Purcell v Attorney General

CourtSupreme Court
Judgment Date01 January 1996
Neutral Citation1995 WJSC-SC 5432
Docket Number[S.C. No. 228 of 1990]
Date01 January 1996

1995 WJSC-SC 5432


Hamilton C.J.

Blayney J.

Denham J.




JUDGMENT delivered on the 6th day of December 1995 by BLAYNEY J.


The respondent is the owner of a farm of approximately 650 acres in the County Offaly. In the year 1986 he was assessed for farm tax under the Farm Tax Act, 1985(to which I shall refer as theAct). He refused to pay the tax and the Offaly County Council then brought proceedings against him in the District Court with a view to recovering it. The respondent thereupon issued the present proceedings claiming the following declarations:


(a) A declaration that the provisions of the Farm Tax Act, 1985and the regulations made thereunder are null and void, of no effect and repugnant to the provisions of the Constitution.


(b) A declaration that the implementation of the said Act, and regulations by the third named defendant has been and is unjust, inequitable, capricious and lacking in fairness and constitutes an improper discrimination against the plaintiff.


(c) An injunction restraining the defendants from proceeding to recover monies purportedly due by the plaintiff on foot of the said Act and regulations made thereunder.


The action was heard by Barron J. on the 13th June 1989. For the previous two years the Act was no longer being enforced. The Minister for Finance had stated in his budget speech in March 1987 that the Act was to be repealed and that the tax for the year 1987 would not becollected.


As a result of the failure of the Government to implement the Act, officials in the office of the Tax Commissioner brought proceedings against the Government for compensation on the ground that the termination of their employment was in breach of the terms on which they had been appointed. In an unreported judgment delivered on the 11th April 1988 Hamilton P. (as he then was) held in favour of the plaintiffs on the ground that the action of the Government had been unlawful.


In view of the fact that the Act had been de facto repealed inMarch 1987 Barron J. did not consider whether or not it was repugnant to the Constitution. He held that the respondent was not liable to pay the farm tax for 1986 on the following grounds:-

" Until the budget speech in 1987 there was no doubt but that the provisions of the Act were in force. It may be that some or all of those provisions could have been successfully challenged as the applicant now contends as being repugnant to the provisions of the Constitution. Now that part of the Act has been de facto repealed the applicant challenges the right to enforce any part of its provisions even in respect of the period prior to such de facto repeal.

If there had been amending legislation, then either from the terms of that legislation or from the provisions of the Interpretation Act, it would have been possible to construe the intention of the Oireachtas as to the extent to which the remaining provisions of the Farm Tax Act should continue to be applied. There is however no such amending legislation. An approach to the problem mightbe to seek to ascertain the intention of the Oireachtas in the events which have happened. But it could never have been contemplated that what has occurred would occur. Legislation is in force because it is the will of the Oireachtas. If legislation is interfered with unlawfully, then what remains cannot be the will of the Oireachtas. In that event, it ceases to be enforceable not only for the future, but for the pastalso."


The Attorney General now appeals from this decision on the ground that the learned trial judge erred in law in holding that farm tax payable in respect of the year 1986 ceased to be enforceable from the 31st March 1987 when there had been no repeal of the tax in respect of thatyear.


On behalf of the respondent, Mr. Hardiman did not seek to support the grounds on which the learned trial judge had decided the case, but submitted that the State should not be permitted to enforcethe Act because of the gross inequality that it would produce. He submitted that the evidence showed that a considerable number of farms having over 150 adjusted acres had not been included by the Commissioner in the classification lists in 1986 and accordingly that their farms had not been taxed. It was argued that this resulted in a discrimination prejudicial to the respondent and accordingly that he should not have to pay the tax. I am unable to accept this submission. It seems to me that if the tax was lawfully imposed in 1986, the fact that the Commissioner, through error, omitted some eligible farms, did not prevent the tax from being valid in respect of the farms on which it was imposed. However, I have come to the conclusion that the tax was not validly imposed and that on that ground the appeal should be dismissed.


The Act provides for the charging of a tax called a farm tax(s. 9) which is to be charged on every taxable farm which is defined as meaning "an agricultural holding which is listed in a classification list or classification lists and the adjusted acreage of which is not less than twenty adjusted acres" (s. 3(1)). An official called the Farm Tax Commissioner was required to compile classification lists of all...

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