McDonald v Bord na gCon

• Jurisdiction: Ireland
• Judgment Date: 01 March 1965
• Date: 01 March 1965
• Court: Supreme Court

Supreme Court.

McDonald v. Bord na gCon.

DAVID McDONALD

Plaintiff

and

BORD na gCON and THE ATTORNEY GENERAL

Defendants.

Constitution of Ireland - Statute - Validity - Repugnancy to provisions of the Constitution - Greyhound Industry Act, 1958, s. 47 - Powers of Board in course of making exclusion order - Whether Board exercising powers of a judicial nature - Whether powers are limited powers of a judicial nature - Investigation by Board - Requirements of natural justice - Constitution of Ireland, Articles 34, 37, 38, 40 and 43 - Greyhound Industry Act, 1958 (No. 12 of 1958), ss. 43, 44 and 47 - Greyhound Race Track (Racing) Regulations, 1960 (S.I., 1960, No. 64.)

Preliminary Issue.

On the 14th February, 1961, Bord na gCon (referred to herein as "the Board") made an exclusion order under s. 47 of the Greyhound Industry Act, 1958, against the plaintiff, David McDonald, who thereupon commenced proceedings in the High Court, claiming declarations that the said s. 47 was repugnant to the provisions of the Constitution; that the exclusion order 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. On the 16th July, 1962, the Attorney General applied to the High Court (Kenny J.) by notice of motion for an order that the issue as to the constitutionality of s. 47 of the Act of 1958 should be tried as a preliminary issue, and the motion was supported by the Board. Kenny J. made the order asked for, and an appeal therefrom by the plaintiff was dismissed by the Supreme Court (1).

The plaintiff, in his originating plenary summons, claimed"1, A declaration that s. 47 of the Greyhound Industry Act, 1958 (No. 12 of 1958), is repugnant to the Constitution, and invalid;

2, That an exclusion order, purported to have been made by the Board on the 14th day of February, 1961, in respect of the plaintiff be declared to be unconstitutional and invalid, and be set aside and discharged by order of the Court;

3, Further, or alternatively, that Art. 31; Art. 13, sub-Art. (2), para. (ii); and Art. 13, sub-Art. (4), of the Regulations purporting to have been made by the Board on the 30th day of March, 1960 (S.I., No. 64 of 1960), in the exercise of powers

conferred on it by the said Act of 1958, be declared to beultra vires the said statutory powers, invalid and null and void in law;

4, That the said purported exclusion order be declared to be inoperative, invalid and bad in law, and that it should be set aside and discharged by order of the Court, on the grounds (a) that the consent of the Irish Coursing Club was not duly given to the making of the said purported exclusion order in the manner or as required by the said Act of 1958 and by law:

(b) That the Board in making the said purported exclusion order acted upon or took into consideration the findings and/or recommendation of the Control Committee established and acting under the invalid regulations hereinbefore referred to, which Committee had no legal authority under the said Act of 1958, or otherwise, to make the said findings or recommendation;

(c) That the said findings and recommendation of such Control Committee and the said purported exclusion order were made in disregard to the provisions of the said Act of 1958;

(d) That the said findings and recommendation of such Control Committee and the said purported exclusion order, were made in disregard of the essential principles of natural justice;

5, Damages against the Board;

6, An injunction to restrain the Board, its officers, servants or agents, from enforcing or acting upon the said purported exclusion order, or from acting upon the said findings or recommendation of such Control Committee;

7, All necessary and ancillary relief;

8, The costs of the proceedings."

On the 22nd January, 1963, the hearing commenced before Kenny J. on the trial of the issue of the constitutionality of s. 47 of the Act of 1958.

From the above judgment the defendants, the Attorney General and Bord na gCon appealed to the Supreme Court (1).

The grounds of appeal relied upon by the Attorney General were "that the learned High Court Judge misdirected himself in law in holding 1, that s. 47 of the Greyhound Industry Act is repugnant to the Constitution.

2, That an exclusion order is a legal prohibition binding on the person against whom it is made against his being present at the functions mentioned in s. 47, sub-s. 1, of the Greyhound Industry Act, 1958.

