277 / 336
hearing is requested, it must be held. The Inspector is
to furnish to the Minister a report
on (not of)
the oral
hearing. A report on the oral hearing reports an accur-
ate, but not necessarily exhaustive account of what
transpired at the hearing. It is inherent in the scheme
that the facts shall be found by the Inspector. It is he
who will have seen and heard the witnesses, and con-
sequently the Minister, who learns only of the evidence
at secondhand, cannot decide the evidence which might
conflict with the person who saw and heard the wit-
nesses. While the Inspector
must
include in his report
a fair and accurate summary of the facts, he
niay
include observations, submissions and recommendations
of what took place.
The Minister must determine the application as if it
had been made in the first instance. As a layman, he
may not understand technical considerations, so he has
a right to inform himself by expert opinion, whether
from experts from within or without his Department.
But, under the guise of expert advice, the Minister may
not allow himself to be informed as to factual matters
not in the report. As the Minister is acting in a quasi-
judicial capacity, he must not act in disregard of the
rules of Natural Justice.
In this case the Inspector's report was merely treated
as an inter-departmental memorandum, subject to com-
ment, criticism and correction, rather than as a statu-
tory document. Other officials of the Department also
put forward their views. What eventually reached the
Minister was not an Inspector's report, but rather a
series of memoranda with interpolated comment and
suggestions which was not permitted by the Act. The
decision was consequently
ultra vires
and invalid. In
this case the Inspector and the other officials appear to
have misconstrued their roles through inadvertency.
The appeal is consequently dismissed.
Gannon J.
with whom
Griffin J.
concurred, stated that
the function laid upon the Minister in this case is cast
on him as a designated person, and is consequently not
an executive function. If the Minister is exercising
Ministerial functions as he would under S. 23 of the
1963 Act, by giving guidance and general instructions
relating to the preparation of a development plan, then
the Minister has available to him the technical and
expert advice of a specialized planning section of his
Department. If the Minister is a designated person, this
does not necessarily require the involvement of the
planning or any section of the Department.
The oral hearing under S. 82 is a public hearing and
the Legislature clearly intends that the Minister should
make his determination only on the evidence elicited at
such hearing. In relation to designated questions of fact,
it would seem that the only person who could make a
determination would be the Inspector who heard and
observed the witnesses. The expert evidence of officers
of the Department may be given in evidence at an oral
hearing before an Inspector. The inferences to be drawn
from opinions of experts may be taken by the Minister,
and not by the Inspector.
Before making his decision, the Minister must con-
sider the evidence and facts reported to him by the
Inspector. If necessary, the Minister may consult the
High Gourt on a point of law, and he may also find it
necessary to consult a legal or planning adviser in order
to obtain technical assistance strictly on the report. If
an official has given evidence before the Inspector, he
should not be consulted by the Minister. The Minister
may not invite the Inspector or anyone else to make the
decision required of him. On the facts, the Minister,
on the hearing of the appeal did not merely consider
the report of the Inspector on the oral hearing, but
also a complete departmental file containing much
additional irrelevant material. The appeal is dismissed
on the grounds stated by
O'Higgins J.
and the plaintiff
is entitled to a fresh oral hearing.
(Susan Geraghty v. Minister for Local Government
(No. 2) — Supreme Court (Walsh, Budd, Henchy,
Griffin and Gannon J.J.) — Separate judgments by
Walsh J., Henchy J. and Gannon J. — unreported —
30 July 1975.)
Injunction for alleged libel removed when facts granting
it were proved false.
Defendant had obtained an injunction from Kenny
J. in September against plaintiffs, restraining them from
publishing further articles about him, on the alleged
ground that they were libellous. Defendant, John Grey,
of Thomastown Avenue, Dun Laoghaire, complained
that on September 21 an article in the
Sunday World
entitled "Find this evil man", alleged that he lived off
the immoral earnings of prostitutes, that he organised
prostitution in Dublin, and that he had beaten, threat-
ened and intimidated prostitutes either to pay money
or to leave the country. Plaintiffs contended that they
had published defamatory statements about defendant,
and that they had ample justification to publish more
defamatory matter about him. Plaintiffs then produced
four affidavits from prostitutes proving physical moles-
tation, dire threats, and intimidation to kill. Having
read these affidavits, Kenny J. revoked the injunction,
and gave the plaintiffs permission to print the material
they had intended.
(Sunday Newspapers Ltd. and Creation Printing Co.
Ltd. v. Grey and Deans
— Kenny J. — unreported —
13 October 1975.)
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