State (Cussen) v Brennan

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1981
• Date: 01 January 1981
• Docket Number: [S.C. No. 137 of 1979]

Supreme Court

[S.C. No. 137 of 1979]

The State (Cussen) v. Brennan

The State (at the Prosecution of Gerald H. Cussen)

and

Joseph Brennan and Others

Cases mentioned in this report:—

¹ The State (Minister for Local Government) v. Ennis Mental Hospital [1939] I.R. 258.

² The State (O'Mahony) v. South Cork Board of Public Health [1941] Ir. Jur Rep. 79.

³ The State (Murphy) v. Cork County Council [1946] I.R. 171.

⁴ The State (Modern Homes Ltd.) v. Dublin Corporation [1953] I.R. 202.

⁵ R. v. Herrod [1976] Q.B. 540.

⁶ R. v. Sheward (1880) 9 Q.B.D. 741; 5 Q.B.D. 179.

⁷ R. v. Glamorganshire Appeal Tribunal; Ex p. Fricker (1917) 33 T.L.R. 152.

State side - Certiorari - Delay - Rights of third parties - Statute - Interpretation - Power of statutory tribunal - Qualifications of candidate for appointment as paediatrician - Knowledge of Irish language - Local Government Act, 1955 (No. 9), s. 29 - Health Act, 1970 (No. 1), s. 18.

Appeal from the High Court.

On the 21st May, 1979, the prosecutor applied for and obtained in the High Court (Murnaghan J.) a conditional order of certiorari to quash a recommendation made by the respondents (as Local Appointments Commissioners) to the Southern Health Board that Dr. Peter J. Kearney be appointed to the office of paediatrician to that Board. On the same occasion the High Court made a conditional order of mandamus directing the respondents to issue a new recommendation based exclusively on a consideration of the qualifications prescribed by the Minister for Health and excluding any credit for a knowledge of Irish, or directing them to give the prosecutor an opportunity to undergo their oral Irish test. The High Court directed that notice of the conditional orders be served on the respondents and on Dr. Kearney. The respondents were Joseph Brennan, the Ceann Comhairle (Speaker) of Dáil Éireann; éireann; Dr. B.J. Hensey, Secretary of the Department of Health; and G.A. Meagher, Secretary of the Department of the Environment; they were made respondents in their capacity as the Local Appointments Commissioners.

In his affidavit (sworn on the 12th April and filed on the 21st May, 1979) in support of his application for conditional orders, the prosecutor averred that he was the consultant paediatrician attached to the Southern Health Board and a lecturer in paediatrics at University College, Cork, and that he held the degrees of M.B., B.Ch. and B.A.O. and was a fellow of the Royal College of Physicians in Ireland and a fellow of the Royal College of Physicians of Canada. He averred that he had applied for the joint posts of paediatrician to the Southern Health Board and professor of paediatrics at University College, Cork; that he had stated in his application form that he wished to undergo the Irish language test mentioned in the respondents' regulations but that he was not then aware that the allowance of credit for passing that test was ultra vires the respondents; that owing to temporary staff shortages in his employment at Cork he had been unable to afford the time to travel to Dublin on Wednesday, 13th September so as to be able to attend for the Irish test at 10.15 a.m. on the 14th September, 1978, but that he had attended for the general interview before the respondents' board of assessors at 11.30 a.m. on that day; that he had informed the respondents' office before the date of the interview that he would be unable to attend for the Irish test at the time arranged; that he had asked the respondents on the 20th and 22nd September and on the 8th and 22nd November, 1978, for a further opportunity to undergo the Irish test; that his requests had been refused by the respondents by letters dated the 19th October, 1978, and the 19th January, 1979; and that he had taken an Irish language test in 1973 when he was appointed lecturer in paediatrics at University College, Cork.

By letter dated the 19th January, 1979, the respondent commissioners recommended to the Southern Health Board that Dr. Kearney be appointed to the office of paediatrician to the Board.

The secretary to the respondents, by an affidavit sworn and filed on the 18th June, 1979, averred at paragraphs 4 and 5:—

"4. The interview board agreed to meet on the 14th September 1978 and the applicants were so notified on 1st September, 1978, each applicant being given the time to attend for interview and also the time to attend for an optional language test in the Irish language.

