The Gazette 1975

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

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 v. Attorney-General and others — Doyle J. — unreported — 11 July 1975.) The facts have been summarised in the December 1974 Gazette at page 206. Walsh J. having referred to Murphy v. 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 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.

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