O'Leary v Minister for Transport

• Jurisdiction: Ireland
• Judge: Mr.Justice Kelly,Mr Justice Francis D Murphy
• Judgment Date: 26 November 1999
• Neutral Citation: [1999] IEHC 49
• Docket Number: 94/97,113 JR 1996
• Court: High Court
• Date: 26 November 1999

O'LEARY v. MINISTER FOR TRANSPORT & ORS

BETWEEN

DERMOT O'LEARY

APPLICANT

AND

THE MINISTER FOR TRANSPORT, ENERGY AND COMMUNICATIONS, MICHAEL LOWRY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[1999] IEHC 49

113 JR 1996

THE HIGH COURT

Synopsis

Practice and Procedure

Practice and procedure; judicial review; applicant seeks leave to introduce new claim into statement of claim; whether amendment is necessary for the purpose of determining the real questions in controversy between the parties; O. 28, r. 1, Rules of the Superior Courts.

Held: Application refused.

O'Leary v. The Minister For Transport, Energy and Communications - High Court: Kelly J. - 26/11/1999 - [2000] 1 ILRM 391

The nature of the proceedings before the Court did not change by virtue of the fact that liberty was granted to deliver a statement of claim and the Court should only allow an amendment of the original grounds, in respect of which leave to seek judicial review was granted, in exceptional circumstances. However, even if the application did come within order 28, rule 1 of the Rules of the Superior Courts it would still fail as the claim of conspiracy had no relevance to the reliefs sought and therefore an amendment would not be necessary to determine the real question in controversy between the parties. The High Court so held in refusing the application.

Citations:

RSC O.84 r21

RSC O.28 r1

TRANSPORT ACT 1950 S7(4)

MCCORMACK V GARDA COMPLAINTS BOARD 1997 2 IR 489

1 Mr.Justice Kelly delivered the 26th day of November 1999.

BACKGROUND

2 The Applicant is a former Chairman of Córas Iompair Éireann. He was appointed to that office by the Government for a term commencing on the 1st July 1994 and ending on the 30th June 1999. He ceased to hold that office on the 25th April 1995. The circumstances in which he did so are very much in issue in these proceedings. The Applicant contends that he was wrongfully dismissed. The Respondents deny this contend that he resigned from the office.

3 Eleven months later on the 25th March 1996, McCracken J. gave the Applicant leave to apply for Judicial Review in respect of the events of the 25th April 1995. The principal relief sought is an Order of Certiorari which seeks to quash " the decision of the first named Defendant to dismiss the Applicant from his position as Chairman of Córas Iompair Éireann with effect form the 25th April 1995".

4 As this application was made long outside the period prescribed by Order 84 Rule 21 of the Rules of the Superior Courts, McCracken J. granted an extension of time for the making of the application. He did so having regard to the reason advanced at paragraphs (9) and (10) of the Applicant's grounding affidavit.

5 On the 23rd May 1996 the Respondents filed their Statements of Opposition and an affidavit in support thereof sworn by John Loughrey, the Secretary to the Department of Transport, Energy and Communications. Further affidavits were exchanged between the parties and discovery was made by the Respondents.

6 On the 14th July 1997 Smyth J. by consent ordered that the action should stand adjourned for plenary hearing and gave liberty to the Applicant to deliver a Statement of Claim within three weeks from that date with a like period being afforded to the Respondents to deliver a defence.

7 On the 8th October 1997 the Applicant delivered points of claim. Points of defence were delivered on the 9th March 1998. The proceedings then became dormant and remained so until a Notice of Intention to Proceed was served on the 23rd June 1999. This was followed by the issue of the notice of motion which falls for my consideration on this application. It was dated the 27th July 1999 and made returnable for the 18th October 1999. It came on for hearing before me on Monday the 15th November 1999.

THE PRESENT MOTION

8 The Applicant seeks leave to amend the points of claim delivered by him and relies upon the provisions of Order 28 Rule 1 of the Rules of the Superior Courts in support of that application.

9 The points of claim in their unamended form pray for the following reliefs:-

10 a " (a) An Order of Certiorari quashing the decision of the first named Respondent to dismiss the Applicant from his position of Chairman of Córas Iompair Éireann with effect from the 25th April 1995.

11 (b) An Order directing the first and second named Respondent to pay the Applicant his arrears of salary and expenses.

12 (c) An inquiry as to damages.

13 (d) Damages.

14 (e) A declaration that the Minister or the Government in dismissing the Applicant was obliged to comply with the requirements of Section 7(4) of the Transport Act, 1950.

