State (Dowling), The v Leonard

• Jurisdiction: Ireland
• Judgment Date: 01 January 1961
• Date: 01 January 1961
• Court: High Court

High Court.

The State (Raftis) v. Leonard. The State (Dowling) v. Leonard.

In the Matter of the Courts of Justice Acts 1924-1953. THE STATE (at the Prosecution of LIAM RAFTIS)

and

JOHN LEONARD

THE STATE (at the Prosecution of MICHAEL DOWLING)

and

JOHN LEONARD (1)

Local government - Local authority - Accounts - Audit Local government auditor - Lowest tender not accepted by local authority - Explanation for such non-acceptance given - Such explanation not accepted by auditor - Payments to employee - Payments recoverable by action - Whether auditor entitled to deem such payments to be "contrary to law or unfounded" - Question whether employee an "officer" - Question determined by auditor without reference to Minister for Local Government - Jurisdiction of auditor to make such determination - Local Government Act, 1955 (No. 9of 1955), s. 11, sub-s. 1 - Acting City Manager - Payment authorised by him on foot of contract made with City Manager - Acting City Manager unaware of intended surcharge against him - Local Government (Ireland) Act, 1871 (34 & 35 Vict., c. 109), s. 12 - Local Government (Ireland) Act, 1902 (2 Edw. 7, c. 38), s. 20.

Certiorari.

Applications by Liam Raftis, the City Manager of Waterford, and by Michael Dowling, Finance Officer to Waterford Corporation, to make absolute two conditional orders of certiorari to quash a charge and certain surcharges made by John Leonard, the local government auditor assigned by the Minister for Local Government pursuant to s. 68, sub-s. 1 (a), of the Local Government Act, 1941, to audit the accounts of Waterford Corporation for the yearly period ending the 31st March, 1957.

The charge and surcharges sought to be quashed were as follows:—

1, The sum of £85 3s. 9d. charged by the respondent against the prosecutor, Raftis, alleged to represent the amount of the loss caused to the municipal fund by the alleged negligence of the prosecutor in the hiring of motor lorries at a rate alleged by the respondent to be greater than the lowest rate tendered in respect of the year ended the 31st March, 1957, and alleged by the respondent thereby to have caused excessive payments to be made;

2, The sum of £42 0s. 0d. surcharged by the respondent against the prosecutor, Raftis, alleged by the respondent to be illegal payments made to one, John Cozens, attributable to the allegedly unnecessary employment of the said John Cozens on clerical duties on the Lower Grange Housing Scheme which was in process of being erected by the Corporation and alleged by the respondent to have been authorised by the prosecutor;

3, The sum of £29 17s. 3d. surcharged by the respondent against the prosecutor, Raftis, alleged by the respondent to be illegal payments made to the said John Cozens as temporary clerical officer at the Corporation's motor taxation office and alleged by the respondent to have been authorised by the prosecutor; and

4, The sum of £6 surcharged by the respondent against the prosecutor, Dowling, alleged by the respondent to be an illegal payment made to the said John Cozens, attributable to the allegedly unnecessary employment of the said John Cozens on clerical duties on the Housing Scheme and alleged by the respondent to have been authorised by the prosecutor as deputy City Manager.

The prosecutor, Raftis, obtained a conditional order ofcertiorari to send before the Court for the purpose of being quashed the records of the charge and surcharges made against him on the grounds 1, that the said decisions, charge and surcharges were made or given in disregard of the essentials of natural justice;

2, That the said decisions, charge and surcharges were made without and in excess of jurisdiction;

3, That the said decisions, charge and surcharges were wholly erroneous in fact and in law;

4, That the reasons for the said decisions, charge and surcharge were erroneous in fact and in law;

5, That the prosecutor was a person aggrieved by the said decisions, charge and surcharges.

The prosecutor, Dowling, obtained a similar conditional order of certiorari on identical grounds in relation to the surcharge made against him.

The further facts appear sufficiently in the judgments,post.

The respondent, an auditor of the Department of Local Government, in auditing the accounts of the County Borough of Waterford for the year, 1956/57, charged against R., the City Manager of Waterford, a sum of £85 3s. 9d., found by him to be the amount of the loss incurred by the Corporation of Waterford by reason of the alleged negligence of R. in hiring haulage lorries for the Corporation at a rate higher than that offered by the hauliers making the lowest tender. R. explained his failure to hire the lorries tendered by such hauliers as being due to the alleged unsuitability of such hauliers' lorries and to the unsatisfactory service which he alleged that such hauliers had previously given to the Corporation, but R.'sexplanation was not accepted by the respondent as adequate or well-founded.

