Miley v Employment Appeals Tribunal

JurisdictionIreland
JudgeDenham C.J.
Judgment Date10 May 2016
Neutral Citation[2016] IESC 20
CourtSupreme Court
Docket NumberAppeal No. 261/2009,[S.C. No. 261 of 2009]
Date10 May 2016

[2016] IESC 20

THE SUPREME COURT

Denham C.J.

Appeal No. 261/2009

Denham C.J.

O'Donnell J.

Clarke J.

Laffoy J.

Between/
Stephen Miley,
Devil's Glen Equestrian Centre Ltd,

and

Devil's Glen Partnership
Applicants/Respondents
v.
Employment Appeals Tribunal
Respondent/Appellant
and
Paul Bourke
Notice Party
and
Attorney General
Notice Party

Costs – Termination of employment – Unfair dismissal – Respondents seeking an order of certiorari quashing the decision of the appellant – Whether the appellant acted with?mala fides

Facts: The first notice party, Mr Bourke, in October, 2007, made a claim to the appellant, the Employment Appeals Tribunal (EAT), regarding the termination of his employment by the respondents, Mr Miley, Devil?s Glen Equestrian Centre Ltd and Devil?s Glen Partnership. On the 12th November, 2008, the EAT issued a determination holding that the first notice party had been unfairly dismissed by the respondents. A sum of ?7,095 was awarded to the first notice party by the EAT under the Unfair Dismissals Act 1977 to 2001, and ?275 was awarded in respect of his claim under the Minimum Notice and Terms of Employment Acts 1973 to 2001. On the 13th February, 2009, the respondents were granted leave to apply by way of an application for judicial review for, inter alia, an order of certiorari quashing the decision of the EAT. On the 18th May, 2009, the High Court (Hedigan J) made an order of?certiorari?quashing the determination of the EAT, remitted the matter to the EAT for a fresh determination, and awarded costs of the judicial review proceedings to the respondents against the EAT. The EAT appealed to the Supreme Court against the decision of the High Court insofar as it awarded costs against the EAT. The EAT submitted that costs should not be awarded against the EAT unless there is proof that the body acted with?mala fides?and/or improperly. The respondents submitted that the rule in?McIlwraith v His Honour Judge Fawsitt?[1990] 1 IR 343, and the public policy providing that costs in a judicial review should be awarded against judges only if they acted mala fides or improperly, should not be extended to administrative tribunals. In the alternative, it was submitted, if the said rule applied to the EAT, it was contended that the High Court judge did not err in the exercise of his discretion in arriving at the conclusion that the hearing by the EAT was conducted in a manner such that the conduct of the hearing crossed the line as provided for in the established authorities,?i.e.,?was conducted in a manner perversely or in some disregard to the elementary principles which every court ought to obey. Thus, the respondents sought an order dismissing the appeal. The second notice party, the Attorney General, supported the EAT position that quasi–judicial bodies enjoy a similar immunity to that of members of the judiciary. In the alternative, the Attorney General submitted that the High Court erred in concluding that the conduct of the EAT was of such a degree as to have brought itself outside that immunity.

Held by Denham CJ that the appeal raised two issues: (i) While the EAT is not a judge, or a panel of judges, does the rule as stated in?McIlwraith apply to the EAT? (ii) If the rule applies, was the EAT immune in this case, or did the EAT fall outside the principle of immunity by acting with impropriety or?mala fides? Denham CJ was satisfied that the EAT should not primarily be liable for costs in judicial review proceedings, when it has not participated in those proceedings; a rule similar to that stated in?McIlwraith should apply. Denham CJ held that while the EAT would in the first instance not be liable for costs, that immunity would be lost if the EAT acted with?mala fides?or with impropriety. Denham CJ was satisfied that the EAT did not act either with mala fides or with impropriety in this case.

Denham CJ held that the appeal should be allowed.

Appeal allowed.

Judgment delivered on the 10th May, 2016 by Denham C.J.
1

This is an appeal by the Employment Appeals Tribunal, the respondent/appellant, referred to as ?the EAT?, against that part of the order of the High Court (Hedigan J.) of the 18th May, 2009, which concerned costs. Stephen Miley, Devil's Glen Equestrian Centre Ltd., and Devil's Glen Partnership, are the applicants/respondents, and are referred to as ?the respondents?. Paul Bourke, the first named notice party, is referred to as ?the first named notice party?. The Attorney General is the second named notice party, and is referred to as ?the Attorney General?.

