireland Ltd) v Customs and Excise Comrs [2006] EWCA Civ 29, [2006] STC 1252, Pfeiffer v Deutsches Rotes Kreuz (Joined Cases C-397 to C-403/01) [2004] ECR I-8835, Weinand Meilickev [1992] ECR I-4871, Corsica Ferries Italia Slr v Corpo dei Piloti del Porto di Genova [1994] ECR I-1783, Monin Automobiles-Maison de Deux-Roues [1994] ECR I-195, Schaake NV v Nederlandse Belastingadministratie [1963] ECR 31, Foglia v Novello II [1981] ECR 3045, Criminal Proceedings against Gasparini [2006] ECR I-9199, Mangold v Helm [2005] ECR I-9981, Adeneler v Ellinikos Organismos Galaktos [2006] ECR I- 6057, Gravier v City of Liege [1985] ECR 593, Blaizot v University of Liege [1989] 1 CMLR 69 and Hoffmann-La Roche AG v Centrafarm Vertribsgesellschaft Pharmazeutischer Erzeugnisse [1977] ECR 957 considered - Council Directive 97/80/EEC, art 4(1) - Council Directive 76/207/EEC, art 1,2, 3 and 4 - Council Directive 2002/73/EC, art 3 - Treaty of Rome, Article 234(1) and (3) - Council Directive 97/80/EC - European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (SI 337/2001) - Employment Equality Act 1998 (No 21), s 12 - Equal Status Act 2000 (No 8 ), ss 3(1)(a), 3(2)(a), 7 and 28 - Circuit Court Rules 1997 (SI 312/1997), O 57A rr 6(1) and 6(6) - Court of Justice Act 1936 (No 48), s 37 - Application refused (2007/52CA - McKechnie J - 14/3/2008) [2008] IEHC 464

Kelly v National University of Ireland (aka University College, Dublin)

Facts: The plaintiff was a teacher who alleged discrimination in his refusal to a Masters programme in a University. He alleged gender discrimination in the refusal of his application and he appealed the decision to the Equality Officer against who decision he appealed to the Circuit Court, as provided for in s. 28 Equal Status Act 2000. The plaintiff sought disclosure of documentation relating to the applications to the course, which was refused in the Circuit Court and which was appealed to the High Court. Neither that appeal nor the substantive appeal against the decision of the Equality Officer had yet been determined by the Courts. In 2007, the plaintiff sought to have questions referred to the Court of Justice pursuant to Article 234 EC, as to whether inter alia Article 4(1) of Council Directive 97/80 EC on the burden of proof in cases of discrimination based on sex entitled an applicant for vocational training as to which he had been denied access because the principle of equal treatment was not applied to him could establish direct or indirect discrimination and whether the Burden of Proof Directive (Council Directive 97/80/ EC) had been properly implemented into Irish law by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (SI 337/2001). The plaintiff argued that the Court had to refer questions to the Court of Justice as the High Court constituted a Court of final instances in an appeal from an order of the Circuit Court pursuant to Article 234 (3) EC. The issue arose as to whether the Circuit Court was the appropriate forum and whether the reference was relevant and necessary or covered by the terms of C-283/81 CILFIT v. Minister for Health [1982] ECR 3415.

Held by Murphy J. that the final judgment would be given by the Court not the Circuit Court. The High Court was seised of the appeal, which could be influenced by Community law. There could not be a re-opening of the disclosure issue in the appeal proper. The present application was not interlocutory. The ultimate purpose of the Directives was to obtain the contested documentation in unredacted form. If such documents became available a reference would not be meaningful. The application for a reference was premature at this point and its final determination had to await the appeal process. If the disclosure of the documentation was refused then a reference to the Court of Justice would become necessary. There might be a question of Community law as to whether the Burden of Proof Directive affected the Equal Status Act 2000 and whether it was properly transposed into Irish law.

[Note: In 2010, the proceedings were referred to the Court of Justice pursuant to Article 267 TFEU]

Reporter: E.F.

1 The plaintiff in this case is a qualified teacher and resides at 11 Deansrath Avenue, Clondalkin, Dublin 22.

2 The defendant is an educational establishment descended from the body founded in 1854 as the Catholic University of Ireland, re-formed in 1880 and chartered in its own right in 1908. The university is a constituent university of the National University of Ireland. The Universities Act 1997 renamed the university as "National University of Ireland, Dublin", and the Natinal University of Ireland, Dublin (Change of Name) Order 1998 ( S.I. 447/1998) renamed the university as "University College Dublin - National University of Ireland, Dublin". At all material times it was offering a course leading to a Masters in Social Science (Social Worker) mode A for the academic period 2002 - 2004.

3 The notice party is the statutory appointee of a body established by the Employment Equality Act 1998, namely the Equality Tribunal. That body has the powers, functions and duties assigned to it by virtue of the provisions of the aforesaid Act, together with additional powers granted to it under the Equal Status Act 2000.

4 On the 23 ^rd of December 2001, the plaintiff submitted his completed application form to University College Dublin ("UCD") seeking admission to the aforesaid course for the cycle in question. Having been interviewed in February 2002 as part of the selection process, he was informed by letter dated the 15 ^th March 2002 that he was not being offered a place on the course. Being dissatisfied with this decision and with the follow on correspondence between himself and the college, he made a formal complaint in late-April 2002 of gender discrimination to the Director of the Equality...