223 / 462
GAZETTE
JUNE 1992
of ultimate fact, undermines the
value of the obligation and fulfils
none of the functions the giving of
reasons is intended to serve as
described above. Unfortunately, as
will be seen in part 2 of this article,
existing Irish authorities appear
equally confused as to what is
required by a "statement of
reasons".
(continued in the next issue)
References
1. See e.g.
Kiely
-v-
Minister for Social
Welfare
(No. 2) [1977] I.R. 267 at 274.
2. The scope of judicial review has been
steadily expanding; see e.g.
State (Lynch)
-v-
Cooney
[1982] I.R. 337 and
State
(Keegan and Lysaght)
-v-
Stardust
Victims' Compensation Tribunal
[1986]
I.R. 642. The cases dealing with the
obligation to give reasons are cited in
extenso below. See also Hogan and
Morgan, Administrative Law in Ireland
(2nd ed., London, 1991) at pages 457 to
463.
3. Contrast the very different conclusions
reached in the High and Supreme Courts
in
O'Keefe
-v-
An Bord Pleanála
[1992]
ILRM 237, 256.
4.
Reg.
-v-
Gaming Board of Great Britain
ex parte Benaim and Khaida
[1969] 1 All
E.R. 904.
5.
Schmidt -v- Secretary for Home Affairs
[1969] 2 Ch 149; [1969] 1 All ER 904.
Similar reasoning has manifested itself in
Mclnnes
-v-
Onslow-Fane
[1978] 3 All
E.R. 211 (refusal of boxing manager's
licence) and in
Reg
-v-
Secretary of State
for Home Affairs ex. parte Harrison
[1988] 3 All E.R. 86 (refusal of ex-gratia
award to person imprisoned and
subsequently acquitted). This reasoning,
and the privilege/right distinction,
recommended itself to Costello J. in
Pok
Sun Shum
-v-
Ireland
[1986] I.L.R.M.
593 at page 599 where deportation was
ordered after the expiration of leave to
remain in the State.
6. See e.g.
Reg
-v-
Secretary of State for
Home Affairs ex parte Hosenball
[1977]
1 W.L.R. 766 cited with approval in
Reg
-v-
Secretary for Home Affairs ex. parte
Cheblak
[1991] 2 All E.R. 319 at pages
321 and 322.
7. This was one of the grounds for Costello
J.'s decision in
Shum
(at pages 600).
8. [1968] A.C. 997 per Lord Upjohn at
pages 1061 and 1062; see also the more
recent decision of the House of Lords,
Reg
-v-
Secretary of State for Trade and
Industry ex. parte Lonrho pic
[1989] 1
W.L.R. 525 which re-affirms both the
non-existence of any general common-law
duty to give reasons and the continuing
survival of the principle propounded in
Padfield;
see per Lord Keith at pages 539
and 540. See however
R
-v-
Independent
Television Commission, ex parte
Television South West Broadcasting Ltd.
(Not yet reported, Court of Appeal, 5th
February, 1992).
9. [1987] I.R. 165 at page 172.
10. [1988] I.R. 51 at page 55.
11. In the light of the decisions of the
Supreme Court in
East Donegal Co-
operative Livestock Marts Ltd.
-v-
Attorney-General
[1970] I.R. 317 and
State (Lynch)
-v-
Cooney,
loc. cit., fn. 2
above, this contention was unsustainable.
12.
International Fishing Vessels Ltd.
-v-
Minister for the Marine
[1989] I.R. 149.
13. [1990] 2 I.R. 151, 160 per Finlay C.J. at
page 163 and per Walsh J. at page 167.
For a consideration of
Fajujonu
see
Costello, "The Irish Deportation Power"
(1990) 12 D.U.L.J. 81 in which reference
is also made (at note 4) to an unreported
decision,
State (Touray) -v- Governor of
Mountjoy
(Irish Times, 14th December,
1985) in which McWilliam J. is reported
as having quashed a refusal of leave to
land for failure to give reasons. This
faillure may have consisted of a breach
of the duty imposed by Article 5,
paragraph (2) of the Aliens Order, 1946
(S.R. & O., No. 395 of 1946) (inserted by
Article 3 of the Aliens (Amendment)
Order, 1975 (S.I. No. 128 of 1975).
Article 5, paragraph (2) requires that the
particular ground in paragraph (1)
invoked to justify refusal of leave to
land be notified to the applicant in
writing.
