De Roiste v Minister for Defence

JurisdictionIreland
CourtSupreme Court
JudgeKeane C.J.,Mrs. Justice Denham,FENNELLY J.
Judgment Date19 January 2001
Neutral Citation[2001] IESC 4
Docket Number[S.C. No. 211 of 1999]
Date19 January 2001

[2001] IESC 4

The Supreme Court

Keane C.J.

Denham J.

Fennelly J.

211/99
DE ROISTE v. MINISTER FOR DEFENCE & ORS
Betweem:
Donal de Roiste
Applicant

and

The Minister for Defence, Ireland and the AttorneyGeneral
Respondents

Citations:

DEFENCE ACT 1954 S47(2)

DEFENCE REGULATIONS A.15 PARA 18(1)(f)

RAINSFORD V LIMERICK CORPORATION 1995 2 ILRM 561

O'DOMHNAILL V MERRICK 1984 IR 151

TOAL V DUIGNAN (NO 1) 1991 1 ILRM 135

CUSSEN, STATE V BRENNAN 1981 IR 181

FUREY, STATE V MIN FOR DEFENCE 1988 ILRM 89

O'FLYNN V MID-WESTERN HEALTH BOARD 1991 2 IR 233

PRIMOR PLC V STOKES KENNEDY CROWLEY UNREP SUPREME 19.12.1995

STATUTE OF LIMITATIONS 1957

STATUTE OF LIMITATIONS (AMDT) ACT 1991

RSC O.84 r21

ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORPORATION 1984 IR 381

DOYLE, STATE V CARR 1970 IR 87

TOFT, STATE V GALWAY CORPORATION 1981 ILRM 439

VOZZA, STATE VO FLOINN 1957 IR 227

G V DPP 1994 1 IR 374

RSC O.84 r21(1)

IN RE LORD LISTOWEL'S FISHERY AT BEALE 1875 IR 9 CL 46

REX V CLACE 6 BURR 2458

REX V EATON 2 TR 89

MAYO PRESENTMENTS 14 IR CLR 392

R V NEWBOROUGH LR 4 QB 585

8 MOD R 331

R V JUSTICES OF SURREY LR 5 QB 472

HUNT, STATE V CIRCUIT JUDGE, MIDLAND CIRCUIT 1934 IR 196

VOZZA, STATE V O FLOINN 1957 IR 227

DEFENCE ACT 1954 S114

GLEESON, STATE V MIN FOR DEFENCE 1976 IR 280

R V HERROD 1976 QB 540

O'DONNELL V DUN LAOGHAIRE CORPORATION 1991 ILRM 301

KELLY, STATE V DISTRICT JUSTICE FOR BANDON 1947 IR 258

MCSWIGGAN, REX V JUSTICE OF LONDONDERRY

REX V STAFFORD JUSTICES 1940 2 KB 33

SOLAN V DPP 1989 ILRM 491

Synopsis:

Administrative Law

Administrative; delay; appellant had been compulsorily retired from Armed Forces in June 1969; appellant had not been given any reasons for his retirement or given opportunity to make representations with regard thereto; appellant had not instituted any proceedings at time; in 1997, applicant's sister had been nominated as candidate in presidential election and applicant's dismissal from Armed Forces had been alluded to in media; applicant seeks certiorari of relevant decisions; respondents claim that applicant has been guilty of inordinate delay as a result of which respondents have been grossly prejudiced in their defence; whether there had been gross and inordinate delay in instituting proceedings; whether respondents had been prejudiced in their defence due to delay; whether delay had been excusable.

Held: Appeal dismissed.

De Roiste v. The Min for Defence - Supreme Court: Keane C.J., Denham J., Fennelly J.

19/01/2001 - [2001] 1 IR 190 - [2001] 2 ILRM 241

The applicant had been dismissed from the Army in 1969. No reason was given as such and the applicant had been dismissed "in the interests of the service" by the President pursuant to the Defence Act, 1954. In 1997 the applicant' sister became a Presidential candidate in 1997 and the applicant stated that reports about his dismissal from the Army appeared in the media. The applicant issued judicial review proceedings seeking to have his dismissal declared ultra vires. The applicant claimed that the trauma of the incident had left him unable to legally challenge his dismissal until recently. In the High Court Mr. Justice McCracken it has not been shown that the applicant was so effected by that experience that he was unable to issue these proceedings over such a lengthy period. The High Court so held in dismissing the proceedings and further saying that there was also the possibility of prejudice to the respondent at having to defend the case after such a delay. On appeal to the Supreme Court the appeal was dismissed. Keane CJ held that it was understandable should suffer considerable trauma however that could not justify taking no action for almost thirty years. The delay had been inordinate and had not been justified. Proceedings by certiorari should be brought with reasonable expedition. Mrs. Justice Denham held that the applicant's delay in seeking judicial review proceedings and the prejudice resulting to the respondents were a basis for refusing the relief sought. Mr. Justice Fennelly held that the applicant had been bound to apply promptly. A short delay would have required only a slight explanation. The applicant had not justified his failure to commence proceedings over such a long period of time.

