McDonald v Bord na gCon

JurisdictionIreland
CourtSupreme Court
Judgment Date10 December 1964
Date10 December 1964

Supreme Court.

McDonald v. Bord na gCon.
DAVID McDONALD
Plaintiff
and
BORD NA gCONand THE ATTORNEY GENERAL
Defendants.

Practice - Procedure - Trial - Issue raised as to whether section of Act repugnant to Constitution - Question of law - Preliminary point - Whether question of law should be tried as a preliminary issue - Greyhound Industry Act, 1958 (No. 12 of 1958), s. 47 - Rules of the Supreme Court (Ireland), 1905, Or. XXV, r. 2; Or. XXXIV, r. 2 - Rules of the High Court and Supreme Court1926, Or. XX.

Notice of Motion.

The plaintiff, David McDonald, had had an exclusion order made against him by the first-named defendants, Bord na gCon, a Board established under the Greyhound Industry Act, 1958. As a result of the exclusion order he was not permitted to be on any greyhound race track, at any authorised coursing meeting or public sale of greyhounds. He commenced proceedings against the Board and the Attorney General, claiming declarations that s. 47 of the Greyhound Industry Act, 1958, was repugnant to the Constitution, that the exclusion order made against him was unconstitutional and invalid, that certain of the regulations made by the Board were not authorised by the Act and that the exclusion order was invalid because it was made in disregard of the principles of natural justice.

The Attorney General applied in the High Court by notice of motion for an order under Or. XXXIV, r. 2, of the Rules of the Supreme Court (Ireland), 1905, that the issue as to the constitutionality or otherwise of s. 47 of the Greyhound Industry Act, 1958, should be tried as a preliminary point. The motion, which was supported by the Board, was resisted by the plaintiff.

From the above judgment the plaintiff appealed to the Supreme Court (1).

The grounds of his appeal were 1, that the learned High Court Judge misdirected himself in law in giving the said judgment and making the said order;

2, That the granting of the said order involves the trial of the constitutional issue arising in this action as an academic issue, and requires the Court in effect to give an advisory opinion, without any evidence being heard as to the facts upon which the constitutional issue arises, and that it is contrary to law and to the practice of the Court to entertain such an academic issue or give such advisory opinion;

3, That it was contrary to established precedent in similar actions in the Irish Courts involving constitutional issues to grant the said order;

4, That the plaintiff is gravely prejudiced by the granting of the said order.

The plaintiff, M., brought proceedings against G., which involved complicated questions of fact and also raised the question whether s. 47 of the Greyhound Industry Act, 1958, was repugnant to the Constitution. The Attorney General was added as a defendant on the constitutional issue. The Attorney General then applied for an order under Or. XXXIV, r. 2, of the Rules of the Supreme Court (Ir.), 1905, that the issue as to whether s. 47 of the Greyhound Industry Act, 1958, was repugnant to the Constitution should be tried as a preliminary point.

Held, by Kenny J., that considerations of time and expense indicated that the order should be made, and he accordingly made the order that the question of the constitutionality of s. 47 should be tried as a preliminary issue. From that order the plaintiff appealed to the Supreme Court.

Held, by the Supreme Court (Lavery, Kingsmill Moore, Haugh and Walsh JJ.; Ó Dálaigh ó dálaigh C.J. dissenting), affirming Kenny J., that it would be quite inappropriate to try the other issues in the case before the constitutional issue had been decided.

The appeal was accordingly dismissed.

Per Lavery J.: The question of the costs which may be involved, if proper to be considered at all, cannot override the real considerations.

Kenny J. :—

The Greyhound Industry Act, 1958, established a Board known as Bord na gCon which was to be a body corporate and which was given power to make regulations relating to the conduct of greyhound races. The Act recognised the Irish Coursing Club as being the controlling authority for the breeding and coursing of greyhounds. Sect. 47 of the Act provides that the Board with the consent of the Club or the Club with the consent of the Board may make an exclusion order prohibiting a person from being on any greyhound race track or at any authorised coursing meeting or attending at any public sale of greyhounds. Before such an order can be made, the Board must serve notice of its intention to make or consent to the making of such an order on the person concerned, and if he makes any representations must consider them. So long as such an exclusion order is in force the person against whom it is made may be removed by force from any greyhound race track, authorised coursing meeting or public sale of greyhounds which he attends.

On the 14th February, 1961, the Board made an exclusion order against Mr. David McDonald, the plaintiff in this action, by which he was prohibited from being on any greyhound racing track or at any authorised coursing meeting or attending at any public sales of greyhounds. The plaintiff then brought proceedings against the Board and the Attorney General and an elaborate statement...

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