Podger v Minister for Agriculture

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 15 May 2002
• Neutral Citation: [2002] IEHC 98
• Date: 15 May 2002
• Docket Number: [2001 No. 350 J.R.]
• Court: High Court

PODGER v. MINISTER FOR AGRICULTURE

JUDICIAL REVIEW

Between:

PERCY PODGER

Applicant

and

THE MINISTER FOR AGRICULTURE, FOOD AND RURAL DEVELOPMENT

Respondent

[2002] IEHC 98

[No.350 J.R./2001]

THE HIGH COURT

Synopsis:

JUDICIAL REVIEW

Certiorari

Foot and mouth outbreak - Statutory interpretation - Agricultural law -Whether direction by respondent ultra vires - Whether primary legislation effective without ministerial order - Diseases of Animals Act, 1966 - Diseases of Animals (Amendment) Act, 2001 - Interpretation Act, 1937 (2001/350JR - O Caoimh J - 15/5/02)

Podger v Minister for Agriculture, Food and Rural Development - [2002] 4 IR 16

Facts: The applicant brought judicial review proceedings in respect of a direction issued by the respondent ordering him to remove his sheep from the Curragh, Co. Kildare during the foot and mouth crisis. The applicant contended that the direction issued was ultra vires in that the relevant statutory instrument had not been enacted and thus the respondent acted in excess of jurisdiction.

Held by Ó Caoimh J in refusing the relief sought. Having regard to the Diseases of Animals (Amendment) Act, 2001 it was clear that it was one which on its face was intended to come into force with immediate operation. The application of the applicant must fail.

Citations:

DISEASES OF ANIMALS ACT 1966 S17(A)

DISEASES OF ANIMALS (AMDT) ACT 2001 S2(1)

DISEASES OF ANIMALS ACT 1966 (COMMENCEMENT OF SECTIONS 17(A) & 29(A)) ORDER 2001 SI 98/2001

DISEASES OF ANIMALS ACT 1966 S1(2)

DISEASES OF ANIMALS (AMDT) ACT 2001 S2

DISEASES OF ANIMALS (AMDT) ACT 2001 S11

DISEASES OF ANIMALS ACT 1966 S1

BENNION STATUTORY INTERPRETATION: A CODE 2ED 1992

DISEASES OF ANIMALS (AMDT) ACT 2001 S2(2)

INTERPRETATION ACT 1937 S10

INTERPRETATION ACT 1937 S10(1)(B)

INTERPRETATION ACT 1937 S3

STROUD STROUD'S JUDICIAL DICTIONARY OF WORDS & PHRASES 6ED 2000

BUTTERWORTHS WORDS & PHRASES LEGALLY DEFINED 3ED 1988

1 Mr. Justice Aindrias Ó Caoimh delivered the 15th day of May, 2002.

2 The applicant is a sheep farmer who resides at French Furze, The Curragh, County Kildare. He farms 75 acres at French Furze and has the benefit of grazing rights as a statutory commoner of the Curragh. At the time of the commencement of these proceedings the applicant had approximately 550 adult sheep and was at all times dependent upon the rights of commonage at the Curragh.

3 In these proceedings the applicant seeks an order of certiorariquashing the decision of the respondent as notified to him by a direction signed by Thomas Myers, as servant or agent of the respondent and dated the 26th March. 2001, which direction required the applicant to remove his sheep from the Curragh to French Furze on or before 9 a.m. on the 27th March, 2001. In addition the applicant seeks a declaration that the decision of the respondent is ultra vires the powers of the respondent and void having regard to the provisions section 17A of the Diseases of Animals Act, 1966(as inserted by section 2 (1) of the Diseases of Animals (Amendment) Act, 2001and/or the Diseases of Animals Act, 1966(Commencement of Sections 17A and 29A) Order 2001 (S.I. 98 of 2001).

4 A declaration that section 17A of the Diseases of Animals Act, 1966as inserted by the Diseases of Animals (Amendment) Act, 2001was not in operation on the 26th March, 2001 and the direction of the 26th March is therefore void and/or ultra vires the powers of the respondent.

