The Gazette 1975

it. In November 1972 he was served with notice of

revocation of the licence, on the alleged ground that

he was not a fit and proper person, which was equiv-

alent to preventing him from earning his living. The

plaintiff appealed in vain to the District Court. At no

time was the plaintiff given notice of revocation, or an

opportunity to make representations. The plaintiff now

seeks a declaration that this revocation was unconsti-

tutional. The defendants, being the Attorney-General,

District Justice Kearney, and Superintendant O'Brien,

contended that the plaintiff had not availed of the full

opportunity he had in the District Court of putting his

case. They referred to the judgment of Walsh J. in

East Donegal Co-operative Livestock Mart Ltd. v.

The Attorney-General,

(1970) I.R., in which he

states that Ministerial power or powers which cast

upon the Minister the duty of acting fairly and

judicially in accordance with the principles of con-

stitutional justice and they do not give him arbitrary

power to grant or refuse at his will. In

Ingle v.

O'Brien,

(1975) 109 I.L.T.R. 7, Pringle J. concluded

that in similar circumstances, the Commissioner had

failed to apply the rule "Audi alteram partem" by not

affording to the licensee an opportunity to make repre-

sentations against the revocation of his licence. It was

contended that the plaintiff could have put forward his

case in the District Court. However, Megarry J. in

Leary v. National Union of Vehicle Builders,

(1971)

Ch.D., held that, as a general rule, a failure of Natural

Justice in the trial body cannot be cured by a suffici-

ency of Natural Justice in an appellate body. A declara-

tion will accordingly be made that the purported revo-

cations of the licences were null and void, as plaintiff

had at no time been given an opportunity to state his

case.

(Moran

Attorney-General and others

— Doyle J.

— unreported — 11 July 1975.)

In a Planning Appeal, the Minister, in giving his deci-

sion, must act strictly and impartially upon the

evidence tendered at the oral hearing before the

Inspector, and upon no extraneous matters.

The facts have been summarised in the December

1974

Gazette

at page 206.

Walsh J.

having referred to

Murphy

Dublin Corporation,

(1972) I.R., stressed

that the Supreme Court had unanimously decided that,

if the Inspector's Report takes the form of a document,

it must contain an account of all the essentials of the

proceedings, and that the Minister alone was the sole

deciding authority, and must act judicially, and within

the bounds of Constitutional Justice; the Judge had

already stated in

McDonald v. Bord na gCon

that the

concept of Constitutional Justice entails much more

than the normal two precepts of Natural Justice.

Murphy's

case also decided that, if the Minister was

influenced in his decisions by the opinions or conclu-

sions of an Inspector, then the Minister's decision would

be open to review.

There is an alleged material difference between the

functions of the Inspector of a planning appeal under

the Planning and Development Act, 1963, and those of

an Inspector in an inquiry under the Housing Act,

1966, as in

Murphy

's case; Walsh J. held there was in

fact no such difference.

In all these cases, some fundamental principles are

unalterable, such as : (1) The Minister is the deciding

authority. (2) If the Minister comes to a conclusion not

supportable upon the evidence before him, he is acting

ultra vires.

(3) Neither the Minister nor an Inspector

can come to a conclusion of fact, unless there is evid-

ence upon which such conclusion can be reached. (4) If

the Inspector expresses a conclusion of fact, the Minis-

ter is quite free to come to a contrary conclusion, if

there is evidence to support it. (5) The Inspector must

transmit to the Minister a fair and accurate record of

the evidence, and of the arguments for and against the

questionnaire. (6) The Minister cannot avail himself of

any testimony, expert or otherwise, from his Depart-

ment or elsewhere without informing the persons con-

cerned, and giving them an opportunity to deal with

the evidence.

If there is no formal procedure laid down, as stated in

East Donegal Livestock Mart. v. Attorney-General,

(1970) I.R., the Minister would be bound to obey the

dictates of Constitutional Justice by affording the par-

ties affected the opportunity of knowing what evidence

he proposed to take an account, and giving them a fair

opportunity of making representations.

As Section 82 of the 1963 Act provides for an oral

hearing, it follows that all materials and evidence going

to the merits of the subject matter of the inquiry should

be laid open exclusively at the oral hearing. In this case

certain materials which were taken into acount by the

Minister, had not been raised at the preceding oral

hearing. The Minister's decision was consequently

ultra

vires,

because it took account of extraneous matters.

The Minister must not only make the final decision, but

also decide the valid constituent elements. Conse-

quently,

Walsh J.,

with whom

Budd J.

concurred,

would dismiss the appeal.

Henchy J.

would also dismiss the appeal. He emph-

asised that under S. 82 of the 1963 Act, when an oral

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