Supreme Court: Judge infringed fair procedures in determining issue not specifically pleaded

About this case:

• Citation:
  [2018] IESC 50
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice John MacMenamin

Background

Mr Seosamh MacDonncha, was appointed as CEO of Galway Vocational Education Committee (VEC) in January 2006. Dr Katie Sweeney was appointed CEO of Mayo VEC in September 2006.

The Court described both as ‘well regarded statutory officers’ whose offices and entitlements were governed by the Vocational Education Acts 1930–2001. One such entitlement was a form of allowance paid to VEC CEOs – the Transport Liaison Officers Allowances (TLOA). The average annual TLOA to Mr MacDonncha was over €12,000, and the average to Dr Sweeney was between €11,000 and €12,000; representing a significant part of their remuneration package.

The TLOA was introduced in recognition of the extra administrative burdens which were placed on the CEOs as a result of the operation of the school transport system – however, over time the work was performed for other persons, and consequently the rationale for the payment disappeared.

In 2010, the government decided that the TLOA should terminate, and the Department of Education informed the CEOs that their role as actual transport liaison officers would conclude as of the end of December 2011. By way of concession, the TLOA payments continued to be paid until June 2012

The government also decided to re-organise the vocational education sector and to reduce 33 VECs to 16 new Educational Training Boards (ETBs) -  potentially impacting the remuneration and status of Mr MacDonncha and Dr Sweeney.

The backdrop to the judicial review proceedings brought by Mr MacDonncha and Dr Sweeney was the Education and Training Board Bill, which began proceeding through the Oireachtas in 2012.

On the 19^th June 2012, the Minister for Education and Skills promulgated Circular No. 24/2012 – which set out the categorisation of the new ETBs ‘for the purposes of the pay scales applicable to CEOs of these Boards’. Paragraph 3 of the Circular stated that the categorisation would ’apply from the commencement date of the legislation bringing into force the new Education and Training Boards’.  

On the 8th May 2013 (the last day of the High Court hearing in these proceedings), the Education and Training Boards Act 2013 repealed the Vocational Educational Acts 1930–2001, with the exception of s.36 of the Vocational Education Committee (Amendment) Act 2001, and various statutory instruments made under the previous legislation.

High Court

In the High Court, Mr Justice Gerard Hogan found, firstly, that Circular No. 24/2012 was not unlawful in any way; secondly, the Department of Education had complied with the terms of the Croke Park Agreement 2009.

The ‘third issue’ in the High Court was regarding the lawfulness of the termination of the TLOA. Mr Justice Hogan found that, by virtue of s. 15(6) of the Vocational Education Committee (Amendment) Act 2001, the payment of allowances was to be determined by the Vocational Education Committee themselves and the Minister’s role was simply to consent to such payment.

Concluding that the Minister had acted ultra vires s.15(6) of the Vocational Education Committee (Amendment) Act 2001, Mr Justice Hogan said that the Minister did not have ‘the power to terminate such payments in the manner in which he purported to do so and the revocation of such payments in June 2012 by the Minister [i.e. prior to the 2013 Act coming into force] must accordingly be judged to be unlawful’.

Supreme Court

In appealing Mr Justice Hogan’s determination on the ‘third issue’, the Minister submitted that ‘the third issue was never argued, and that it was simply not open to the High Court to reach this conclusion on an issue that was not before it, and had not been argued’. The Minister said that if the point had been pleaded and raised, arguments would have been advanced to refute the conclusion reached by Mr Justice Hogan.

Submitting that this was ‘contrary to fair procedures and to the principles of natural and constitutional justice, including without limitation to the principle audi alteram partem’, the Minister  sought a setting aside of the judgment and order of the High Court on the ‘third issue’.

Unfortunately, Mr MacDonncha died since the delivery of the High Court’s judgment, and  no application had been made to reconstitute the proceedings. However, the Court determined that Dr Sweeney’s case should nonetheless proceed, and that the challenge brought by the late Mr MacDonncha could be later reconstituted.

Delivering the judgment of the Court, Mr Justice John MacMenamin said that the issue was ‘not whether a vires question was raised, but rather, whether it had ever been submitted that the Minister in fact had no power to terminate the TLOA?’

Stating that it was not possible to find any specific claim in the applicants’ case that the Minister had no power to terminate the TLOA, and that the termination thereof was thereby invalid, Mr Justice MacMenamin explained that the ‘Rules of the Superior Courts… make plain that an applicant’s case must be pleaded clearly and explicitly’.

While there was no doubt that vires was alluded to in argument on a number of occasions, Mr Justice MacMenamin said that the explicit point determined by the judge was not raised either by the judge or by counsel.

Characterising the situation as ‘mischance’, Mr Justice MacMenamin said it was a departure from fair procedure, going to the question of fairness. In this regard, Mr Justice MacMenamin emphasised that, as a matter of fair procedure, a party must be entitled to know the precise case being pleaded against them.  

Ordering that the judgment and order of the High Court be set aside on the ‘third issue’, the Court remitted the sole question of vires to the High Court for re-argument.

• by Seosamh Gráinséir for Irish Legal News