15 (f) A declaration that the Minister, in purporting to dismiss the Applicant, was bound to comply with the provisions of natural and/or constitutional justice".

16 No amendment is sought concerning the prayer in the points of claim. Rather, leave is sought to introduce a new claim into the proceedings. This is a claim of conspiracy. The Applicant wishes to include the following paragraph in the points of claim:-

" Further, or in the alternative, and without prejudice to the aforesaid, the first named Respondent and one Michael McDonell and one John Loughrey and one Michael Brennan and other, servants of the second named Respondent, conspired, with intent to injure the Applicant, to procure the dismissal of the Applicant which said dismissed occurred in the matter described in paragraph 3 above and which resulted in the loss set out at paragraph 5 above".

17 Paragraph (3) of the point of claim in their unamended form reads:-

" On or about the 25th day of August 1995 (sic) the Applicant was asked by the Minister for Transport, Mr. Michael Lowry, the first name Respondent herein to come to his office for a meeting. The Applicant attended at the Minister's office as requested. In the course of the meeting the first named Respondent purported to dismiss the Applicant from his office of Chairman of Córas Iompair Éireann or gave him to understand that he had been dismissed. The reason given by the first named Respondent for the purported dismissal was that the Government wished to revert to a management system in relation to Córus Iompair Éireann which did not involve any Chairman. The Minister indicated that the actual decision in the regard was due to be taken at a Cabinet meeting later that morning".

THE EVIDENCE ADDUCED ON THIS APPLICATION

18 In all four affidavits were filed concerning this application. Three were sworn on behalf of the Applicant and one on behalf of the Respondents.

19 The first affidavit sworn was that of Tony Rooney. This was sworn on the 1st June 1999. Although not stated expressly in the affidavit, it is clear that Mr. Rooney was a member of the Board of Córas Iompair Éireann at the relevant times. He was also the General Manager of the Brekeley Court Hotel reporting to a Mr. Michael Brennan, the then General Manager of the Doyle Hotel Group. His affidavit recounts a conversation he had with Mr. Brennan on the 25th April 1995 where, inter alia, he alleges that Mr. Brennan had received a telephone call from Mr. Michael McDonnell who is described as a senior Civil Servant at the Department of Transport, Energy and Communications expressing a wish that Mr. Rooney should vote for him (Mr. McDonnell) when he would be proposed for the position of Group Chief Executive of Córas Iompair Éireann by the Applicant's successor as Chairman at a Board meeting which was to take place on the 3rd May 1995. The affidavit goes on to allege that Mr. Brennan stated that the Secretary of the Department, Mr. Loughrey and Mr. McDonnell had arranged for the Applicant to be dismissed by the Minister and that it was most important for Mr. Rooney to vote for Mr. McDonnell when he would be proposed for the position of Group Chief Executive. Mr. Rooney alleges that he felt very uncomfortable with the proposition which was put to him. His conversation with Mr. Brennan allegedly concluded on terms where he was told that if he didn't conform he would know the consequences.

20 It is clear that this part of the affidavit recounts hearsay evidence from Mr. Brennan which Mr. Rooney would not be permitted to give at the trial of these proceedings. As Mr. Brennan is dead, this evidence could never be adduced.

21 The next part of the affidavit describes what happened at a Córas Iompair Éireann Board meting on the 3rd May 1995 when Mr. McDonnell was appointed Group Chief Executive. The following paragraph of the affidavit again recounts a conversation had with the late Mr. Brennan which would not be admissible at the trail.

22 Finally, Mr. Rooney sets forth a conversation which he had with Mr. McDonnell on the 2nd September 1995. He says that in the course of that conversation, Mr. McDonnell admitted to conspiring with Mr. Loughery to have the Applicant fired and said that the Minister went along with their suggestion. He also says that Mr. McDonnell indicated to him that he would be doing his best to ensure that he (Mr. Rooney) would be kept on as a member of the Board of Córas Iompoair Éireann. He was not kept on the Board since he also departed from his directorship on the 17th November 1995. The affidavit does not disclose that the commenced proceeding in the Circuit Court in respect of this departure.

23 Two affidavits were also sworn by the Applicant's Solicitor and nothing turns on them save that in the second of them it is disclosed that at the suggestion of a Mr. Noel Kennedy, former Chief Executive of Córas Iompair Éireann, Mr. Rooney attended at the Applicant's Solicitor's on the 10th September 1998 and furnished particulars as set out in his affidavit sworn on 1st June 1999. When this information came to hand in September 1998, further investigations were directed. This affidavit also admits that when this action was consensually adjourned for...