McDonough v Minister for Defence

• Jurisdiction: Ireland
• Judge: Mr Justice Lavan
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-HC 970
• Docket Number: Record No 82/1989,[1989 No. 82 J.R.]
• Court: High Court
• Date: 01 January 1991

1990 WJSC-HC 970

THE HIGH COURT

Record No 82/1989

MCDONOUGH v. MIN DEFENCE

JUDICIAL REVIEW

BETWEEN

TURLOUGH FLANNON McDONOUGH

APPLICANT

AND

THE MINISTER FOR DEFENCE IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

FLANAGAN V UCD 1989 ILRM 469

INGLE V O'BRIEN 109 ILTR 7

DPP, PEOPLE V MCCAUGHEY UNREP CCA 20.11.89

ABENGLEN PROPERTIES Ltd, STATE V DUBLIN CORPORATION 1984 IR 381

CROWLEY, STATE V IRISH LAND COMMISSION 1950 IR 250

STEPHENS GREEN CLUB, STATE V LABOUR COURT 1961 IR 85

INGLE V O'BRIEN 109 ILTR 7

GALLAGHER & ORS V CORRIGAN & MIN FOR JUSTICE UNREP BLAYNEY 1.2.88 1988/2/284

QUIRKE V BORD LUTHCHLEAS NA HEIREANN 1988 IR 83

HENEGHAN V WESTERN REGIONAL FISHERIES BOARD 1986 ILRM 225

DEFENCE ACT 1954 S114

DEFENCE FORCE REGULATIONS A7

DEFENCE FORCE REGULATIONS A7 REG 11(2)

KEEGAN, STATE V STARDUST COMPENSATION TRIBUNAL 1986 IR 642

AG, PEOPLE V POYNING 1972 IR 402

CONROY V AG 1965 IR 411

Synopsis:

DEFENCE FORCES

Discipline

Enforcement - Fair procedures - Naval Service - Seaman driver - Service driving permit - Withdrawal - Driver's pay reduced - Charges of misconduct formulated but abandoned - Access to commanding officer denied - Damages - Defence Force Regulations A7, reg. 11(2) - (1989/82 JR - Lavan J. - 8/5/90) - [1991] 2 I.R. 33

|McDonough v. Minister for Defence|

NATURAL JUSTICE

Fair procedures

Constitutional justice - Naval Service - Discipline - Enforcement - Accused seaman accused of misconduct - Complaint formulated and driving permit withdrawn - Penalty imposed - Complaints abandoned - Access to commanding officer denied - Permit not re-issued - (1989/82 JR - Lavan J. - 8/5/90) - [1991] 2 I.R. 33

|McDonough v. Minister for Defence|

1 Judgment of Mr Justice Lavan delivered on the 8th day of May 1990

2 On the 13th of March 1989 the Applicant applied to Johnson J. for liberty to seek Judicial Review by way of Orders of Certiorari quashing

3 1. A decision on the part of the Defendants their servants or agents and in particular Captain Holmes dated the 23rd of March 1988 suspending the Applicant from his duties a Naval driver; and

4 2. A decision on the part of the Defendants their servants or agents and in particular the said Captain Holmes made in or about the month of July 1988 revoking the Applicant's 154 (licence).

5 3. Ancillary relief in the form of damages.

6 4. An Order extending the time for the making of this Application.

7 On reading the Statement dated the 1st of March 1989 signed by the Solicitor for the Applicant and the Affidavit of the Applicant filed on the 8th of March 1989 verifying the facts set out in the Statement and hearing what was offered by Counsel it was duly ordered

8 1. that the Applicant's time for making the said application for leave to apply for Judicial Review be and the same is hereby extended up to and including the date thereof

9 2. that the Applicant be at liberty to amend the said Statement dated the 1st day of March 1989 by the deletion of the grounds therein and the substitution therefor of the following grounds:-

10 "That the said decision of the 31st of March 1988 "grounding" the Applicant was made in disregard of the requirements of natural and constitutional justice in that there was no proper hearing and the decision made in the month of July 1988 was made in disregard of the requirements of natural and/or constitutional justice in that the decision was made without any hearing whatsoever".

11 3. that the Applicant do file in the Central Office within fourteen days from the date thereof a Statement incorporating the amendments set out at paragraph 2 hereof.

12 The said Order was duly served upon the Defendants and in due course the Defendants entered the Statement of Opposition stating that they would oppose the application for Judicial Review on the following grounds:-

13 1. That the withdrawal of the Applicant's AF 154 driving permit was an internal administrative decision of the Naval Service and not a matter for Judicial Review.