3, That if any person against whom an exclusion order is made obtains entrance to a greyhound race meeting without misrepresentation, he would by payment acquire a contractual right to remain on the greyhound race track until the races had concluded.

4, That an exclusion order is similar in nature to an injunction granted by a Court.

5, That an exclusion order, when considered against its legal background, (a) prohibits entry upon greyhound race tracks and attendance at authorised coursing meetings and at public sales of greyhounds;

(b) Corresponds in form to an injunction and is thus characteristic of a Court of law in this country except that it is not enforced by the executive power of the State;

(c) Is based upon a determination of the guilt of a person of a charge against him;

(d) Deprives the person against whom it is made of contractual rights which he would acquire by paying for admission to the greyhound race track and of the benefit of the liberty or licence which most citizens of the State have to attend at authorised coursing meetings and at public sales of greyhounds;

(e) Imposes a penalty similar to that which Courts in this country may impose.

6, That the making of an exclusion order under s. 47 of the Greyhound Industry Act, 1958, is an administration of justice.

7, That the making of an exclusion order involves a determination (not subject to appeal) that the person against whom it is proposed to make it has been guilty of some disreputable behaviour or conduct.

8, That the powers and functions conferred on Bord na gCon by s. 47 of the Greyhound Industry Act, 1958, are not limited functions and powers of a judicial nature in matters other than criminal matters."

The grounds of appeal relied upon on behalf of Bord na gCon were as follows:—

"1, That the trial Judge was wrong in law in declaring the said s. 47 to be unconstitutional.

2, That the trial Judge was wrong in law in holding that an exclusion order made pursuant to the said section was a legal prohibition binding on the person against whom such exclusion order was made against his being present at the functions mentioned in sub-s. 1 of the said sect. 47.

3, That the trial Judge was wrong in law in holding that the said defendants, Bord na gCon, were administering justice when they made an exclusion order.

4. That if the trial Judge was right in holding that the defendants, Bord na gCon, were administering justice when they made an exclusion order he was wrong in law in holding that the functions and powers of a judicial nature conferred on the defendants, Bord na gCon, by s. 47 of the said Act were not limited functions and powers.

5. That the learned trial Judge was wrong in law in holding that an exclusion order corresponds in form to an injunction or is an order characteristic of a Court of law.

6. That the learned trial Judge was wrong in law in holding that a person against whom an exclusion order is in force and who is aware that it is in force acquires by contract a right to remain on any licensed greyhound race track or at any authorised coursing meeting when he has paid an admission charge to a person who did not recognise him and would not have accepted payment or admitted him had he recognised him.

7. That the learned trial Judge was wrong in law in holding that an exclusion order imposes a penalty similar to that which Courts may impose and wrong in holding that there was any similarity between an exclusion order and a disqualification order made under the Road Traffic Acts."

The Greyhound Industry Act, 1958, by s. 47 empowered Bord na gCon, with the consent of the Irish Coursing Club, by order (in the section referred to as an exclusion order) to exclude a person from (a) being on any greyhound race track, (b) being at any authorised coursing meeting, (c) being at any public sale of greyhounds. In pursuance of powers granted under the Act, the Greyhound Race Track (Racing) Regulations, 1960, were made under which a committee (known as the Control Committee) was established. The Control Committee was empowered to investigate complaints made against persons engaged in the greyhound industry and to report and make recommendations to Bord na gCon in relation to such complaints and the action to be taken in respect thereof. On the 28th September, 1960, the plaintiff brought a greyhound to a greyhound race track in Cork for the purpose of running the greyhound in a heat of a race, the Cork Grand National, which was being run on that evening. On production of the identity card issued in respect of the greyhound, it was noticed by an official at the track that certain figures, relating to time and distance, on the card had been altered, and did not correspond with figures appearing on the race card on sale to the public at the meeting. As a result, the dog was not allowed to run in the heat for which it had been entered. On the 11th October, 1960, a letter was written to the plaintiff, on behalf of the Control Committee, requesting him to attend at an inquiry to be held on the 17th October, 1960, at which the Control Committee intended to investigate the changing of the entries on the identity card. The plaintiff attended the inquiry and later he was informed, by letter dated the 1st December, 1960, that the Control Committee had decided to recommend to the Board that an exclusion order should be...