Minister for Education v Letterkenny Regional Technical College

• Jurisdiction: Ireland
• Judgment Date: 01 January 1997
• Docket Number: [1993 No. 346 J.R.] [1994 Nos. 192/193 S.C.]
• Date: 01 January 1997
• Court: Supreme Court

The Minister for Education v. Letterkenny R.T.C.

The Minister for Education

Applicant

and

The Regional Technical College Letterkenny, Respondent, and Colin Morrow, Notice Party

[1993 No. 346 J.R.] [1994 Nos. 192/193 S.C.]

High Court

Supreme Court

Judicial review - Regional technical colleges empowered to appoint officers and servants - Appointments subject to approval of Minister for Education - Whether Minister empowered to specify the minimum qualifications required for an appointment - Regional Technical Colleges Act, 1992 (No. 16) s. 6, sub-s. 1, s. 11, sub-s. 1.

Judicial review - Time for applying for judicial review - Whether application made promptly - Exercise of discretion by the court - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 84, rr. 21 (1) and 22 (4).

Statute - Interpretation - Meaning of 'subject to the approval of the Minister' - Regional Technical Colleges Act, 1992 (No. 16) s. 11, sub-s. 1.

Evidence - Admissible evidence on affidavit - Hearsay evidence on affidavit - Failure of the notice party to swear his own affidavit.

Section 6, sub-s. 1 of the Regional Technical Colleges Act, 1992, which came into operation on the 1st January, 1993, provides inter alia:—

"There shall be a governing body of a college and the governing body, save as otherwise provided by this Act, shall perform the functions conferred on the college by this Act."

Section 11, sub-s. 1 of the Act of 1992, provides inter alia:—

"(a) A college may appoint such and so many persons to be its officers (in addition to the Director) and servants as, subject to the approval of the Minister given with the concurrence of the Minister for Finance, the governing body from time to time thinks proper.

(b) The selection of such officers and servants shall be a function of the college in accordance with the procedures which may be determined by the Minister from time to time."

Order 84, r. 21 (1) provides:—

"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the court considers that there is good reason for extending the period within which the application shall be made."

Order 84, r. 22 (4) provides inter alia for a respondent intending to oppose an application for judicial review to file a statement of opposition, and an affidavit verifying any facts relied on therein.

The applicant sought judicial review to quash an appointment by the respondent of the notice party as secretary/financial controller of Letterkenny Regional Technical College, on the ground that the notice party did not possess the necessary qualifications as prescribed in documentation furnished by the applicant.

Held by Costello J., in granting the relief sought, 1, that the respondent college had no power to appoint the notice party to the post of secretary/financial controller because he did not possess the qualifications for the post which had been approved by the applicant.

2. That, the object of s. 11, sub-s. 1 (a) was to confer a statutory power on each college to appoint officers and servants as the governing body from time to time thinks proper. This power could only be exercised with the approval of the applicant which means that the applicant may decide to only approve the appointment of persons who possess certain qualifications. Therefore, the appointment by a college of a person who did not possess approved qualifications was the appointment of a person of whom the applicant did not approve and was therefore ultra vires the exercise of the college's power.

3. That, it was not necessary for the applicant personally to approve the qualifications for the post of secretary/financial controller, but the approval could be validly exercised on the applicant's behalf by the appropriate officer in the Department.

4. That the applicant did not abandon the statutory power to approve the qualifications for appointees to the post of secretary/financial controller by the document headed "Selection Procedures" which was sent to the director of the respondent in March, 1993, which did not contain qualifications required for the appointee of that post, as at that time the council of directors including the director of the respondent college had been requested to draw up a draft job description and qualifications for the post of secretary/financial controller.

5. That under s. 11, sub-s. 1 (b) the director of the respondent had a statutory duty to ensure that only candidates who met the requirements for a post should be considered by the selection board. Therefore, the director was in breach of his statutory duty in sending forward the notice party's name to the selection board, and the appointment subsequently made was made in breach of the procedures laid down by the applicant in March, 1993, and was therefore void.

