Murphy v Corporation of Dublin

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1973
• Date: 01 January 1973
• Docket Number: [1969. No. 538 P.]

Supreme Court

[1969. No. 538 P.]

Murphy v. Corporation of Dublin

JOSEPH MURPHY

Plaintiff

and

The Right Honourable THE LORD MAYOR, ALDERMEN and BURGESSESof the County Borough of Dublin, and THE MINISTER FOR LOCAL GOVERNMENT

Defendants.

Practice - Documents - Discovery - Production - Privilege - Minister of State certifying that production of particular document would be contrary to public policy and detrimental to public interest - Rules of the Superior Courts, 1962 (S.I.No. 72 of 1962), Or. 31, rr. 14, 15 - Housing Act, 1966 (No. 21),ss. 76, 109 and third schedule - Constitution of Ireland, 1937,Articles 28, 34.

Motion on Notice.

On the 25th February, 1969, the plaintiff issued a plenary summons in the High Court pursuant to s. 78 of the Housing Act, 1966, as a person aggrieved by the Poppintree-Balbutcher-Santry Area Compulsory Purchase Order, 1967, which had been made by the first defendants on the 15th December, 1967, and had been confirmed by the second defendant on the 7th January, 1969, in so far as it affected (inter alia) the plaintiff's lands which were numbered 1, 5, 8 and 9 in the schedule to the compulsory purchase order.

On the 15th December, 1969, the High Court (O'Keeffe P.) by consent of the parties ordered that they should file affidavits of discovery stating what documents were or had been in their possession relating to the matters in question in the action.

On the 20th January, 1970, the plaintiff delivered an amended statement of claim of which paragraphs 1-6 were as follows:—

"1. The plaintiff is a building contractor residing at 23 Fitzwilliam Place in the City of Dublin and the first-named defendants are the housing authority for the County Borough of the City of Dublin.

2. On or about the 5th day of January, 1968, the first-named defendant authority caused to be served upon the plaintiff a document dated the 4th day of January, 1968, therein described as the Poppintree-Balbutcher-Santry Area Compulsory Purchase Order, 1967, and purporting to have been made in exercise of the powers conferred upon the said authority by section 76 of the Housing Act, 1966.

3. All the lands described in and on the said document lie outside the functional area of the said authority and within the functional area for the purposes of the said Act of the Council of the County of Dublin, and in particular the parcels identified at map numbers 1, 5, 8 and 9 in the schedule to the said document are and at all material times were held by the plaintiff in fee simple.

4. No agreement in pursuance of section 109 of the said Act was made or entered into between the respective authorities referred to in the last preceding paragraph hereof before the making of the said pretended compulsory purchase order nor was any Act of the Oireachtas passed or act in the law done or procured to be done entitling the defendant authority to acquire by compulsory purchase order or otherwise the said lands of the plaintiff.

5. On or about the 24th January, 1968, a plenary summons No. 209 P in which the plaintiff sought and seeks against the first-named defendants an order declaring the said document null and void and of no force and effect was issued forth of this Honourable Court and was served on the said defendants on the 25th day of January, 1968.

5A. On or about the 2nd, 3rd and 4th days of April, 1968, a public inquiry in pursuance of the provisions of Article 5(2) of the third schedule to the Housing Act, 1966, was held into objections made by persons notified of and served with the said pretended compulsory purchase order, including the plaintiff whose counsel informed the presiding inspector that he would engage in the inquiry subject and without prejudice to his client's rights as asserted in the said action herein referred to.

6. On the 5th day of February, 1969, notwithstanding the proceedings referred to in the last preceding paragraph, a notice stating that the said document (described in the said notice as 'Compulsory Purchase Order, 1967, Poppintree-Balbutcher-Santry Area') had been confirmed by the second named defendant on the 7th day of January, 1969, was published in the Irish Press newspaper on the 5th day of February, 1969, and notification of the said confirmation was given to the plaintiff on the 25th day of February, 1969.

6A. The said pretended compulsory purchase order was so confirmed ultra vires having regard to the matters pleaded in paragraph 4 hereof; and wrongfully having regard to the requirements and obligations created and imposed by the said Article 5(2) of the said third schedule."

Paragraphs 7-9 of the amended statement of claim described an application by the plaintiff on the 20th December, 1967, pursuant to s. 26 of the Local Government (Planning and Development) Act, 1963, for planning permission for the development of, inter alia, the parcels mentioned at paragraph 4. The application was made to the planning authority of the Dublin County Council and that body refused outline planning permission. On the 27th February, 1968, the plaintiff appealed to the second defendant from such refusal, but no decision on that appeal had been made when the amended statement of claim was delivered.

The amended statement of claim concluded with a claim for an order declaring that the compulsory purchase order was invalid and of no legal force and effect.

The amended defence of the second defendant was delivered on the 5th February, 1970, and controverted the contents of paragraph 6A of the amended statement of claim.

On the 8th April, 1970, an affidavit of discovery of documents was filed on behalf of the second defendant pursuant to the order of the High Court made on the 15th December, 1969, but the affidavit did not disclose the existence of the report made to the second defendant by the inspector who had conducted the public inquiry mentioned at para. 5A of the amended statement of claim. On the 11th May, 1970, the High Court (O'Keeffe P.) ordered Daniel A. Turpin, on behalf of the second defendant, to make and file an affidavit stating whether he had in his possession the report made to the second defendant by the inspector who had conducted the public inquiry. On the 11th June, 1970, an affidavit was filed on behalf of the second defendant stating that the report of the said inspector was in the possession of the deponent: paragraphs 3 and 4 of that affidavit were in the following terms:—"3. The Minister for Local Government objects to producing the said report on the grounds that the production of same would be contrary to public policy and detrimental to the public interest and service. 4. I respectfully submit that it is necessary for the proper performance of the Minister's functions under the Housing Act, 1966, that there should be the utmost freedom of communication between a presiding inspector at a public inquiry and the Minister. I respectfully claim that the said report is within a class of document which on grounds of public interest ought to be withheld from production or disclosure and on the grounds aforesaid I am instructed by the Minister to claim privilege therefor." See p. 223,infra, for the Minister's own certificate.

The plaintiff applied to the High Court (Kenny J.), by motion on notice to the second defendant, for an order directing the second defendant to make a further and better affidavit of discovery of documents and disallowing the claim of the second defendant to privilege in respect of the said report, and directing the second defendant to produce the said report for inspection by the High Court.

Article 6 of the Constitution of Ireland states:—"1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good. 2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution."

Section 2 of Article 28 of the Constitution provides that:—"The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government." Section 4, sub-s. 2, of Article 28 provides that:—"The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government." Section 12 of Article 28 provides that:—"The following matters shall be regulated in accordance with law, namely, the organization of, and distribution of business amongst, Departments of State, the designation of members of the Government to be the Ministers in charge of the said Departments, the discharge of the functions of the office of a member of the Government during his temporary absence or incapacity, and the remuneration of the members of the Government."

Section 1 of Article 34 of the Constitution states that:—"Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public."

Section 76 of the Housing Act, 1966, enacts that "A housing authority acquiring land compulsorily for the purposes of this Act may be authorised to do so by means of a compulsory purchase order made by the authority and submitted to and confirmed by the Minister in accordance with the provisions contained in the Third Schedule to this Act."

Section 109 of the Act of 1966 provides:—"(1) A housing authority may perform any of their functions under this Act outside their functional area. (2) Where a housing authority intend to perform a function in the functional area of another housing authority, the authority by whom the function is intended to be performed and the other authority may make and carry out an agreement in relation to...