14. loc. cit. see fn. 5 above.
15. [1988] I.R. 198.
16.
Sherlock
-v-
Governor of Mountjoy
[1991] 1 I.R. 451.
17.
State (Murphy)
-v-
Kielt
[1984] I.R. 458;
for the privelege/right distinction see fn.
5 above and supporting text.
18. See
Savage
-v-
D.P.P.
[1982] I.L.R.M. 385
and
Judge
-v-
D.P.P.
[1984] I.L.R.M. 224.
The decisions and their reasoning have
not been universally applauded; see
Hogan and Morgan, op. cit. at pages 558
to 563 and the footnotes thereto. It
appears that certain decisions of the
D.P.P. may be reviewable in certain
circumstances: see
State (McCormack)
-v-
Curran
[1987] I.L.R.M. 225.
19. [1987] I.R. 329.
20. A similar obligation is placed on local
planning authorities by the same section,
supplemented by Article 31 (g) of the
1977 Regulations.
21. loc. cit. see fn. 3.
22. Administrative Procedure Act (5 USC
s557(c)); on the Act and on the parallel
common-law duty to give reasons see
Davis,
Administrative Law TYeatise
(5
vols., 1980-1984), chap. 14 at page 99
forward.
23. Tribunals and Inquiries Act, 1958, s.12.
The 1958 Act was replaced by the
Tribunals and Inquiries Act, 1971,
the relevant section of which is again
s.12.
24. See Administrative Appeals Tribunal Act,
1975, s.43 and Administrative Decisions
(Judicial Review) Act, 1977 s.13. In each
case the right to reasons upon request
applies to decisions appealable under
the particular statute but the right is
not dependent on the bringing of an
appeal. There is considerable overlap
between the two provisions. The High
Court of Australia, in
Osmond
-v-
Public
Service Board of N.S.W.
(1986) 159
C.L.R. 656, following British precedent,
has ruled that there is no common-law
duty to give reasons, overruling the New
South Wales Court of Appeal whose
majority decision, including the
powerfully expressed leading judgment
of Kirby P. is reported at [1984] 3
N.S.W.L.R. 447 and also at [1985]L.R.C.
(Const.) 1041; see per Kirby P. at page
467 and at pages 1063 and 1064
respectively.
25. op. cit. at 460 to 462.
26. See Flick, "Administrative Adjudications
and the Duty to Give Reasons - A
Search for Criteria", [1978] Public Law
16 at pages 17 and 18; Richardson, "The
Duty to Give Reasons: Potential and
Practice" [1986] Public Law 437; both
writers believe that there are other
rationales.
27.
Ansett Transport Industries (Operations)
Pty. Ltd.
-v-
Wraith
(1983) 48
A.L.T. 500.
28. (Unreported, Supreme Court, 20th July,
1990).
29. [1991] I.L.R.M. 750 at page 757.
30. See Richardson op. cit. at fn. 24 pages
444 and 445 and the footnotes thereto.
For judicial recognition of the value
of public participation in one area
of the administrative process see
State
(Haverty)
-v-
An Bord Pleanála
[1987] I.R. 485 and the cases cited
therein.
31. as exemplified in
Byrne
-v-
Ireland
[1972]
I.R. 241.
32. For the arguments historically advanced
for not giving reasons see Flick, op. cit.
at fn. 26 at page 19 and the footnotes
thereto.
33. See e.g.
C.W. Shipping Co. Ltd. -v-
Limerick Harbour Commissioners
[1989]
I.L.R.M. 416 at page 419.
34.
supra,
fn. 22 above.
35. Both this comment and the next
("reasons differ..") are made by Davis
op.
cit.
at fn. 22 at volume 2, pps. 99 and 103
respectively.
36.
supra,
fn. 24.
37.
supra,
fn. 23
38. See
Saginaw Broadcasing Co. -v- F.C.C.
96 F. 2d. 554 (D.C. Cir. 1938) and
Phelps Dodge Corporation -v- N.L.R.&
(1941) 313 U.S. 177, both of which
were decided on common-law/
constitutional principles. The idealised
decision-making process described in
Saginaw
is summarised in Flick
op. cit.
at
fn. 26 at p.20.
39.
R. -v- Sykes
(1875) 1 Q.B.D. 52.
40. [1986] I.R. 750; [1987] I.L.R.M. 659.
41. [1986] 1 W.L.R. 477 at pps. 482 - 483.
•
199