McMenamin v Ireland

JurisdictionIreland
JudgeHamilton C.J,O'Flaherty J.,BLAYNEY J.
Judgment Date19 December 1996
Neutral Citation1997 WJSC-SC 1557
CourtSupreme Court
Docket Number[1993 No. 96 J.R.; S.C. No. 296 of 1994]
Date19 December 1996

1997 WJSC-SC 1557

THE SUPREME COURT

HAMILTON C.J.

O'FLAHERTY J.

BLAYNEY J.

DENHAM J.

BARRINGTON J.

294/94
No. 96 of 1993
MAMENAMIN v. IRELAND
JUDICIAL REVIEW

BETWEEN:

DISTRICT JUDGE LIAM OLIVER McMENAMIN
Applicant

and

IRELAND, THE MINISTER FOR JUSTICE AND THE ATTORNEYGENERAL
Respondents/Appellants

Citations:

COURTS OF JUSTICE & COURT OFFICERS (SUPERANNUATION) ACT 1961 S2(5)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 19611961 PART III ART 8(2)

RSC O.84 r22(4)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S31

CONSTITUTION ART 40.1

CONSTITUTION ART 35.5

SOMJEE V MIN FOR JUSTICE 1981 ILRM 324

COURTS OF JUSTICE & COURT OFFICERS (SUPERANNUATION) ACT 1961 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 19611961 SCHED 2 PART III

CONSTITUTION ART 36

CONSTITUTION ART 15.2.1

MCKENNA V AN TAOISEACH (NO 2) 1995 2 IR 1

CONSTITUTION ART 34.2

CONSTITUTION ART 34.3.1

CONSTITUTION ART 34.3.4

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S5

CONSTITUTION ART 35.2

CONSTITUTION ART 35.3

R V POSTMASTER GENERAL 1876 12 BD 658

CONSTITUTION ART 12.11.3

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S46

COURTS OF JUSTICE & COURT OFFICERS (SUPERANNUATION) ACT 1961 S2(3)

COURTS OF JUSTICE & COURT OFFICERS (SUPERANNUATION) ACT 1961 S2(4)

KOTSONOURIS RETREAT FROM REVOLUTION

COURTS OF JUSTICE ACT 1924

MCEVITT V DELAP 1981 IR 125

CRIMINAL JUSTICE ACT 1951 S4

CRIMINAL JUSTICE ACT 1951 S2

CRIMINAL PROCEDURE ACT 1967

LARCENY ACT 1916

CRIMINAL JUSTICE ACT 1984 S12

CRIMINAL JUSTICE ACT 1984 S17

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994

COURTS ACT 1991 S4(c)

CIVIL LIABILITY ACT 1961 PART III

FAMILY LAW (PROTECTION OF SPOUSES & CHILDREN) ACT 1981

DOMESTIC VIOLENCE ACT 1996

COURTS OF JUSTICE (DISTRICT COURT) ACT 1946 S20

O'BYRNE V MIN FOR FINANCE & AG 1959 IR 1

IRISH NATIONALITY & CITIZENS ACT 1986 S3

WALSHE, STATE V MURPHY 1981 IR 275

CONSTITUTION ART 15.4.1

QUINN, STATE V RYAN 1965 IR 70

TRIMBOLE, STATE V GOV OF MOUNTJOY PRISON 1985 IR 550

BYRNE V IRELAND 1972 IR 241

COURTS OF JUSTICE ACT 1953

HARTLEY, STATE V GOV OF MOUNTJOY PRISON UNREP O DALAIGH 21.12.67

CAFOLLA V AG 1985 IR 486

BRENNAN V AG 1984 ILRM 355

COURTS OF JUSTICE & COURT OFFICERS (SUPERANNUATION) ACT 1961 S2(2)

Synopsis:

CONSTITUTIONAL LAW

Judicial review - declaration - statutory arrangements for pensions of District court judges - de facto diminution in remuneration - whether in breach of Art.35(5) - whether state constitutionally obliged to enact pension schemes which are not irrational or wholly inequitable - whether appropriate to grant relief - separation of powers - whether disparity in pension arrangements for District and Circuit court judges in breach of constitutional equality requirements - Held: Not appropriate to grant relief, owing to respect which organs of state owe to one another - [per Hamilton CJ: pension scheme not irrational or wholly inequitable, but failure to adjust scheme to take account of changing socio- economic circumstances was in breach of Art.35(5)] [per Blayney J: no constitutional duty not to enact irrational or wholly inequitable pension schemes for judiciary] [per O'Flaherty J: loss of income represented an unconstitutional erosion of judicial independence] - (Supreme Court: Hamilton C.J., O'Flaherty J., Blayney J., Denham J., Barrington J. - 19/12/1996)

|McMenamin v. Ireland|

1

Judgment delivered on the 19th day of December 1996 by Hamilton C.J .[DENHAM BARRINGTON CONC]

2

This is an appeal brought by the Respondents against a portion of the judgment delivered by Mr. Justice Geoghegan on the 23rd of June, 1994 and a portion of the Order made by him in pursuance of the said judgment, on the 1st day of July 1994.

