The Gazette 1992

GAZETTE

JUNE 1992

Television Commission, ex parte Television South West Broadcasting Ltd. (Not yet reported, Court of Appeal, 5th February, 1992).

of ultimate fact, undermines the value of the obligation and fulfils none of the functions the giving of reasons is intended to serve as described above. Unfortunately, as will be seen in part 2 of this article, existing Irish authorities appear equally confused as to what is required by a "statement of reasons". References 1. See e.g. Kiely -v- Minister for Social Welfare (No. 2) [1977] I.R. 267 at 274. 2. The scope of judicial review has been steadily expanding; see e.g. State (Lynch) -v- Cooney [1982] I.R. 337 and State (Keegan and Lysaght) -v- Stardust Victims' Compensation Tribunal [1986] I.R. 642. The cases dealing with the obligation to give reasons are cited in extenso below. See also Hogan and Morgan, Administrative Law in Ireland (2nd ed., London, 1991) at pages 457 to 463. 3. Contrast the very different conclusions reached in the High and Supreme Courts in O'Keefe -v- An Bord Pleanála [1992] ILRM 237, 256. 4. Reg. -v- Gaming Board of Great Britain ex parte Benaim and Khaida [1969] 1 All E.R. 904. 5. Schmidt -v- Secretary for Home Affairs [1969] 2 Ch 149; [1969] 1 All ER 904. Similar reasoning has manifested itself in Mclnnes -v- Onslow-Fane [1978] 3 All E.R. 211 (refusal of boxing manager's licence) and in Reg -v- Secretary of State for Home Affairs ex. parte Harrison [1988] 3 All E.R. 86 (refusal of ex-gratia award to person imprisoned and subsequently acquitted). This reasoning, and the privilege/right distinction, recommended itself to Costello J. in Pok Sun Shum -v- Ireland [1986] I.L.R.M. 593 at page 599 where deportation was ordered after the expiration of leave to remain in the State. 6. See e.g. Reg -v- Secretary of State for Home Affairs ex parte Hosenball [1977] 1 W.L.R. 766 cited with approval in Reg -v- Secretary for Home Affairs ex. parte Cheblak [1991] 2 All E.R. 319 at pages 321 and 322. 7. This was one of the grounds for Costello J.'s decision in Shum (at pages 600). 8. [1968] A.C. 997 per Lord Upjohn at pages 1061 and 1062; see also the more recent decision of the House of Lords, Reg -v- Secretary of State for Trade and (continued in the next issue)

case the right to reasons upon request applies to decisions appealable under the particular statute but the right is not dependent on the bringing of an appeal. There is considerable overlap between the two provisions. The High Court of Australia, in Osmond -v- Public Service Board of N.S.W. (1986) 159 C.L.R. 656, following British precedent, has ruled that there is no common-law duty to give reasons, overruling the New South Wales Court of Appeal whose majority decision, including the powerfully expressed leading judgment of Kirby P. is reported at [1984] 3 N.S.W.L.R. 447 and also at [1985]L.R.C. (Const.) 1041; see per Kirby P. at page 467 and at pages 1063 and 1064 respectively. 25. op. cit. at 460 to 462. 26. See Flick, "Administrative Adjudications and the Duty to Give Reasons - A Search for Criteria", [1978] Public Law 16 at pages 17 and 18; Richardson, "The Duty to Give Reasons: Potential and Practice" [1986] Public Law 437; both writers believe that there are other rationales. 27. Ansett Transport Industries (Operations) Pty. Ltd. -v- Wraith (1983) 48 A.L.T. 500. 28. (Unreported, Supreme Court, 20th July, 1990). 29. [1991] I.L.R.M. 750 at page 757. 30. See Richardson op. cit. at fn. 24 pages 444 and 445 and the footnotes thereto. For judicial recognition of the value of public participation in one area of the administrative process see State (Haverty) -v- An Bord Pleanála [1987] I.R. 485 and the cases cited therein. 31. as exemplified in Byrne -v- Ireland [1972] I.R. 241. 32. For the arguments historically advanced for not giving reasons see Flick, op. cit. at fn. 26 at page 19 and the footnotes thereto. 33. See e.g. C.W. Shipping Co. Ltd. -v- Limerick Harbour Commissioners [1989] I.L.R.M. 416 at page 419. 34. supra, fn. 22 above. 35. Both this comment and the next 36. supra, fn. 24. 37. supra, fn. 23 38. See Saginaw Broadcasing Co. -v- F.C.C. 96 F. 2d. 554 (D.C. Cir. 1938) and Phelps Dodge Corporation -v- N.L.R.& (1941) 313 U.S. 177, both of which were decided on common-law/ constitutional principles. The idealised decision-making process described in Saginaw is summarised in Flick op. cit. at fn. 26 at p.20. 39. R. -v- Sykes (1875) 1 Q.B.D. 52. 40. [1986] I.R. 750; [1987] I.L.R.M. 659. 41. [1986] 1 W.L.R. 477 at pps. 482 - 483. • ("reasons differ..") are made by Davis op. cit. at fn. 22 at volume 2, pps. 99 and 103 respectively.

