Nolan v Irish Land Commission

Judgment Date01 January 1981
Neutral Citation1980 WJSC-SC 1522
CourtSupreme Court
Docket Number[1978 No. 7158 P]
Date01 January 1981

1980 WJSC-SC 1522




parke J.


JUDGMENT delivered the 9th day of May 1980by O'HIGGINS C.J. [PARKE J. Concurring]


In these proceedings the Plaintiff sues the Defendants for


2 (l) A declaration that he is entitled to inspect the documentation and data considered by the Lay Commissioners prior to the certification by the lay Commissioners on the 21st July 1978 that the Plaintiff's lands were required by the land Commission for the purposes ofresale.


(2) An Injunction restraining or prohibiting the Lay Commissioners from determining the Plaintiff's objections to the proposed acquisition of his land until the said documentation and data had been made available for inspection.


In the High Court Mr. Justice Costello granted interlocutory relief in the terms of the Injunction sought arranged for an early trial of the action without pleadingsand having considered detailed arguments from both parties decided that the Plaintiff way entitled to the relief claimed. From this decision this appeal has been brought


The Plaintiff's action was commenced in the following circumstances. The Plaintiff is the owner of certain lands at Kilcarry, Co. Carlow. On the 31st July 1978 two Lay Commissioners issued a Certificate pursuant to the provisions of Section 25 of the Land Act 1936to the effect that these lands were required by the Land Commission for the purpose of resale to the persons and bodies mentioned in Section 31 of the land Act 1923, as extended by Section 30 of the Land Act 1950. The Plaintiff lodged an objection to this proposed acquisition and applied for an inspection of the documents and data considered by the Lay Commissioners prior to the issuing of the Certificate. The rules relating to the hearing of objections before the Lay Commissioners are the Land Purchase Act Rules 1936S.I. No. 36 of 1936. These rules provide that evidence at the hearing is to be given orally (save by leave of the Lay Commissioners) but contain no provision for thediscovery or prehearing or inspection of documents. For this reason the application made on behalf of the Plaintif was refused by the Lay Commissioners. The Plaintiff then commenced this action against the Land Commission in the High Court.


The basis of the Plaintiff's claim in the High Court and on this appeal, is that a denial of discovery is a denial of natural justice. He contends that his objection to acquisition cannot properly or adequately be presented without knowing - through discovery -the kind of case he has to meet. Consequently he submits that in the absence of discovery the principle audi alteram partem is breached and justice is denied. On behalf of the Land Commission it was urged that the rules of natural justice did not extend to evidential or procedural matters or rules but, with the single exception of the principle which provides that a party is entitled to be informed of a charge against him, relate to the actual hearing before the tribunal or court only. In the course of his Judgment in the High Court, Mr. Justice Costelloconsidered and rejected this contention. while noting the views expressed by Black J. in Green v. Blake & Ors. 1948 I.R. at269 Mr. Justice Costello said:

"The Plaintiff's case is that (to use the phraseology employed by Mr. Justice Black) discovery and inspection are "essential in the interests of of justice" in this case. If he is right, it affords no answer to his submission to say that this cannot be so because there are procedural rules of court which cannot be part of the principles of natural justice. It seems to me that if it can be established that the absence of a specified procedure would mean that a tribunal would not give a fair hearing to a waiter before it, then that specified procedure can property be regarded as part of the principles of natural justice which the tribunal should apply."


The rules of natural justice which the Plaintiff calls in aid are admittedly imprecise. Domestic and administrative tribunals take many forms and determine many different kinds of issues and no hard and fast rule can be laid down as to what the requirements of natural justice will be in every matter before the many different types of tribunal. One of the important and fundamental rules which must be observed is that contained in the maxim audi alteram partem. This is a principle which can be applied in many different typos of situations."


I wish to express my agreement with these views. Natural justice requires not merely that the actual hearing be conducted objectively and fairly but also that the rules and procedures adopted be such as to permit this to be so. If one party comes to the hearing with the scales of justice tilted against him because of a procedural defect then the requirements of justice are not fulfilled. In my view, the question for determination on this appeal is not whether Mr. Justice Costello was correct in the view he formed of the law, because clearly he was, but whether the facts and circumstances of this case warrant the application of that law. In other words, can it be said that discovery and inspection of the documents sought by the Plaintiff is "essential in the interests of justice" because, if not granted, the Plaintiff will be deprived of an adequate opportunity to answer the case for acquisition brought against him by the Land Commission. The determination of this question requires an investigation of the legal effect to be attached to the Commissioners" Certificate which is the initiatingdocument in such acquisition proceedings. If is Certificate is unassailable in the sense that it is conclusive as to the fact certified then no amount of discovery or inspection can avail the Plaintiff anything and not only would the granting of such be unnecessary but it would also be irrelevant. If on the other hand the accuracy or justification for the Certificate can be put in issue at the hearing of the objection and such Certificate is based on documents which were considered by the Commissioners then discovery and inspection of such documents might not only be helpful to the person challenging the Certificate but might in fact be essential to the presentation of his case. The Certificate with which this action is concerned was issued pursuant to the provisions of Section 25 of the Land Act 1936. It certifies that the lands are required for the purpose of resale and is what is termed a General Certificate. Prior to the coining into operation of this Section, two different procedures were in operation, depending on whether the lands were required for the relief of congesticor for the purpose of resale. If that lands were required for the relief of congestion the Lay Commissioners published a notice of their intention to declare that such was the case and provided an opportunity for the making of objections (Section 29 Land Act 1933, land Commission Rules 1933). No Certificate was issued - merely the notice of intention to declare. After the publication of the notice and the hearing of objections the lay Commissioners were empowered to declare the lands to be so required, and the lands then vested in the Land Commission. If the lands were required for the purpose of resale the lay Commissioners could under Section 32 of the Land Act 1933issue a Certificate to this effect. By sub-section (4) of the same Section this Certificate was declared to be final. However, notwithstanding the Certificate the Land Commission could not exercise its powers of compulsory acquisition (other than for the relief of congestion) if the particular facts set out in either sub-section (2) or sub-section (3) of the Section were established.Accordingly, where under the Land Act 1933lands werecertified to be required for the purpose of resale, and objection was taken, the issue to be determined was not whether the lands were so required (because the Certificate was final) but, whether the special facts mentioned in sub-section (2) or sub-section (3) could be established and if so whether the lands were required for the relief ofcongestion.


When the Land Act 1936came into operation both these procedures were superseded by the procedure laid down in Section 25 of that Act. Under the procedure introduced by this Section whenever the land Commission proposes to acquire, whether for the relief of congestion or for resale, any lands, it publishes in Iris Oifigiúil a Certificate by the Land Commission and a provisional list. The Certificate specifies the purpose of the acquisition, whether for the relief of congestion or for resale, as the case may be. The Section contains no provision making this Certificate final. If the Certificate specifies the purpose of the...

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