The Gazette 1994

GAZETTE

AUGUST/SEPTEMBER 1994

Supreme Court does not have jurisdic- tion to discharge an order which did not give the parties liberty to apply and which was made in accordance with the law as it then was and which was per- fectly correct and which carried out the full meaning and intent of the Supreme Court. Belville Holdings Ltd v. Revenue Commissioners [1994] ILRM 29. (3) The issues raised by the application, even if a special jurisdiction were assumed by the Supreme Court in the case of consti- tutional issues which it would otherwise not have, would involve the court in adjudicating upon the interpre- tation of each of the two amendments to Article 40.3.3° of the Constitution. The Supreme Court cannot, otherwise than in the most exceptional circumstances dictated by the necessity of justice, con- sider an issue of constitutional law which, though arising in a case not yet determined by it, has not been fully ar- gued and decided in the High Court. (4) It would be wholly inconsistent with the constitutional obligations and jurispru- dence of the Supreme Court for it to consider a question concerning the in- terpretation of the Constitution by way of motion to vary an order previously made in an appeal finally determined by it. Per Denham J (dissenting): (1) The Supreme Court is not exclusively an ap- pellate court. It has an original non- appellate jurisdiction which is explicit under Articles 12.3 and 26 of the Consti- tution and an implicit jurisdiction in certain rare instances to determine an issue not decided by the High Court. State (Browne) v. Feran [1967] IR 147; Murphy v. Attorney General [1982] IR 241; K.D. (otherwise C.) v. M.C. [1985] IR 697; B. v. B. [1975] IR 54 approved. (2) The Supreme Court has an inherent jurisdic- tion to ensure that justice is done and in particular to ensure that the Constitu- tion and constitutional rights are not circumvented. State (Quinn) v. Ryan [1965] IR 70; Meskell v. C1E [1973] IR 121; McGee v. Attorney General [1974] IR 285 approved. (3) This jurisdiction must be exercised sparingly in a non-appellate way as the fabric of the administration of justice and the system of courts is best served by a clear hierarchical structure concluding in the Supreme Court. In particular, for this exceptional jurisdic- tion to be exercised there must be an element of transiency in the time in which the constitutional right can be protected. (4) The absence of legislation giving effect to the constitutional right of freedom of information and travel does not nullify or postpone the consti- tutional right. Consequently, the constitutional amendments have the force of constitutional law irrespective of legislation.

committee of college amenable to judicial review - Whether jurisdiction derived from public law or contract - Whetherfair proce- dures adopted by college - Whether obligation to give reasons for decision Facts The applicant, who was a medi- cal student at the Royal College of Surgeons in Ireland, had failed her pre- medical course in the summer of 1992, and again at repeat exams in the autumn of 1992. Under the rules of the college, a student who had failed at the repeat examination was considered dis- continued. Such a student was obliged to appeal to the student progress com- mittee who, in the case of mitigating circumstances, could grant permission to repeat the year. If unsuccessful before that body, provision was made for a further appeal to an academic appeals board. The applicant, who claimed that her studies had been affected by her suffering from an illness and personal problems, appealed unsuccessfully to the student progress committee. She then appealed, again unsuccessfully, to the academic appeals board. The appli- cant sought judicial review to quash the decision of the academic appeals board contending that the board had miscon- strued the scope of its own appellate jurisdiction, that one of the members of the appeals board had been over-dis- missive of her personal problems and had denied her a proper hearing, and in addition, that the decision of the board was invalidated by the failure of the board to state reasons for its decision. It was contended on behalf of the respon- dents, inter alia, that the Royal College of Surgeons was not amenable to judi- cial review. Held by Keane J in refusing the appli- cation for judicial review: (1) The appeals committee of the college de- rived its jurisdiction solely from the private contract of membership be- tween the applicant and the college, and as such was not subject to judicial re- view. Murphy v. Turf Club [1989] IR 172 and Beirne v. Commissioner of An Garda Síochána [1993] ILRM 1 applied. (2) The fact that the college, like other third level institutions derives its existence from a charter or act of parliament, is not a sufficient ground for bringing matters relating to the conduct and aca- demic standing of its students within the ambit of judicial review. (3) In any event, the appeals committee had heard the appeal in a fair and reasonable man- ner, and without breaching fair proce- dures. (4) The appeals committee had not misinterpreted the scope of its ap- pellate jurisdiction. (5) There is an obligation on bodies which exercise functions of a judicial or quasi-judicial nature determining legal rights and ob- ligations to give reasons for their

decisions and this requirement may even extend to bodies exercising purely administrative functions. However the decision made by the respondents was not of such a nature as to necessitate the giving of reasons. Reported at [1994] 1 ILRM 233 The Attorney General at the Relation of the Society for the Protection of Unborn Children (Ireland) Ltd v. Open Door Counselling Ltd and Dublin Well Woman Centre Ltd: Supreme Court (Finlay CJ, Hederman, Egan, Blayney and Denham JJ) 20 July 1993 Constitution - Order of Supreme Court - Amendments to Constitution - Application to discharge order based on constitutional amendments - Whether jurisdiction to dis- charge or vary final order previously made - Whether different considerations apply to constitutional amendments - Whether court could adjudicate upon the interpreta- tion of the amendments - Constitution of Ireland 1937, Articles 34 and 40.3.3° Facts The second named defendant ap- plied by notice of motion grounded on the affidavit of its chief executive and director to discharge, or alternatively amend as appropriate, an order of the Supreme Court dated 16 March 1988 restraining that defendant from assist- ing (in any way) pregnant women within the jurisdiction to travel abroad to obtain abortions. The application arose out of the 13th and 14th Amend- ments to the Constitution which provided for the freedom to make avail- able information within the jurisdiction concerning services lawfully available in another jurisdiction. The second named defendant claimed that the re- straints contained in the Supreme Court order were not now maintainable fol- lowing the constitutional amendments. The plaintiff contended that the Su- preme Court order should remain in force until legislation was introduced to deal with the implementation of the 14th Amendment to the Constitution. The Attorney General's position was that the Supreme Court order was cor- rect when made but, because of the constitutional amendments, was now inconsistent with the Constitution. Held by the Supreme Court (Finlay CJ; Hederman, Egan, Blayney JJ concur- ring, Denham J dissenting) in refusing the motion. (1) Under the terms of Arti- cle 34 of the Constitution, the Supreme Court is a court of appeal only and does not have any originating jurisdiction of any kind other than that expressly pro- vided for in Article 12.3 and Article 26 of the Constitution. (2) Notwithstand- ing the constitutional amendments, the

Reported at [1994] 1 ILRM 256

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