5 The essential grounds relied upon by the applicant are:

6 (a) that the direction dated the 26th March, 2001 was made pursuant to section 17A of the Diseases of Animals Act, 1966as inserted by the Diseases of Animals (Amendment) Act, 2001, which section only became operative on the 27th March 2001 by virtue of S.I. 98 of 2001. The aforesaid direction in those circumstances was made without the necessary statutory authority and was consequently ultra vires the powers of the respondent;

7 (b) the said direction is void and ultra vires the powers of the respondent as the day appointed pursuant to section 1 (2) of the Diseases of Animals Act, 1966as the day on which section 17A of the Diseases of Animals Act, 1966(as inserted by the Diseases of Animals (Amendment) Act, 2001) is specified as the 27th day of March 2001, by the Diseases of Animals Act, 1966(Commencement of Sections 17A and 29A) Order, 2001 (S.I. 98 of 2001) and in those circumstances the respondent was acting in excess of jurisdiction in issuing a direction prior to the commencement of the section relied upon.

8 (c) In consequence, the respondent's purported direction was not authorised by section 17A of the Diseases of Animals Act, 1966and the said direction had no statutory authority.

9 The essential issue in these proceedings is what is the date of the commencement of section 17A of the Diseases of Animals Act, 1966(the 1966 Act) as inserted by the Diseases of Animals (Amendment) Act, 2001(the Act of 2001).

10 Section 2 of the Act of 2001 inserted after section 17 of the Act of 1966 the new section 17A. Section 11 of the Act of 2001 reads as follows:

11 2 11.- (1) This Act may be cited as the Diseases of Animals (Amendment) Act, 2001.

12 (2) The Diseases of Animals Acts 1966to 2000, and this Act may be cited together as the Diseases of Animals Acts, 1966to 2001, and shall be construed together as one. Section 1 of the Act of 1966 reads as follows:

13 2 1.-(1) This Act may be cited as the Diseases of Animals Act, 1966.

14 (2) This Act or any specified provision of this Act shall come into operation on such day or days as the Minister may by order appoint.

15 The essential issue is whether s. 17A was required to be brought into operation by means of a Ministerial order or whether upon its enactment it came into operation insofar as the Act of 2001 did not provide that any of its sections were required to be brought into operation by means of Ministerial order.

16 It is agreed between the parties that at the time of the enactment of the Act of 2001 that all the sections of the Act of 1966 were in operation.

17 The direction in the instant case was given on the 26th March, 2001 by Mr. Myers, an authorised officer of the Minister in respect of the following day insofar as it required the applicant to move his sheep from the Curragh by 9 a.m. on the following day.

18 On the 27th March, 2001 a ministerial order was made by the respondent being Statutory Instrument No 98 of 2001 being the Diseases of Animals Act, 1966(Commencement of Sections 17A and 29A) Order, 2001.

19 This order reads as follows:

"I, Joe Walsh, Minister for Agriculture, Food and Rural Development, in exercise of the powers conferred on me by section 1 (2) of the Diseases of Animals Act, 1966(as adapted by the Agriculture and Food (Alteration of Name of Department and Title of Minister) Order, 1999 ( S.I. No. 307 of 1999) hereby order as follows:"

1. This Order may be cited as the Diseases of Animals Act, 1966(Commencement of Sections 17A and 29A) Order, 2001.

2. The 27th day of March, 2001, is appointed as the day on which sections 17A and 29A (as inserted by the Diseases of Animals (Amendment) Act, 2001(No. 3 of 2001) of the Diseases of Animals Act, 1966(No. 6 of 1966), shall come into operation."

20 The issue before me is whether section 17A was operational as a matter of law upon the coming into force of the Act of 2001 or whether it was dependent upon the making of an order such as that made by the respondent on the 27th of March, 2001.

21 On behalf of the applicant it is submitted that s. 17A must be taken to be governed in the same way as other provisions of the Act of 1966 and accordingly require a Ministerial order to bring same into operation.

22 It is submitted that the order made by Mr. Myers was a nullity when it was made on the 26th of March, 2001 if the Act in question (and in particular s. 17A itself) was not in force at that time.

23 On behalf of the respondent, it is submitted by Mr. McDonagh, that the issues arising in this case are not addressed in Bennion, Statutory Interpretation, 2 ^nd ed. and no authority has been indicated by counsel to exist in relation to these issues.

24 It is submitted by counsel that in the...