6. That the delay from the 3rd September, 1993 to the 22nd November, 1993, in applying for leave to apply for judicial review arose from a reasonable attempt on the part of the Department to avoid proceedings and there was no delay such as would justify the exercise of the court's discretion against the applicant.

7. That the notice party in failing to swear his own affidavit had failed to comply with the order granting leave to apply for judicial review which provided that should he wish to oppose the application he should file a statement under O. 84, r. 22 (4), and an affidavit verifying any facts relied on in such statement. As a result therefore, the evidence which was contained in the affidavit sworn by his solicitor on his behalf could not be accepted, as it contained hearsay evidence on which the notice party could not be cross-examined and thus deprived the court of relevant information.

8. That reliance could not be placed on an affidavit containing hearsay evidence to support a submission that the court should exercise its discretion in favour of the notice party because of alleged prejudice. Prejudice is a question of fact to be established by admissible evidence and there was no evidence of prejudice caused to the notice party on which he could be cross-examined.

The respondent and the notice party appealed to the Supreme Court.

Held by the Supreme Court (Hamilton C.J., O'Flaherty, Egan, Blayney and Denham JJ.) in allowing the appeal and holding that it was within the powers of the governing body of the respondent to appoint the notice party to the post of secretary/financial controller, 1, that s. 11, sub-s. 1 (a) of the Act of 1992 gave a regional technical college the power of appointment of such and so many persons to be its officers and servants as it may from time to time think proper subject to the approval of the applicant given with the concurrence of the Minister for Finance.

2. That while such power of appointment was subject to the approval of the applicant given with the concurrence of the Minister for Finance, the selection of such officers, was stated by s. 11, sub-s. 1 (b) of the Act to be the function of the college, acting in accordance with the procedures determined by the applicant from time to time.

3. That once the post of secretary/financial controller has been created with the approval of the applicant, given with the concurrence of the Minister for Finance, the selection of the person to fill that post was a function of the college and the college's function in that regard was by virtue of the terms of s. 6, sub-s. 1 exercisable by the governing body of the college, who were obliged to act in accordance with the procedures determined by the applicant.

4. That the applicant had no function in determining the qualifications required for the post of secretary/financial controller.

5. That such determination was solely a matter for determination by the director in consultation with the relevant head of function as appears from the selection procedures determined by the applicant.

6. That notwithstanding the fact that required qualifications were not held by the notice party the director was entitled to submit his name to be considered by the selection board. This was because the director under the power given to him in the selection procedures was entitled to alter the requirements and did so.

7. That in view of the fact that the requirements for the post, as originally fixed by the director and communicated to the applicants for the post were not adhered to and were altered it may well be that an unsuccessful applicant could challenge the appointment but it is not open to the applicant to challenge the validity of the appointment.

Obiter dictum: That if it were open to the Minister to challenge the validity of the appointment, the order sought by the Minister is a discretionary one.

That before making such an order the court must be satisfied in all the circumstances of the case that it would be just and proper to do so.

Dictum of Henchy J. in The State (Cussen) v. Brennan[1981] I.R. 181 approved.

Cases mentioned in the report:—

The State (Cussen) v. Brennan [1981] I.R. 181.

The State (Abenglen Properties Ltd.) v. Dublin Corporation [1984] I.R. 381; [1982] I.L.R.M. 590.

Judicial review.

The facts have been summarised in the headnote and are fully set out in the judgment of Costello J. (as he then was), infra.

The applicant was granted leave to apply for judicial review by the High Court (O'Hanlon J.) on the 22nd November, 1993. The applicant sought inter alia an order of certiorari quashing the appointment of the notice party as secretary/financial controller of Letterkenny Regional Technical College by the respondent; in the alternative a declaration that the purported appointment of the notice party was null and void and of no legal effect or consequence.

The motion dated the 30th November, 1993, was heard by the High Court (Costello J.) (as he then was) on the 14th, 15th and...