1

JUDGMENT delivered the 19th day of January 2001by Keane C.J.

2

The applicant in these proceedings was at the relevant time a lieutenant in the defence forces. He served in the Signal Corps and was assigned to the Fourth Field Supply and Transport Company based at Custom Barracks in Athlone.

3

In April 1969, the applicant was interviewed by officers of the intelligence section of the army. On the 25th June 1969, the Adjutant General wrote a letter to him in the following terms:-

"I am directed by an tAire Cosanta to inform you that antUachtarán has, in pursuance of the powers vested in him by s. 47(2), Defence Act, 1954and paragraph 18(1)(f), Defence Forces Regulation A.15, retired you with effect from the 27th day of June 1969."

4

Section 47(2) of the Defence Act, 1954provides that:-

"An officer may, for any prescribed reasons, be retired by thePresident."

5

The reasons are prescribed by the Defence Forces Regulations, A.15, the one referred to in the letter from the Adjutant General being

6

"in the interests of the service."

7

The plaintiff in these proceedings has said on affidavits that he was given no other reason for his purported "retirement" and was given no opportunity to make any representations. Nor, he said, was he furnished with the names of any persons making allegations against him. He said that he had requested a court martial, if there was any charge or allegation against him, but was informed that that was not being considered at the time. He also said that theimpression was created at the time that he was associated with subversive activities.

8

The plaintiff did not, however, institute any proceedings at the time in respect of his dismissal from the army. He emigrated in 1971 and went to Britain and the United States. He returned to Ireland in themid-1980s.

9

In the year 1997, the plaintiff's sister, Ms. Adi Roche, was nominated as a candidate in the presidential election of that year. The applicant says that the events in which he had been involved in 1969 were brought up again in the media during the election campaign and that a number of newspaper reports published at the time stated that he had been forced to resign from the defence forces because he was a republican sympathiser. The applicant says that he thereupon took up the question of his retirement from the defence forces with the Army Information Office, the Minister for Defence and the President of Ireland in the hope of clearing his name and obtaining at least an honourable discharge from the defence forces, but was unsuccessful.

10

The applicant then applied to the High Court for leave to institute the present proceedings by way of judicial review and was granted such leave by the High Court (Geoghegan J.) on the 23rd November 1998. In hisstatementgrounding the application he sought declarations that the actions of the respondents at the relevant time were in breach of natural and constitutional justice and ultra vires the relevant statutory provisions and orders of certiorari quashing the relevant decisions of the respondents. A statement of opposition was delivered on behalf of the respondent and the first ground raised thereby was that the applicant had been guilty of the inordinate delay in seeking to challenge the decision of the 27th June 1969, as a result of which delay the respondents had been grossly prejudiced in their capacity to defend the applicant's claim. The issue thus raised was tried as a preliminary issue by McCracken J. and, in a reserved judgment delivered on the 28th June 1999, he upheld the contention advanced on behalf of the respondents and dismissed the applicant's claim. From that decision, the applicant has now appealed to this court.

11

Before I turn to the relevant law, I should refer to the facts in more detail. The applicant says that he was arrested by one of his superior officers, Capt. Dixon, the day after he had been supervising a sale of used army equipment at Clancy Barracks, Islandbridge. He said that he was given no reason for his arrest and was interrogated by relays of army personnel under the command of Comdt. Gerry O'Sullivan. He said that the interrogation was oppressive and that he was shouted at, threatened and physically intimidated. He said that hebelieves he may have confessed during this process of interrogation to stealing hubcaps from one of the vehicles at the auction. Following this interrogation, he was returned to the barracks in Athlone but no charge was preferred against him. He said that he then contacted a solicitor, Michael O'Maoileoin, who advised him to request a court martial which he did. He said that he was further interrogated over the course of the next three or four months but that the questioning on those occasions was not so oppressive. He was then assigned to Boyle, Co. Roscommon to the FCA, the reserve defence force, and believed at that stage that the interrogation and the matters relating to it were now at an end.

12

The applicant said that the notification to him on the 27th June 1969 that he was being retired from the defence forces left him "shocked and numbed". He said that he was given only twelve hours to leave the barracks and that he slept in his car for a number of nights before finding accommodation. His family, he said, rejected him because of the "shame and disgrace"brought upon him and them. His affidavit went on

"This rejection upset me greatly and compounded the trauma of my dismissal. I say that Mr. O'Maoileoin did not act for me nor did he institute proceedings on my behalf and I say and believe that he discontinued practising and left the country."

13

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