Patrick Dooner (applicant) v Garda Sioc hana Complaints Board and the Commissioner of An Garda Siochana (respondents).

Judicial Review - Requirements of natural and constitutional justice - Audi alteram partem - Whether decision maker required to notify party adversely affected of full text of complaint and other material - Garda Siochana (Complaints) Act 1986, section 7 - Circumstances for allowing amendment of grounds of judicial review - Rules of the Superior Courts, Order 84 rule 23 and Order 124.

The High Court (Mr Justice Finnegan); judgment delivered 2 June 2000.

In order to comply with the rules of natural and constitutional justice the text of a complaint, or an accurate statement thereof and any material made available to the decision maker, ought to have been made available to the applicant and an opportunity afforded to him to respond to the same and make submissions. Furthermore, leave to amend grounds for judicial review is granted only in exceptional circumstances, but also where facts come to light which could not have been known at the time of leave to apply for judicial review and such amendment would not prejudice the respondents.

The High Court so held in granting the relief sought by way of orders of certiorari.

Bruce Antoniotti SC and Patrick O'Connell BL for the applicant; Benedict O Floinn BL for the respondents.

Mr Justice Finnegan said that the background to this case was that the applicant had stopped a Mr Muldoon ("the complainant") who was driving a car in order to check for insurance. On the applicant's version of the facts, he apologised for stopping the complainant, not having been aware that he was part of a funeral party. The complainant made a written complaint to the first respondent ("the board") pursuant to the Garda Siochana (Complaints) Act 1986.

Mr Justice Finnegan said he was satisfied that the Act envisages two separate and distinct stages. Firstly, an investigative stage by and under the direction of the board, and secondly, a determination by the second respondent ("the commissioner") who would impose an appropriate penalty. The board's function and powers are circumscribed by the provisions of Section 7(4)(a) of the Act. It must form an opinion, having considered the report of an investigating officer, the relevant comments and recommendations of its chief executive and any representations made by the member, whether a breach of discipline has been disclosed. Mr Justice Finnegan specifically stated that the board does not determine whether or not there has been a breach of discipline as this is a matter for the commissioner. In this case the board informed the applicant that in their opinion breaches of discipline might be disclosed.

Mr Justice Finnegan stated that the requirements of natural and constitutional justice in any particular case vary with the particular circumstances. In the present circumstances the penalties fall far short of dismissal, being limited to advice, admonition or warning, but may nonetheless have serious consequences for the applicant in terms of his future good name and his career within An Garda Siochana.

The requirements of natural and constitutional justice may not be appropriate in their full stringency as outlined in Re Haughey [1991] IR 217. The minimum a person is entitled to is to be informed of the charge against him and to be given an opportunity to answer it and to make submissions as held in Gunn v Bord na Cholaiste Elaine is Deartha [1990] 2 IR 168.

The commissioner notified the applicant of part only of the complaint. Mr Justice Finnegan was satisfied that had the full text of the complaint or an accurate and complete report of the same been furnished to the applicant, the representations made by the him pursuant to Section 7(4) of the Act might well have been different. He referred to similar circumstances in Mr Justice Budd's decision in Tom Cassidy v Shan non Castle Banquets and Heritage Limited (High Court, 30 July 1999, unreported). In that case the complainant had made a number of statements which were before the decision-maker and which were not made available to the plaintiff and it was held that there was a failure to comply with the rule audi alteram partem. Reference was made in that judgment to the decision of the Supreme Court in Georgopoulos v Beaumont Hospital Board (4 June 1997, unreported), where it was accepted that there was a breach of fair procedures in circumstances where the decision maker acts on the basis of information which has been obtained outside of the hearing and which is not disclosed to the party adversely affected.

Mr Justice Finnegan said that the most important omission from the notification to the applicant of the complaint was the statement that the applicant had "harassed members of my family". In addition, the applicant was not notified of the following statement: "Garda Dooner had previously seen me walking behind the hearse knowing whose funeral it was". In the absence of knowledge of these two statements, the applicant was at a serious disadvantage in responding to the complaint actually made. The former suggests a course of conduct on the part of the applicant which would justify a finding of abuse of authority or discreditable conduct, rather than discourtesy which was suggested by the notification sent to the applicant. An accurate notification would have enabled the applicant to place relevant information before the board as to the course of his dealings with members of the complainant's family. Had he been aware of the latter statement, he could have called in aid the observer in the patrol car who accompanied him on that occasion, to corroborate his statement to the board that he was initially unaware that the complainant was attending a funeral. In these circumstances, Mr Justice Finnegan said he was satisfied that there was a serious non-observance of the rules of natural justice. In making his determination after the investigation stage, the commissioner had a copy of the complaint and proceeded to make a finding without affording the applicant sight of the complaint or indeed the other material laid before him.

Mr Justice Finnegan said that in order to comply with the rules of natural justice the text of the complaint or an accurate statement thereof and such material ought to have been made available to the applicant and an opportunity afforded to him to respond to the same either by the board, before submitting the material to the commissioner, or by the commissioner before making a determination. Further, it would be appropriate that an opportunity be afforded to the applicant by the commissioner to make submissions as to penalty and no such opportunity was given as the commissioner without affording the applicant such an opportunity decided to deal with the same pursuant to Section 7(4) by way of advice.

On opening, counsel for the applicant had sought leave to amend the grounds in his statement grounding application for judicial review. Mr Justice Finnegan deferred consideration of that issue until the conclusion of the hearing. An application for leave to amend is governed by the Rules of the Superior Courts, Order 84 rule 23. This provides for the court to allow a party to introduce different or additional grounds on such terms as it thinks fit. However, the party intending to apply for leave to amend must give notice of his intention and of any proposed amendment to all other parties. This rule has been interpreted in Molloy v Governor of Limerick Prison (unreported, Supreme Court, 12 July 1991).

Mr Justice Finnegan noted that in this case no notice of intention to apply for leave to amend was given to the respondent as required under Order 84 rule 23(3). He said that he had power to deal with the application nonetheless by virtue of Order 124. The two grounds sought to be added were, firstly, that decisions of the board and the commissioner were unreasonable and irrational and, secondly, that the board and the commissioner had acted contrary to natural and constitutional justice in denying the applicant his rights under the audi alteram partem rule. Mr Justice Finnegan adopted the approach in McCormack v Garda Siochana Complaint Board [1997] 2 IR 489 where it was held that a grounding statement could only be amended in exceptional circumstances, and also where facts came to light that could not have been known at the leave stage and such amendment would not prejudice the respondents. In this case, the applicant only became aware of the full text of the complaint when the respondents' replying affidavit was sworn. As of the date of the hearing, the applicant had no knowledge of the material placed before the commissioner. In the circumstances, having regard to the manner in which the hearing proceeded, there would be no injustice to the respondents by allowing an amendment at this late stage and so Mr Justice Finnegan allowed the addition of the second ground sought to be included.

Mr Justice Finnegan made orders of certiorari by way of allowing the applications for judicial review of the decisions of the board and the commissioner.

Solicitors: Hughes Murphy & Co (Dublin) for the applicant; Chief State Solicitor for the respondents.