3

The portion of the order against which the Respondents have appealed is that which provided that

4

"The Court doth declare that the State in permitting a gross inequality to arise between the reduction in pension of District Court Judges and the costs of the lump sum gratuities intended to be met by such reduction is in breach of its constitutional duty to secure pension rights for District Judges which are not irrational or whollyinequitable."

5

The order was made on foot of proceedings for judicial review instituted by District Judge McMenamin, the Applicant herein, (hereinafter referred to as "the Applicant") and which related to the lump sum payable to him and other judges of the District Court on their retirement and the method of calculation thereof.

6

By order of the High Court made on the 19th day of April 1993 the Applicant had been granted leave to apply by way of an application for judicial review for:

7

(a) an order of certiorari quashing a decision of the Minister forJustice ("the Minister") dated in or about the 6th day of January 1993 which refused to change the pension arrangements for judges of the District Court, including the Applicant;

8

(b) a declaration that Section 2(5) of the Court of Justice and Court Officers (Superannuation) Act, 1961and Article 8(2) of Part III of the Second Schedule of the Courts (Supplemental Provisions) Act, 1961are unconstitutional and of no effect;

9

(c) further and other relief;

10

(d) costs.

11

In pursuance of such leave, the Applicant caused to be issued a notice of motion dated the 23rd day of April, 1993 claiming the said relief, which motion was served on the Chief State Solicitor on behalf of theRespondents.

12

The grounds upon which such relief was sought were set forth in the statement required to ground application for judicial review, whichstatement was verified by the affidavit of the plaintiff sworn on the 16th day of March 1993.

13

The statement of grounds of opposition pursuant to Order 84 Rule 22(4) of the Rules of the Superior Court was filed on the 8th day of July1993.

14

Paragraph 13 of the said grounds of opposition provided that:-

"The proceedings herein raised issues of fact and law in respect of which it is more appropriate that this honourable court should rule thereon after plenary hearing on oral evidence. The Respondents reserved their entitlement to reply to this honourable court for appropriate directions in respect of a plenary hearingherein."

15

On the 12th day of July 1993 the Respondents by notice of motion sought-

16

1. an order directing plenary hearing of the application for judicial review herein;

17

2. Such directions as to pleadings as to the court may seemfit.

18

By agreement of the parties to the proceedings the following schedule of the issues to be tried by the learned trial judge was prepared.

19

1. What were the applicable provisions on the appointment of the Applicant as a judge of the District Court in respect of pensionentitlements?

20

2. Is the Applicant bound by his acceptance, on his appointment as a judge of the District Court on or about the 1st March 1983, of the applicable provisions in respect of pension entitlements?

21

3. Was a decision made by the second named respondent on or about the 6th January 1993 refusing to change the pension arrangements for judges of the District Court including the Applicant?

22

4. If such a decision was made by the second-named respondent, is the second named respondent empowered to change the pension arrangements for judges of the District Court including the Applicant?

23

5. Are the statutory provisions providing for the statement of superannuation gratuities (i.e. lump sum gratuities on retirement) as provided for under the Court of Justice and Court Officers(Superannuation) Act 1961(No. 16 of 1961) and, in particular, section 2(5) thereof invalid having regard to the provisions of the Constitution of Ireland on the alleged grounds following:

24

(a) The said provisions are arbitrary, unreasonable and not based on any rational or actuarial premise.

25

(b) The said provisions violate the Applicant's constitutional right to fair procedures and to a rational system of statutory pensionentitlement.

26

(c) The said statutory calculation provided for in the said Act is arbitrary and represents an approximate rule of thumb.

27

6. Is there a standard actuarial practice in relation to abatement of pension to provide for the payment of superannuation gratuities (lump sum gratuities on retirement)?

28

7. If the answer to 6 is in the affirmative, what is the standard actuarial practice in relation to abatement of pensions to provide for the payment of superannuation gratuities (lump sum gratuities onretirement)?

29

8. Are there difference of capacity and of social function in the obligations and duties of a judge of the District Court on the one hand and judges of the Circuit, High and Supreme Court on the otherhand.

30

9. Are the statutory provisions providing for pensions of judges of the District Court as provided for under the Courts (Supplemental Provisions) Act, 1961(No. 39 of 1961) and in particular Section 31 and the Second Schedule, Part III, and Article 8(2) thereof invalid having regard to the provisions of the Constitution of Ireland on the alleged groundsfollowing:

31

(a) The said provisions unfairly and unconstitutionally discriminate as between judges of the Circuit Court, High Court and Supreme Court on the one hand and judges of the District Court on the other hand.

32

(b) The said provisions are contrary to Article 40.1 of the Constitution of Ireland in that there is no difference of capacity and of social function to justify such a legislativedistinction."

33

It appears from the judgment of the learned trial judge that:-

"Essentially the applicant has two complaints. First of all he says that the statutory arrangements on foot of which the lump sum gratuity payable to District Judges on retirement is calculated are irrational and arbitrary and that the Minister for Justice is constitutionally obliged to take the necessary steps to have themchanged."

34

Secondly, he says that he is wrongly and unconstitutionally discriminated against in that Circuit Court Judges are eligible for full...

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