Retrospective application of society's new expulsion rule was unfair

James Walsh (applicant/ respondent) v The Irish Red Cross Society (Cumann Croise Deirge na hEireann) (respondent/ appellant).

Judicial Review - Decision to expel applicant from Irish Red Cross Society Applicant gave interview to newspaper after being instructed not to do so - Rule change subsequent to interview to provide for expulsion of members - Whether decisions of the society were amenable to judicial review - Whether membership of the society a matter of private or public law - Society set up by order provided for by statute - Order provides for membership to be open to all citizens who pay fee - Whether applying new rule retrospectively unfair to applicant - Whether new rule ultra vires - Red Cross Act 1938 (No 32), section 1 - Irish Red Cross Society Order 1939 (SR & O No 206 of 1939)

The Supreme Court (the Chief Justice, Mr Justice Hamilton; Mr Justice O'Flaherty, Mr Justice Blayney, Mrs Justice Denham and Mr Justice Barrington); judgment delivered 7 March 1997.

WHERE a member of the Irish Red Cross Society was expelled after giving an interview to a newspaper against the instructions of the executive committee of the society, then the question arose as to whether decisions of the society were amenable to judicial review. The society had amended its rules subsequent to the interview to allow for the expulsion of members provided due cause was shown.

Membership of the society was not dependent on any contractual relationship but existed as a matter of right given that the order setting up the society provided that membership was open to all Irish citizens who paid the fee. Therefore, membership was a matter of public law and decisions of the society were amenable to judicial review.

Retrospectively applying a new rule to expel the applicant was unfair given that it purported to remove the applicant for conduct which occurred before the rule was made.

The Supreme Court so held in dismissing an appeal from a decision of the High Court quashing decisions of the society expelling the applicant from membership.

Patrick Hanratty SC and David Barniville BL for the respondent/ appellant, Paul O'Higgins SC and Paul Gardiner BL for the applicant/ respondent.

MR JUSTICE BLAYNEY, delivering the unanimous judgment of the court, said that Mr Walsh had been a member of the Irish Red Cross Society ("the society") for 38 years when the events took place which gave rise to these proceedings and he had been a member, of the central council, the society's governing body, for 14 years. On 26 May 1993 an article appeared in The Irish Times which was very critical of the society and part of the information on which the article was based was supplied by Mr Walsh. It was claimed by the executive council of the society that Mr Walsh had given an interview to the journalist who had written the article and this was contrary to an express direction which had been given to him. Mr Walsh claimed that he had not given an interview but had answered certain questions put to him over the telephone by the journalist.

Mr Justice Blayney said that following the publication of the article, the executive committee took steps to remove Mr Walsh from membership of the society in exercise of a power given it by an amended rule adopted by the central council on 27 May 1993 and which provided that "the Executive Committee of the Central Council may, provided due cause is shown, decline to admit any person to membership, or remove any person from membership of the Society".

At a meeting on 21 October 1993, the executive committee resolved that Mr Walsh should be removed from membership due to his decision to grant an interview to the press in circumstances where he had been specifically requested not to do so and where it was alleged that the article was damaging to the society. Mr Walsh's appeal against this decision to the central council was dismissed on 17 February 1994.

Mr Walsh then initiated judicial review proceedings and Mr Justice Geoghegan in the High Court held that Mr Walsh had not been validly removed as a member of the society. In addition the court held that the amendment to Rule 43 by the central council did not have retrospective effect and the society had no power to expel Mr Walsh for matters arising prior to the amendment of the rule on 27 May 1993.

Mr Justice Blayney said that the society appealed this order and relied on two grounds, namely (1) that the society was not amenable to judicial review and (2) that the central council was entitled to rely on Rule 43 as amended on 27 May 1993 for the purpose of removing Mr Walsh from membership. Mr Justice Blayney said that the court was satisfied that neither of these grounds was sustainable.

Referring to the first ground, Mr Justice Blayney said the question arose as to whether membership of the Society was a matter of private or public law. It was submitted on behalf of the society that it was a matter of private law and accordingly, decisions of the executive committee and central council were not amenable to judicial review. It was submitted that the society was not exercising any statutory power or function when admitting a member or terminating membership, nor was it exercising any public function.

In rejecting this submission Mr Justice Blayney said that when one examined the manner in which the society was established, its structure and rules, it was clear that membership of the society was not governed by private law but was in the public domain.

