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18 Cards in this Set
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Test to distinguish between public and private Law |
Source of power test Public element test |
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State(Colquhoun) v D'Arcy Church of Ireland 1936 |
Not subject to JR Power derived from consent of members not statute or legislation General synod disciplining minister |
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HC Ruling |
JR would only issue against a court, tribunal or body of persons that: Had a duty to act judicially Had authority to impose liabilities or to determine questions affecting rights of individuals Derived authority from statute or common law |
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Murphy v Turf Club 1989 |
Racehorse trainer wanted to review decision to revoke his training licence and this terminated his ability too earn a living. Although a small public dimension, relationship derived solely from contract. Applicant had voluntarily submitted to Turf Club's rules Private matter - not subject to JR |
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Public Element Test |
Source of power still important but not only element. Courts now look at nature and type of power and whether there is a public element. |
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Beirne v Garda Commissioner 1993 |
1st time test used. Trainee Garda dismissed for alleged misconduct. Argued decision was based solely on private law. Finlay C.J. Decision can only be excluded from reach of jurisdiction of JR if it can be shown that it solely derived from individual contract made in private law. Garda Commissioner had power to dismiss + discipline in contract but it was public office and statutory powers were attached to it. |
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Bane v Garda Representatives Association |
Expulsion of Garda from the force for alleged misconduct. Kelly J: Decisions which ordinarily seen as coming within public domain and not exclusively derived from individual contract. Within jurisdiction of JR. |
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Geoghegan Principles. Geoghegan v Institute Chartered Accountants in Ireland 1995 |
Accountant seeking to restrain disciplinary procedures against him. Question of whether public element test applied only in limited cases or if there was a broader application in other situations. |
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Denham J SC List of factors to determine public element. |
Case related to major profession with important community association. Special connection with judicial organ of Govt, receivership, liquidation, examinership etc. Source of Powers - Charter, this plus legislation associated institute with executive and legislator. Functions of institute and its members came within public domain of state. Contract between institute and applicant (Necessary for individual to agree in standard form agreement to disciplinary proceedures in order to gain entrance to the institute) Consequences of domestic tribunal decision could be very serious for a member. |
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Browne v Dundalk UDC 1993 |
Rescission of contract for renting a Town Hall. Sinn fein annual conference Conract prima facia outside JR Barron J: Satisfied a crucial element brought it into public law. Council resolution was passed to cancel booking. Political grounds for cancellation. |
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Rafferty v Bus Eireann 1997 |
Applicants T's & C's changed following reorganisation of CIE (Made by statute) Kelly J identified Geoghegan principles. Major method public transport & employees important in community. Disputes could give rise to industrial action, consequences of hardship for people relying on service. Original provider of service was CIE, body given effect by state. Function of Bus Eireann & employees was public. Contractual relationship between Bus Eireann & employees regulated by statute. Consequences of unlawful interference with employees contractual rights v v serious. Entitled to JR approving Geoghegan. |
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Rajah v Royal College of Surgeons in Ireland 1994 |
Refused to allow student resit exams after failing twice. Jurisdiction derived not from public law but from applicants agreement to be bound by college regulations. Applicant was in same position as any other student in 3rd level education. Fact college derived its existence from charter or act of parliament not sufficient grounds for JR. Training institution, not professional practice organisation. |
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Quinn v Kings Inns 2004 |
Refused applicant admission for degree course Barrister at Law. Smyth J: Applicant not entitled to invoke public remedy for private law right. Applicants rights derived from private contract. Respondants powers might originally derive from charter but this is only indirectly relevant to consideration. Necessary to consider nature of power as well as source. Like Rajah, student institution, not professional practice. |
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Public Bodies and private functions |
Where public body is acting in private manner akin to private institution. Not necessarily subject to JR. |
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Healy v Fingal Co Co 1997 |
Was Council entitled to accrue monies payable to applicant against expenses owed by him for costs to council following legal proceedings. Administrative decision and policy. Serious breach of separation of powers if courts were to overturn every decision made by Govt. EG: Foreign policy and monetary policy are for Govt to decide, not judiciary. Courts willing to JR admin decisions, not willing to review policy.
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T.D. v Minister for Education 2001 |
SC held did not have any power to force Govt to implement particular policy. Breach of Separtion of Powers. Elected persons or bodies make policy decisions, admin tribunals make admin decisions. |
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Admin v Policy |
Difference in wording of an act. Minister shall is Admin. If and when Minister decides is Policy. Policy decisions can be JR'd in very limited circumstances. |
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McKenna v An Taoiseach 1995 |
SC held decision of Govt to use public funds to promote in a one sided way the outcome of a referendum was unconstitutional. Govt and executive both creatures of constitution and not empowered to act outside of it. Right and duty of court to review activities of Govt and ascertain if its activities are within its permitted areas of activity and function. |