2

On the 18th May, 2009, the High Court (Hedigan J.) made an order of certiorari quashing the determination of the EAT in the matter entitled Paul Burke v. Stephen Miley, Stephen Miley and Devil's Glen Equestrian Centre Ltd., and Devil's Glen Partnership UD 926/2007, remitted the matter to the EAT for a fresh determination, and awarded costs of the judicial review proceedings to the respondents against the EAT.

3

The EAT has appealed the decision of the High Court insofar as it awarded costs against the EAT.

Background Facts
4

In October, 2007, the first named notice party made a claim to the EAT regarding the termination of his employment by the respondents. The EAT heard the claim over three days, and, on the 12th November, 2008, the EAT issued a determination holding that the first named notice party had been unfairly dismissed by the respondents. A sum of ?7,095 was awarded to the first named respondent by the EAT under the Unfair Dismissals Act, 1977 to 2001, and ?275 was awarded in respect of his claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2001.

5

On the 13th February, 2009, the respondents were granted leave to apply by way of an application for judicial review for, inter alia, an order of certiorari quashing the decision of the EAT.

6

Neither the first named notice party nor the EAT filed opposition papers.

7

On the 18th May, 2009, the matter came on for hearing before Hedigan J., who noted that no opposition papers had been filed.

8

The High Court made an order of certiorari in respect of the decision of the EAT, and remitted the matter back to the EAT to be determined in accordance with law.

9

Counsel for the respondents applied for costs against the EAT and the first named notice party.

10

The High Court heard submissions on this matter. The respondents, the EAT and the first named notice party, were legally represented and had the benefit of counsel. The High Court ordered that the respondents recover the costs of the proceedings, to include all and any reserved costs, when taxed and ascertained, against the EAT. No order was made against the first named notice party.

11

The EAT has appealed the costs order to this Court.

12

As already noted, the EAT did not file papers in opposition to the application for judicial review.

13

The Chief State Solicitor had written a letter to the respondents' solicitors on the 31st March, 2009, setting out the position in relation to the application for judicial review. It was stated:-

?We write to you in relation to the above Judicial Review on behalf of the Respondent, the Employment Appeals Tribunal.

Having considered the papers our client does not propose to take any part in the proceedings. Please note that this is the policy normally followed by the Employment Appeals Tribunal in relation to Judicial Review challenges of this sort.

The determination of the EAT under challenge was made having heard detailed oral and written legal submissions from the legal representatives of both parties before the EAT.

The legitimus contradictor to the Applicant's Judicial Review proceedings is the Notice Party.

Our client is in the entirely analogous position of a District Judge or indeed the Labour Court, a statutory quasi judicial body whose decisions can be the subject of Judicial Review challenges.

Please note that it is the considered position of our client that it is appropriate for it to take this stance. Its decision not to challenge these proceedings should not be taken as a concession in any way as to the correctness of the Applicant's position.

Please Take Notice that no application should be made for costs against the EAT by either the Applicant or the Notice Party at the conclusion of these Judicial Review proceedings irrespective of their outcome on the following grounds:

The EAT, like the Labour Court, is in the position analogous to a District or Circuit Judge whose decision is the subject of a judicial review challenge, see Supreme Court' decision in Noonan Services Limited and Others -v- The Labour Court and Another, 14th May, 2004 where McGuinness J. states at p.8:

?The Labour Court as the Respondent was in the position of a Tribunal which corresponded to the position of a District Judge in many Judicial Review proceedings. The Labour Court was not a legitimate contradictor. The notice party was represented in the Labour Court and represented a large number of workers who would be affected by the orders or by the ruling that the orders were void and therefore I consider that SIPTU was an appropriate party. As such I think they should have been granted their costs.?

It is clear from the aforementioned Supreme Court decision and the jurisprudence of the courts that in circumstances where our client decides not to contest or oppose the proceedings that the appropriate legitimus contradictor is the Notice Party and that any issue of costs arising at the conclusion of the case are matters between the Applicant and the Notice Party and not the EAT.

Please Take Further Notice that in the event that either the Applicant or the Notice Party disagrees with our view of the legal position in relation to costs and if, when the High Court has made its decision in relation to these Judicial Review proceedings, either the...

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