14 2. The withdrawal of the Applicant's AF 154 driving permit was made for good and sufficient reason.

15 3. The Applicant was informed prior to the cancellation of his AF 154 driving permit that a recommendation would be made for the cancellation of the said permit but he raised no representation or objection to that course being adopted.

16 4. In the event that the Applicant had any legitimate grievance arising from the revocation of his AF 154 driving permit his remedy lies under Section 114 of the Defence Act 1954and the Regulations made thereunder.

17 5. That the application was premature and unnecessary.

18 6. There had been no disregard for the requirements of natural and/or constitutional justice in the decision of the Respondents.

19 The Affidavit of the Applicant sworn on the 1st of March 1989 sets out that he had enlisted in the Irish Naval Service on the 27th of March 1979. That he had been involved in the Transport Section for approximately three years. At all material times he was stationed at the Naval Base at Haulbowline, Cobh, County Cork and that his pay was approximately £200 per week. He referred to three details carried out by him in the course of his duties as a Naval driver on the 2lst of March 1988.

20 On or about the 23rd of March 1988 the Applicant was called to attend Captain Holmes of the Naval Service in the presence of a Chief Officer Carolan, the Applicant's immediate officer. The said Captain Holmes advised the Applicant that there were a number of complaints against him. These were in relation to three matters of the Applicant's driving. At that meeting the Applicant was informed by Captain Holmes that by virtue of a Report received by him he was going to take disciplinary action against the Applicant. That he intended to "ground" the Applicant and that he would not be allowed to drive other than the tractor on the Naval Base. As a result of the aforesaid meeting the Applicant was taken off transport duties with a loss of earnings of approximately £200 per month net. At this stage the Applicant wished to air his grievance with his Commanding Officer Commander Kavanagh. His request was not granted. He made a further application to see Commander Kavanagh on the 19th of July 1988. He was not seen by his Commander but by Captain Holmes, his complainant, who had been delegated by Commander Kavanagh to deal with the matter. The Applicant did not consider this to be satisfactory as his complaint was specifically against Captain Holmes. He took the view, at that stage, that he was being frustrated and wished to see the Legal Officer in July/August of 1988. He then discussed the matters of complaint with the Legal Officer who advised him in relation thereto.

21 Sometime in July, I believe it was the 12th July 1988 the Applicant was called to the Office of Chief Carolan and was advised that the steps he, the Applicant, had taken to see the Legal Officer could have involved him being charged. Later the Applicant was informed that he was to take up "orders", that is to say that charges were to be laid against him.

22 The charges were to be laid against the Applicant in the afternoon of that day by Lieutenant Commander Elley.

23 Shortly before that the Applicant was again called to attend the Office of Chief Carolan who advised him that one of the charges was being dropped.

24 At that stage there were three specific charges namely

25 1. not filling petrol into a vehicle

26 2. allegedly shooting across a road and

27 3. tail-gating in the course of a detail.

28 The Applicant states that he had a full answer to all of these charges and these answers are fully detailed in his Affidavit. In or about this time he was told that the third charge would be dropped. He was instructed to go to Warrant Officer Murphy's Office where the remaining two charges would be collected. He attended with Warrant Officer Murphy and was then informed that he had been on very dangerous ground as he had gone over the heads of his Naval Officers by going to the Legal Officer and that this was a very serious matter. He said Warrant Officer Murphy then informed the Applicant that all charges were being dropped and he tore up the charges in the Applicant's presence.

29 In order to complete the formalities the Applicant was required to be paraded before Lieutenant Commander Elley and this was done shortly thereafter. At that time Lieutenant Commander Elley informed the Applicant that he was not proceeding with the charges but that he was not dropping the charges either. He went on to say that the Applicant was to be reprimanded for going to the Legal Officer. Thereafter the Applicant sought to clarify the position as to whether the charges were being dealt with or not and after a number of meetings and telephone calls he was informed that the charges were being dropped. At that stage the Applicant requested to have his licence AF 154 back and Lieutenant Commander Elley informed him that he had no authority to put him on the road.

30 The Applicant swore a Supplemental Affidavit dated the 2nd of August 1989 in which he deals with the allegations against him and concludes that in relation to the suggestion by Captain Holmes that the Applicant should have availed of Defence Force Regulations he states that he made three applications to see his Commanding Officer and got no reply and in the circumstances he was of the view that he was left with no alternative but to seek relief before the High Court.

31 The Respondents relied on the Affidavit of...