O'Leary v Minister for Transport, Energy and Communications

JurisdictionIreland
CourtSupreme Court
JudgeHon. Mrs Justice McGuinness
Judgment Date18 May 2000
Neutral Citation[2000] IESC 16
Docket NumberRecord No.297/99

[2000] IESC 16

THE SUPREME COURT

Denham, J.

Barron, J.

McGuinness, J.

Record No.297/99
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

Citations:

RSC O.28 r1

TRANSPORT ACT 1950 S7(4)

RSC O.84 r21

O'LEARY V MIN FOR TRANSPORT 2000 1 ILRM 391

CONWAY V IRISH NATIONAL TEACHERS ORGANISATION (INTO) 1991 2 IR 305

KROPS V IRISH FORESTRY BOARD 1995 2 IR 113

MCCORMACK V GARDA COMPLAINTS BOARD 1997 2 IR 489

BROONE V CASELL & CO 1972 AC 1027

BELL V PEDERSON 1995 3 IR 511

DPP V CORBETT 1992 ILRM 674

Synopsis

Practice and Procedure

Practice and procedure; amendment of points of claim; applicant contending wrongful dismissal; appeal against judgment and order of the High Court dismissing applicant's application pursuant to O.28 r.1 RSC to amend his points of claim; applicant had sought to amend his points of claim to include a claim that first-named respondent conspired with other and unnamed parties to procure the dismissal of the applicant from his office as chairman of CIE; whether the trial judge was correct in his approach in holding that he would treat the application as though it fell to be dealt with solely under O.28 r.1 and without reference to the fact that the proceedings were judicial review proceedings; whether the trial judge had erred in determining that a claim of conspiracy had no relevance to the relief sought by the applicant and that the claim was not necessary for the purposes of determining the real questions in controversy between the parties.

Held: Appeal allowed.

O'Leary v. Minister for Transport, Energy and Communications - Supreme Court: Denham J., Barron J., McGuinness J. - 18/05/2000

- [2001] 1 ILRM 132

The applicant brought proceedings seeking to challenge his dismissal from his position as chairman of Córas Iompair Éireann. The case was originally a judicial review action but had been remitted to plenary hearing. In this application the applicant sought leave to include a claim of conspiracy. The application was made well outside the time limits that would apply in a judicial review action. In the High Court Kelly J refused the application holding that the additional claim of conspiracy was not necessary to determine the issues in the case. The applicant appealed. McGuinness J, delivering judgment, held that the claim of conspiracy was relevant particularly in regard to a claim of damages. The learned High Court judge’s refusal of the application appeared to be influenced by the judicial review origins of the case and the time limits that would have otherwise arisen. The appeal would be allowed and the case should proceed without any further delay.

Hon. Mrs Justice McGuinness
[NEM DISS]
1

This is an appeal against the judgment and order of Kelly J. dismissing the Applicant's application pursuant to Order 28, Rule 1 of the Rules of the Superior Courts to amend his Points of Claim in the above entitled action. The Applicant had sought to amend his points of claim so as to include a claim that the first named Respondent conspired with other named and unnamed parties to procure the dismissal of the Applicant from his office as Chairman of Coras Iompair Eireann.

2

The background to the Applicant's proceedings and to the motion to amend his points of claim is fully set out by the learned High Court Judge in his judgment delivered on the 26th November 1999. It may be summarised as follows.

3

The Applicant was appointed to the office of Chairman of Coras Iompair Eireann by the then 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 left office are very much in issue in these proceedings. The Applicant contends that he was wrongfully dismissed. The Respondents deny this and contend that the resigned from the office.

4

On the 25th March 1996 McCracken J. in the High Court granted the Applicant leave to apply for judicial review in respect of his alleged dismissal from office on the 25th April 1995. The principle relief sought in these proceedings was an Order of Certiorari to quash"the decision of the first named Respondent to dismiss the Applicant from his position as Chairman of Coras Iompair Eireann with effect from the 25th April 1995". The Applicant at that stage also sought reinstatement in his position, an order declaring that the Minister or the Government in dismissing the Applicant was obliged to comply with the requirements of Section 7(4) of the Transport Act1950, and a number of further orders, together with damages. Since the application for leave was made well 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. The Applicant in his grounding affidavit explains his delay as being due to severe personal pressure arising out of allegations of wrongdoing made against him at the time when he ceased to be Chairman of C.I.E.

5

On the 23rd May 1996 the Respondents filed their Statement of Opposition and an affidavit in support thereof was 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 the like period being afforded to the Respondents to deliver a defence.

7

On the 8th October 1997 the Applicant's delivered Points of Claim. Points of Defence were delivered on the 9th March 1998. The Applicant took no further steps in the proceedings 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 seeking leave to amend the Points of Claim which was dated 27th July 1999 and made returnable for the 18th October 1999. This Motion came on for hearing before the learned High Court Judge on 15th November 1999. Following the hearing the learned High Court Judge reserved his judgment. On 26th November 1999 he gave judgment and made an order dismissing the Applicant's motion.

8

The points of claim as originally delivered set out the Applicant's claim as follows:

9

2 "1. The Applicant is a businessman in the Crane Hire business. He is currently a Director of Aer Rianta CPT, and Aer Rianta International Limited.

10

2. The Applicant was appointed to the Bord of Coras Iompair Eireann on the 1st July 1994 by the then Minister for Transport, Mr Brian Cowen, for a period of five years finishing on the 30th June 1999.

11

3. On or about the 25th day of August the Applicant was asked by the Minister for Transport, Mr Michael Lowry, the first named 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 as Chairman of Coras Iompair Eireann 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 Coras Iompair Eireann which did not involve any Chairman. The Minister indicated that the actual decision in that regard was due to be taken at a Cabinet Meeting later that morning.

12

4. The aforesaid purported dismissal was effected in breach of the rules of natural and/or constitutional justice and/or was ultra vires the powers of the first named Respondent, and/or the Government, under the Transport Act1950and in particular Section 7(4) thereof.

13

5. As a result of the said wrongful dismissal the Applicant has suffered great distress, embarrassment, inconvenience and damage to his reputation and has suffered loss and damage."

14

Particulars of breaches of the rules of natural and constitutional justice were pleaded. The Applicant sought the following reliefs:

15

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

16

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

17

(c) An inquiry as to damages.

18

(d) Damages.

19

(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 Act1950.

20

(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."

21

In his motion of the 27th July 1999 the Applicant sought leave to include a final paragraph 6 in his points of claim as follows:

22

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

23

In support of his Motion to amend his points of claim the Applicant filed three affidavits. The Respondent file do replying affidavit. The content of these affidavit is helpfully set out by the learned High Court Judge in his judgment as follows:

"The first affidavit sworn was that of Tony Rooney. This was sworn on the 1st June...

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