The society was established by the Irish Red Cross Society Order 1939 (SR & O No 206 of 1939) which was made by the Government in exercise of the powers conferred on it by section 1 of the Red Cross Act 1938. Article 2 of the 1939 Order provided for the establishment of the society and article 3 provided that the society should be a body corporate and article 4 set out its objects. Article 5 dealt with membership of the society and provided that all Irish citizens are eligible for membership of the society. The central council was created by article 8 and article 13 established the executive committee of the central council and gave the central council power to delegate matters to the executive committee. Finally article 15 gave the central council power to make rules in relation to matters set out in the article and gave power to the council to amend the rules "so often as they think fit".

Mr Justice Blayney said that one of the matters in respect of which the central council was given power to make rules was the admission of persons to membership of the society and the final matter listed in article 15 was "any other matter which in the opinion of the central council it was expedient to provide for in order to enable the society to effectively carry out its objects and exercise all or any of its powers". Rule 15 made pursuant to article 15 provided that". . . a member is any Irish citizen who expresses a wish to become a member of the Society and who has paid the appropriate fee". This rule was amended on 27 May 1993 to the effect that the executive committee was given power to remove persons from membership of the society.

Mr Justice Blayney said that the primary provision in regard to membership of the society was article 5 of the 1939 Order and the only rule relating to membership was Rule 43, and so the only conditions to be satisfied by a person wishing to become a member were to be an Irish citizen and to pay the appropriate fee. Therefore, the court was satisfied that membership of the society was not consensual but was a right created by article 5 of the 1939 order. The only qualification to this right was under the amended Rule 43 whereby the Society could decline to admit a person provided due cause is shown", but Mr Justice Blayney said that this did not alter the fact that a person became a member in the normal course as of right and not by reason of entering into any contract with the society. In these circumstances, Mr Justice Blayney said that the court was satisfied no element of private law was involved and that membership was beyond doubt in the public domain since it was conferred by a statutory order and both of the bodies which purported to remove Mr Walsh were in the public domain since both were set up by the same 1939 Order. Therefore, the court concluded that the decisions of the executive committee and the central council were amenable to judicial review.

The society relied on two decisions which Mr Justice Blayney said did not support its contention that it was not amenable to judicial review. In Beirne v Commissioner of An Garda Siochana [1993] IR 172 the Supreme Court held that the decision of the Commissioner to dismiss a recruit from the force was amenable to judicial review notwithstanding the fact that the right to dismiss was a contractual right arising from the contract between the Commissioner and the recruit. In Beirne, the Chief Justice Mr Justice Finlay referred to Murphy v Irish Turf Chub [1989] IR 171 where it was held that judicial review was not applicable by reason of the fact that the relationship between the applicant and the respondent derived solely from contract. Mr Justice Blayney distinguished Murphy from the instant case as there was no question of the relationship between Mr Walsh and the society being derived from contract.

Turning to the second ground of appeal, namely that the High Court was wrong in holding that the central council could not rely on the amendment to Rule 43, Mr Justice Blayney said that the High Court had held that the amended Rule 43 could not be interpreted as permitting removal for conduct which occurred before the rule was made and indeed the High Court judge had gone on to say that if he was wrong in this, then the amendment itself was ultra vires as being unfair and unreasonable.

Mr Justice Blayney said that, while Mr Walsh must have been aware that he was acting in breach of the executive committee's instructions when he gave the interview, it could not have occurred to him that he was placing his membership in jeopardy since at the time there was no rule enabling a member to be expelled. Mr Justice Blayney said that to hold that his membership was in jeopardy by reason of a rule adopted subsequently would be wholly unjust and for this reason the amendment to rule 43 could not be given retrospective effect. It followed that neither the executive committee nor the central council had power to expel Mr Walsh and so their decisions were set aside as having been ultra vires.

It was finally submitted on behalf of the society that their decision should be upheld because one of the grounds of complaint against Mr Walsh was a continuing one and so could be relied on as supporting his expulsion. This was a complaint that Mr Walsh had refused to reveal the source of a damaging allegation against the treasurer of the society. Rejecting this submission, Mr Justice Blayney said that the major complaint against Mr Walsh was that he had given an interview to a journalist and this was the principal reason for deciding to remove him. If the executive committee was not entitled to rely on this ground, because the amendment to rule 43 was not retrospective, then in making their decisions, the executive committee and the central council took into account matters to which they were not entitled to have regard and on this ground their decisions would be a nullity.

Solicitors: A. & L. Goodbody (Dublin) for the respondent/appellant; O'Donnell Sweeney (Dublin) for applicant/respondent.