9. [1987] I.R. 165 at page 172. 10. [1988] I.R. 51 at page 55.

11. In the light of the decisions of the Supreme Court in East Donegal Co- operative Livestock Marts Ltd. -v- Attorney-General [1970] I.R. 317 and State (Lynch) -v- Cooney, loc. cit., fn. 2 above, this contention was unsustainable. 12. International Fishing Vessels Ltd. -v- Minister for the Marine [1989] I.R. 149. 13. [1990] 2 I.R. 151, 160 per Finlay C.J. at page 163 and per Walsh J. at page 167. For a consideration of Fajujonu see Costello, "The Irish Deportation Power" (1990) 12 D.U.L.J. 81 in which reference is also made (at note 4) to an unreported decision, State (Touray) -v- Governor of Mountjoy (Irish Times, 14th December, 1985) in which McWilliam J. is reported as having quashed a refusal of leave to land for failure to give reasons. This faillure may have consisted of a breach of the duty imposed by Article 5, paragraph (2) of the Aliens Order, 1946 (S.R. & O., No. 395 of 1946) (inserted by Article 3 of the Aliens (Amendment) Order, 1975 (S.I. No. 128 of 1975). Article 5, paragraph (2) requires that the particular ground in paragraph (1) invoked to justify refusal of leave to land be notified to the applicant in writing. 14. loc. cit. see fn. 5 above. 15. [1988] I.R. 198. 16. Sherlock -v- Governor of Mountjoy [1991] 1 I.R. 451. 17. State (Murphy) -v- Kielt [1984] I.R. 458; for the privelege/right distinction see fn. 5 above and supporting text. 18. See Savage -v- D.P.P. [1982] I.L.R.M. 385 and Judge -v- D.P.P. [1984] I.L.R.M. 224. The decisions and their reasoning have not been universally applauded; see Hogan and Morgan, op. cit. at pages 558 to 563 and the footnotes thereto. It appears that certain decisions of the D.P.P. may be reviewable in certain circumstances: see State (McCormack) -v- Curran [1987] I.L.R.M. 225. 19. [1987] I.R. 329. 20. A similar obligation is placed on local planning authorities by the same section, supplemented by Article 31 (g) of the 1977 Regulations. 21. loc. cit. see fn. 3. 22. Administrative Procedure Act (5 USC s557(c)); on the Act and on the parallel common-law duty to give reasons see Davis, Administrative Law TYeatise (5 vols., 1980-1984), chap. 14 at page 99 forward. 23. Tribunals and Inquiries Act, 1958, s.12. The 1958 Act was replaced by the Tribunals and Inquiries Act, 1971, the relevant section of which is again s.12. 24. See Administrative Appeals Tribunal Act, 1975, s.43 and Administrative Decisions (Judicial Review) Act, 1977 s.13. In each

Industry ex. parte Lonrho pic [1989] 1 W.L.R. 525 which re-affirms both the non-existence of any general common-law duty to give reasons and the continuing survival of the principle propounded in Padfield; see per Lord Keith at pages 539 and 540. See however R -v- Independent

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