Rooney v Minister for Agriculture and Food (No 2)

• Jurisdiction: Ireland
• Judge: MR JUSTICE FRANCIS D MURPHY,KEANE CJ
• Judgment Date: 23 October 2000
• Neutral Citation: [2000] IESC 69
• Court: Supreme Court
• Date: 23 October 2000

[2000] IESC 69

THE SUPREME COURT

KEANE CJ

DENHAM J

MURPHY J

MURRAY J

MCGUINNESS J

APPEAL Nos 111/1990 & 224/1991

ROONEY v. MINISTER FOR AGRICULTURE & FOOD & ORS

BETWEEN:

JOHN ROONEY

PLAINTIFF/APPELLANT

AND

THE MINISTER FOR AGRICULTURE AND FOOD, THE MINISTER FORFINANCE, THE TAOISEACH, IRELAND AND THE ATTORNEY GENERAL, DONAL MCDAID,PATRICK DELANEY, THE IRISH FARMERS ASSOCIATION, ERAD THE MANAGEMENTBOARD FOR DISEASE ERADICATION, ALAN GILLIS, PATRICK DELANEY, DENISCOFFEY, TERENCE O'CONNOR, DENIS G HICKEY, JAMES NOONAN AND JOHN MALONE -AS BOARD MEMBERS OF ERAD THE MANAGEMENT BOARD FOR DISEASE ERADICATION,THE MINISTER FOR THE PUBLIC SERVICE AND THE OMBUDSMAN

DEFENDANTS/RESPONDENTS

Citations:

BULA LTD V TARA MINES LTD 2000 4 IR 412

LOCABAIL V BAYFIELD PROPERTIES LTD 2000 1 AER 65

ORANGE COMMUNICATIONS V DIRECTOR OF TELECOMMUNICATIONS REGULATION UNREP SUPREME 18.5.2000

DISEASES OF ANIMALS ACT 1966 S20

BOVINE TUBERCULOSIS (ATTESTATION OF THE STATE & GENERAL PROVISIONS) ORDER 1978 SI 256/1978

ROONEY V MIN FOR AGRICULTURE 1991 2 IR 539

O'NEILL V BEAUMONT HOSPITAL BOARD 1990 ILRM 419

DUBLIN WELL WOMAN CENTRE LTD V IRELAND 1995 1 ILRM 408

O'REILLY V CASSIDY (NO 2) 1995 1 ILRM 311

CONSTITUTION ART 34.5.1

R V SUSSEX JUSTICES EX PARTE MCCARTHY 1924 1 KB 256

POLITIES, IN RE EX PARTE HOYTS CORPORATION 1991 173 CLR 78

A1 V KING 1996 436 FCA 1

AUSSIE AIRLINES PTY LTD V AUSTRALIAN AIRLINES 1996 135 ALR 753

BELVILLE HOLDINGS LTD V REVENUE COMMISSIONERS 1994 1 ILRM 29

AG V OPEN DOOR COUNSELLING LTD (NO 2) 1994 2 IR 333

FAGAN & MALONE V MCQUAID; GREENDALE DEVELOPMENTS LTD, IN RE UNREP SUPREME 9.12.1999

Synopsis:

Administrative Law

Administrative; bias; proceedings initiated seeking compensation for the slaughter of animals; proceedings had been initiated against a number of defendants; plaintiff's claim was refused; on appeal the Supreme Court upheld the decision; plaintiff claims that a Supreme Court judge had acted on behalf of one of the defendants before being elevated to the bench; judge had given advice on the right to compensation; whether there was a reasonable apprehension of bias by a reasonable person that the existence of some particular relationship, factor, condition or circumstance would prevent a completely fair and independent hearing.

Held: Appeal dismissed; matter on which the judge advised was not material to the decision of the court; no cogent and rational link.

Rooney v. Min for Agriculture - Supreme Court: Keane C.J., Denham J., Murphy J., Murray J., McGuinness J. - 23/10/2000

- [2001] 2 ILRM 37

The plaintiff was a farmer who had initiated proceedings relating to compensation provisions under the Diseases of Animals Act, 1966. The proceedings were ultimately dismissed. In this application the plaintiff sought to have the original orders set aside. The plaintiff argued, inter alia, that there had been an appearance of bias as one of the judges in the case, Mr. Justice O'Flaherty, had acted in the past for one of the defendants. The Supreme Court, Keane CJ and Murphy J dismissed the application. It was held that it was a fundamental principle of law that judges should be independent from and impartial to other organs of the State and also from any fact, event or person extraneous to evidence properly admitted and submissions as to law made. However in the circumstances a reasonable bystander would not perceive a cogent and rational link between the judge in question and the defendant. The plaintiff's application fell far short of establishing a case of bias and the application would be set dismissed.

1 JUDGMENT DELIVERED THE 23RD DAY OF OCTOBER, 2000BYKEANE CJ

KEANE CJ

2 I have read the judgment which will be delivered by Murphy J and I agree with it. There are certain observations which I would like to add.

