The Gazette 1994

GAZETTE

AUGUST/SEPTEMBER 1994

committee of college amenable to judicial

review - Whether jurisdiction derived from

public law or contract - Whetherfair proce-

dures adopted by college -

Whether

obligation to give reasons for decision

Facts The applicant, who was a medi-

cal student at the Royal College of

Surgeons in Ireland, had failed her pre-

medical course in the summer of 1992,

and again at repeat exams in the

autumn of 1992. Under the rules of the

college, a student who had failed at the

repeat examination was considered dis-

continued. Such a student was obliged

to appeal to the student progress com-

mittee who, in the case of mitigating

circumstances, could grant permission

to repeat the year. If unsuccessful before

that body, provision was made for a

further appeal to an academic appeals

board. The applicant, who claimed that

her studies had been affected by her

suffering from an illness and personal

problems, appealed unsuccessfully to

the student progress committee. She

then appealed, again unsuccessfully, to

the academic appeals board. The appli-

cant sought judicial review to quash the

decision of the academic appeals board

contending that the board had miscon-

strued the scope of its own appellate

jurisdiction, that one of the members of

the appeals board had been over-dis-

missive of her personal problems and

had denied her a proper hearing, and in

addition, that the decision of the board

was invalidated by the failure of the

board to state reasons for its decision. It

was contended on behalf of the respon-

dents,

inter alia,

that the Royal College

of Surgeons was not amenable to judi-

cial review.

Held by Keane J in refusing the appli-

cation for judicial review: (1) The

appeals committee of the college de-

rived its jurisdiction solely from the

private contract of membership be-

tween the applicant and the college, and

as such was not subject to judicial re-

view.

Murphy v. Turf Club

[1989] IR 172

and

Beirne v. Commissioner of An Garda

Síochána

[1993] ILRM 1 applied. (2) The

fact that the college, like other third

level institutions derives its existence

from a charter or act of parliament, is

not a sufficient ground for bringing

matters relating to the conduct and aca-

demic standing of its students within

the ambit of judicial review. (3) In any

event, the appeals committee had heard

the appeal in a fair and reasonable man-

ner, and without breaching fair proce-

dures. (4) The appeals committee had

not misinterpreted the scope of its ap-

pellate jurisdiction. (5) There is an

obligation on bodies which exercise

functions of a judicial or quasi-judicial

nature determining legal rights and ob-

ligations to give reasons for their

decisions and this requirement may

even extend to bodies exercising purely

administrative functions. However the

decision made by the respondents was

not of such a nature as to necessitate the

giving of reasons.

Reported at [1994] 1 ILRM 233

The Attorney General at the Relation

of the Society for the Protection of

Unborn Children (Ireland) Ltd v. Open

Door Counselling Ltd and Dublin

Well Woman Centre Ltd: Supreme

Court (Finlay CJ, Hederman, Egan,

Blayney and Denham JJ) 20 July 1993

Constitution - Order of Supreme Court -

Amendments to Constitution - Application

to discharge order based on constitutional

amendments - Whether jurisdiction to dis-

charge or vary final order previously made

- Whether different considerations apply to

constitutional

amendments - Whether

court could adjudicate upon the interpreta-

tion of the amendments - Constitution of

Ireland 1937, Articles 34 and 40.3.3°

Facts The second named defendant ap-

plied by notice of motion grounded on

the affidavit of its chief executive and

director to discharge, or alternatively

amend as appropriate, an order of the

Supreme Court dated 16 March 1988

restraining that defendant from assist-

ing (in any way) pregnant women

within the jurisdiction to travel abroad

to obtain abortions. The application

arose out of the 13th and 14th Amend-

ments to the Constitution which

provided for the freedom to make avail-

able information within the jurisdiction

concerning services lawfully available

in another jurisdiction. The second

named defendant claimed that the re-

straints contained in the Supreme Court

order were not now maintainable fol-

lowing the constitutional amendments.

The plaintiff contended that the Su-

preme Court order should remain in

force until legislation was introduced to

deal with the implementation of the

14th Amendment to the Constitution.

The Attorney General's position was

that the Supreme Court order was cor-

rect when made but, because of the

constitutional amendments, was now

inconsistent with the Constitution.

Held by the Supreme Court (Finlay CJ;

Hederman, Egan, Blayney JJ concur-

ring, Denham J dissenting) in refusing

the motion. (1) Under the terms of Arti-

cle 34 of the Constitution, the Supreme

Court is a court of appeal only and does

not have any originating jurisdiction of

any kind other than that expressly pro-

vided for in Article 12.3 and Article 26

of the Constitution. (2) Notwithstand-

ing the constitutional amendments, the

Supreme Court does not have jurisdic-

tion to discharge an order which did not

give the parties liberty to apply and

which was made in accordance with the

law as it then was and which was per-

fectly correct and which carried out the

full meaning and intent of the Supreme

Court.

Belville Holdings Ltd v. Revenue

Commissioners

[1994] ILRM 29. (3) The

issues raised by the application, even if

a special jurisdiction were assumed by

the Supreme Court in the case of consti-

tutional issues which it would

otherwise not have, would involve the

court in adjudicating upon the interpre-

tation of each of the two amendments to

Article 40.3.3° of the Constitution. The

Supreme Court cannot, otherwise than

in the most exceptional circumstances

dictated by the necessity of justice, con-

sider an issue of constitutional law

which, though arising in a case not yet

determined by it, has not been fully ar-

gued and decided in the High Court. (4)

It would be wholly inconsistent with the

constitutional obligations and jurispru-

dence of the Supreme Court for it to

consider a question concerning the in-

terpretation of the Constitution by way

of motion to vary an order previously

made in an appeal finally determined

by it.

Per

Denham J (dissenting): (1) The

Supreme Court is not exclusively an ap-

pellate court. It has an original non-

appellate jurisdiction which is explicit

under Articles 12.3 and 26 of the Consti-

tution and an implicit jurisdiction in

certain rare instances to determine an

issue not decided by the High Court.

State (Browne) v. Feran

[1967] IR 147;

Murphy v. Attorney General

[1982] IR 241;

K.D. (otherwise C.) v. M.C.

[1985] IR 697;

B. v. B.

[1975] IR 54 approved. (2) The

Supreme Court has an inherent jurisdic-

tion to ensure that justice is done and in

particular to ensure that the Constitu-

tion and constitutional rights are not

circumvented.

State (Quinn) v. Ryan

[1965] IR 70;

Meskell v. C1E

[1973] IR 121;

McGee v. Attorney General

[1974] IR 285

approved. (3) This jurisdiction must be

exercised sparingly in a non-appellate

way as the fabric of the administration

of justice and the system of courts is best

served by a clear hierarchical structure

concluding in the Supreme Court. In

particular, for this exceptional jurisdic-

tion to be exercised there must be an

element of transiency in the time in

which the constitutional right can be

protected. (4) The absence of legislation

giving effect to the constitutional right

of freedom of information and travel

does not nullify or postpone the consti-

tutional right. Consequently, the

constitutional amendments have the

force of constitutional law irrespective

of legislation.

Reported at [1994] 1 ILRM 256