The respondent further surcharged against R. two sums, £42 and £29 17s. 3d., being weekly payments made to C. for clerical work at a Corporation housing scheme and in the Corporation's motor taxation office, respectively, and surcharged against D. a sum of £6, being wages paid toC. in respect of one week's work on the housing scheme done before D. had been appointed acting City Manager, which payment was authorised byD. during a period of two days while he was acting as City Manager, as illegal payments within the meaning of s. 12 of the Local Government (Ireland) Act, 1871. It was contended by the respondent that C. had been employed as a clerical officer, which employment would have been illegal in as much as he had neither been selected for appointment following public advertisement and competitive examination or other specified procedure for selection as prescribed by regulation 26 of the Local Government (Officers) Regulations, 1943 (S.R. & O. No. 161 of 1943), nor specifically appointed as a temporary officer for a period not exceeding six months as permitted by reg. 30 of those Regulations; it was contended by R., on the other hand, that C. had been employed as a labourer. It was further contended by the respondent, in any event, in view of the fact that C. was one of a number of additional persons temporarily employed on clerical work in connection with the housing scheme during a period when the number of manual workers employed on the scheme was consistently declining, that the employment of C. on the housing scheme was unnecessary. It appeared that D. had been in no way responsible for the original employment of C. and had not been aware of the intended surcharge against him or the reasons therefor until after it had been made.

Held by the High Court (McLoughlin and Murnaghan JJ.; Davitt P. dissenting) that the charge relating to the hire of the lorries should be quashed in as much as the grounds given by the respondent for refusing to accept the explanation given by R. for not employing the lowest tendering hauliers were not sufficient to justify him in finding that such deficiency

or loss as might have been incurred by the Corporation had been incurred by R.'s negligence or misconduct within the meaning of s. 20 of the Local Government (Ireland) Act, 1902.

Per Davitt P.: The respondent had been justified in refusing to acceptR.'s explanation by R.'s failure to comply with the respondent's request for a more detailed account of the reasons leading him not to employ the lowest tendering hauliers.

Held further by the High Court (Davitt P., McLoughlin and Murnaghan JJ.) 1, that the surcharge relating to the employment of C. in the motor taxation office should be quashed in as much as the evidence showed that a doubt or question had arisen whether C.'s employment by the Corporation was that of an officer of the Corporation, which, by virtue of the provisions of s. 11, sub-s. 1, of the Local Government Act, 1955, was a matter for the final decision of the Minister for Local Government, which the respondent, therefore, had no jurisdiction to decide, but that the surcharge againstR. relating to the employment of C. on the housing scheme must be upheld in as much as there was ample evidence on which the respondent could properly come to the conclusion that such employment, whether that of an officer or not, was unnecessary and the payment of remuneration in respect thereof was consequently unfounded.

2, That a payment made by a local authority may be illegal, in the sense of being unfounded, notwithstanding that, if it had not been made, a legally enforceable claim could have been made for such payment.

The Queen v. Calvert [1898] 2 I. R. 511 distinguished.

3, That the surcharge against D. must be quashed, as having been made without D. having been given an opportunity to be heard before being surcharged.

The Court, in considering an application for certiorari under the provisions of s. 12 of the Local Government (Ireland) Act, 1871, to quash a charge or surcharge made by a local government auditor, is restricted to the materials which were before the auditor at the time of the audit, but is free, on those materials, to come to a conclusion of fact, as well as of law, different from that come to by the auditor.

R. (Ronan and Others) v. Ellis 3 N. I. J. R. 270 not followed.

Cur. adv. vult.

Davitt P. :—

This matter was first argued in Trinity term, 1959, when judgment was reserved. It was again argued last term when judgment was again reserved. The judgment which I am about to read was written in June last. As a result of the reargument I have modified one of the views expressed. In the circumstances, however, I have not thought it necessary to recast the judgment, which I propose to read as it was written and then to qualify it by a short addendum in order to bring it fully into line with my present opinion.

This is an application to make absolute, notwithstanding...