3 There is, as Denham J pointed out in Bula Ltd & Ors .v. Tara Mines Ltd & Ors (unreported): delivered on 3rd July, 2000, a duty on every trial judge to ensure the Court is impartial. Not only that: the Court must take care that no fact or circumstance exists - particularly a fact or circumstance of which any of the parties might be unaware - which would give rise to a reasonable apprehension of partiality. There is, however, a distinction to be drawn between those many factors such as education, religion, age and upbringing which may well be seen as influencing the decision of a judge but which are unavoidable in any system dependent upon a human element and extraneous factors specific to a particular judge. Many of these unavoidable and permissible factors were identified by Lord Bingham of Cornhill CJ in Locabail .v. Bayfield Properties Ltd [2000] 1 AER 65 and in other cases referred to in the judgments of this Court in Orange Communications .v. Director of TelecommunicationsRegulation ( unreported): 18th May, 2000. The factors with the potential for influencing judgments or appearing to have that effect and falling outside a broad, but ill defined, range of permissible factors are not inherently improper. They would frequently represent personal relationships, social activities or specific commercial investments. It has long been the practice for judges in this State and other persons exercising quasi judicial functions to disclose the existence of any factor which either party might consider was capable of affecting the reality or the appearance of an impartial administration of justice.

4 The practice of making such disclosure is an entirely proper one. On the other hand I would emphasise as did Merkel J in AI & Anor .v. Betty King & Ors (Federal Court of Australia, 31st May, 1996) that every such disclosure does not lead automatically to disqualification. As Merkel J put it:-

"It needs to be emphasised that disclosure is required, inter alia, to maintain public confidence in the integrity of the administration of justice by the tribunal or judicial officer concerned as well as to enable the parties to consider their position in the light of the disclosure. Disclosure should not be seen to be an invitation that a disqualification application ought to be made."

5 Neither party may use such a disclosure for the purpose of replacing one judge with another who may be thought to be more favourably disposed to the case which he seeks to make. Where one or other party does invite a judge to disqualify himself, the established and prudent practice has been for the judge concerned to disqualify himself if he has any reservations about the matter. On the other hand a judge cannot permit a scrupulous approach by him to be used to permit parties to engage in forum shopping under the guise of challenging the partiality of theCourt.

6 The need to ensure the appearance, as well as the reality, of impartiality must be reconciled with the proper functioning of the judicial system. The dilemma to which these conflicting demands give rise might be resolved in cases of difficulty by the judge concerned referring the issue - perhaps on the basis of a memorandum prepared by him or her - to the senior available judge of the court of which he is a member. Such a course would be acceptable in cases of particular difficulty but I do not believe that this procedure should develop into common practice. The disclosure of possible grounds for concern and the sensible reaction of the parties, advised by their lawyers, has usually been sufficient to dispose of any such difficulty and I do not doubt this will continue to be the case.

7 JUDGMENT OF MR JUSTICE FRANCIS D MURPHYDELIVERED THE 23RD DAY OF OCTOBER, 2000

8 The proceedings which give rise to the present applications have their origin in a Special Summons issued on the 19th day of November, 1987 (1987 No 1120 Sp Ct 6) in which the above named John Rooney (Mr Rooney) was Plaintiff and the Minister for Agriculture andFood, the Minister for Finance, the Taoiseach, Ireland and the Attorney General were Defendants. That summons was grounded on a full and helpful affidavit sworn by Mr Rooney on the 24th day of November, 1987, setting out the history of his complaint and the basis for the declaratory relief which he sought.

9 Mr Rooney carried on the business of farming in the County of Monaghan. Veterinary surgeons employed by the Minister for Agriculture and Food carried out tests on cattle owned by Mr Rooney and concluded that six of the cattle tested reacted positively. Subsequent tests disclosed the presence of more reactor animals. All of these animals were slaughtered in the month of April, 1984. In the subsequent year further tests took place and twenty-one animals - subsequently twenty-six - were identified as TB reactors.

10 In that context Mr Rooney investigated his entitlement to compensation under the Bovine Tuberculosis Eradication Scheme and the Diseases of Animals Act, 1966and the regulations made thereunder.

11 It was Mr Rooney's contention that he was "legally and constitutionally entitled to compensation under and in accordance with the Diseases of Animals Act, 1966and also under and in accordance with the Bovine Tuberculosis (Attestation of the State and General Provisions) Order, (SI 256) of1978".

12 Clearly the declaratory relief sought by Mr Rooney together with the damages claimed by him could not be dealt with under the Special Summons procedure. The matter was sent for plenary hearing. Numerous interlocutory orders were sought and granted and various effortswere made to draft and serve an appropriate statement of claim. Ultimately an amended statement of claim was delivered on the 6th day of November, 1989 pursuant to the order made on the 16th October, 1989, by the then President of the High Court by which earlier documents purporting to be statements of claim were struck out and Mr Rooney given three weeks within which to deliver an appropriate statement of claim. Further Defendants were added pursuant to orders of the High Court made on the 10th July,...