5. The competition for the vacant post was being held in accordance with section 9 of the Local Authorities (Officers and Employees Act), 1926, which empowers the respondents to select the person or persons to be recommended by them to the local authority by such means and in such manner as they think proper. The respondents determined on the 12th June, 1978, that the method of selection for recommendation would include a provision that extra credit would be given to qualified and suitable candidates for a good knowledge of Irish and that, subject to this and the other provisions of the regulations made by the commissioners, the best qualified candidate, if otherwise suitable, would be recommended for appointment to the vacant office. I have been advised and I believe that it is intra vires for the respondents to take into account a knowledge of Irish when determining the person who is to be recommended for appointment. This has been the practice since the setting up of the Local Appointments Commissioners in 1926. The prosecutor was notified on 1st September, 1978, that he was required to attend for interview on the 14th September, 1978, at 11.20 a.m. and for the optional Irish language test at 10.15 a.m. An acknowledgement card was issued with the notification and this was received by me on the 7th September, 1978, signed by the prosecutor and dated the 5th September, 1978, indicating that the prosecutor would attend as requested on the date and at the time mentioned."

Section 29 of the Local Government Act, 1955, provides:—

"(1) Where the Local Appointments Commissioners, with the concurrence of the appropriate Minister, are of opinion that, having regard to the nature of the duties of a particular office to which the Principal Act applies or of all such offices of a particular class, description or grade, to the knowledge and experience necessary for the efficient performance of those duties and to the qualifications (whether existing or proposed) for such office or offices, the person or persons to be recommended for appointment to such office or offices cannot be satisfactorily selected by competitive examination, the Local Appointments Commissioners may, as respects such office or offices, dispense with the competitive examination required by the Principal Act and may select the person or persons to be recommended by them in such manner as they think proper.

In this section the appropriate Minister' has the same meaning as 'the Minister' has in the Principal Act as amended and adapted by subsequent enactments.

(2) Section 9 of the Principal Act shall not apply in any case as respects which subsection (1) of this section is applicable unless the Local Appointments Commissioners have, before the commencement of this section, dispensed with competitive examination in such case pursuant to the said section 9."

The references in s. 29 of the Act of 1955 to "the Principal Act" are references to the Local Authorities (Officers and Employees) Act, 1926. Section 29 of the Act of 1955 came into operation on the 28th May, 1955, pursuant to s. 3 of the Act of 1955 and the provisions of the Local Government Act, 1955 (Date of Commencement) (No. 1) Order, 1955.

Section 15, sub-s. 1, of the Health Act, 1970, provides that the Local Authorities (Officers and Employees) Acts, 1926 and 1940, shall apply to appointments of chief executive officers and of such other officers under health boards as the Minister for Health, with the consent of the Local Appointments Commissioners, may from time to time determine—as if the boards were local authorities—but subject to any modifications which the Minister may specify by order made with the consent of the Commissioners. Sub-section 2 of s. 15 of the Act of 1970 states that, in relation to appointments to health boards, the references in s. 29 of the Act of 1955 to"the appropriate Minister" shall be construed as references to the Minister for Health.

Section 18 of the Act of 1970 states:— "The qualifications for appointment as an officer, or for continuing as an officer, under a health board shall be approved of or directed by the Minister and, in the case of an office to be filled by selection by the Local Appointments Commissioners, after consultation with the Commissioners."

Section 6, sub-s. 4, of the Act of 1926 states that, on receiving from the Commissioners their recommendation, the local authority shall appoint to the office the person recommended by the Commissioners.

The limitation period of six calendar months which is applied to orders of certiorari by order 84, r. 10, of the Rules of the Superior Courts, 1962, is thereby confined to those orders which affect judgments, orders or convictions of the District Court or of the Circuit Court.

The prosecutor applied to the High Court by motion on notice to the respondents and to Dr. Kearney for orders absolute, notwithstanding the causes shown by the respondents. The prosecutor's motion was heard and determined by the High Court (Butler J.) on the 23rd July, 1979, when the judge delivered an extempore judgment disallowing the cause shown by the respondents against the conditional order of certiorari and making that order absolute on the ground that the respondent commissioners had acted...