High Court of Ireland Decisions

1. This case is another chapter in the sorry and, some might think, unseemly, saga of bitterness and dissent which has afflicted the representation of rank and file members of the police force of this State for the last few years.

2. It has its origins in earlier litigation which was heard before Morris J. in March 1994. They were Judicial Review proceedings brought against the Garda Representative Association ( the GRA). Two of the applicants in the earlier proceedings are Applicants in the present Judicial Review. The earlier proceedings sought an order restraining the GRA from conducting a ballot of its members in relation to a claim for pensionability of allowances save in compliance with the directions of the Central Executive Committee of the GRA made on the 19th February, 1994. It is clear from the judgment of Morris J., delivered on the 25th March, 1994, that a major issue of fact fell to be determined by him in those proceedings. It concerned the decision of the Central Executive Committee of the GRA made on the 10th February, 1994. Over a number of days he heard direct examination and cross-examination of various witnesses who were in attendance at the meeting of the Central Executive Committee on the relevant date. He had to make findings as to what transpired at that meeting.

3. Each of the Applicants in the present proceedings gave evidence for the applicants in the earlier Judicial Review proceedings to which I have just alluded.

4. Evidence was given for the GRA at that hearing by, inter alia, Paul Browne, Michael Kirby and P.J. Kelly, all of whom are Respondents to the present proceedings.

5. Morris J. found against the then applicants and their proceedings were dismissed.

6. It is clear from the terms of the judgment of Morris J. that a conflict of evidence arose in the proceedings before him. He had to resolve that. He did so in favour of the respondents. In so doing, he clearly preferred the evidence given on behalf of the GRA to that given by the then applicants.

7. It is pertinent to point out that when the earlier Judicial Review proceedings were begun, all three Applicants in the present proceedings were members of the Central Executive Committee of the GRA. It is appropriate at this stage to examine the basis and structure of that Association.

8. The GRA was established pursuant to the Garda Siochana Acts, 1923-1977 and the Garda Siochana (Associations) Regulations, 1978, as amended. Section 13 of the Garda Siochana Act, 1924, as inserted by Section 1 of the Garda Siochana Act, 1977 provides that the Minister for Justice may establish by regulation an association or associations to represent members of the Garda Siochana in all matters affecting their welfare and efficiency. The 1978 Regulations effected the establishment of the GRA. The Association is open to members of the Garda Siochana with the rank of Garda. It is governed by rules set out in the First Schedule to the Regulations. These Regulations have been amended from time to time as indeed have the rules governing the Association. The government of the GRA is carried out by a Central Executive Committee and Divisional Committees. The Central Executive Committee consists of representatives from each of the Divisional Committees in addition to the General Secretary, the Assistant General Secretary and the Assistant to the General Secretary.

9. It is to be noted that pursuant to Section 13(3) of the 1932 Act, as inserted by Section 1 of the 1977 Act, it is not lawful for a member of the Garda to be or become a member of any trade union or of any association other than an association established under the section of which the objects or one of the objects are or is to control or influence the pay, pensions or conditions of service of any police force.

10. I now turn to the events which followed upon the decision of Morris J. and which have given rise to the present proceedings.

11. On the 20th April, 1994 P.J. Stone, the Deputy General Secretary of the GRA, wrote to the Respondent, Kieran McDermott, who was the Secretary of what is known as the Rule 3(d) Standing Committee of the Association. I will return to the terms of this letter in a few moments but before doing so, it is necessary to say something about this 3(d) Standing Committee.

12. In September 1990 the Association amended its rules. The existing Rule 3(d) was deleted and, in lieu thereof, the following was adopted:-

13. The letter which was addressed to the Secretary of the 3(d) Standing Committee was in the following terms:-

14. This letter of complaint was given by Mr. Stone to the fifth-named Respondent, Kieran McDermott. It is alleged by the Applicants that subsequently copies of the letter were posted up on notice boards in Garda Stations in the City of Dublin. As a result of this publication of the contents of the letter, letters were sent by the Applicants' solicitors to both Mr. McDermott and Mr. Stone regarding its publication. These letters were dated the 30th June, 1994 and called for an immediate retraction of the allegations together with proposals for the payment of substantial damages. The letters went on to threaten proceedings against Messrs Stone and McDermott if terms of settlement were not received within fourteen days. It is not necessary for me to further consider this aspect of the matter save to record that the threat of defamation proceedings made by the Applicants in June 1994 was never carried into effect.

15. An emergency meeting of the 3(d) Standing Committee was held on the 20th April, 1994. The second-named Respondent was elected as Chairman. All of the Applicants were present at this meeting save Frank Gunn. The Standing Committee on that occasion decided to hold a further meeting on the 28th April, 1994. All three Applicants allege that they were disbarred from holding office on the Central Executive Committee of the Association pending the hearing of their complaints. Two of them allege that this occurred in April 1994 and the third, namely, Frank Gunn, alleges that this occurred on the 11th May, 1994. The Respondents contend that in fact the Applicants were suspended pending an investigation rather than disbarred. I am of the view that the Respondents' view of events is more correct and that each of the Applicants was suspended from holding office on the Central Executive Committee pending investigation. In any event, little turns on this difference for the purpose of these proceedings.

16. It is common case that in spring and summer of 1994 continuing controversy existed between members of the GRA, some of whom felt that they were not being adequately represented by it. This state of dissent manifested itself most particularly at the annual conference of the GRA held in Galway on the 3rd May, 1994. Subsequent thereto, the Applicants in these proceedings became involved in a rival association to the GRA, known as the Garda Federation. Frank Gunn was elected Chairman of that Federation.

17. The GRA then determined upon a course of action concerning each of the Applicants which is the direct cause of the present proceedings. The course embarked upon by the GRA in respect of each Applicant was broadly the same but not identical. It is therefore necessary to consider what occurred in respect of each Applicant insofar as it is relevant to these proceedings.

18. On the 1st July, 1994 this Applicant was written to by the GRA by Kieran McDermott, who was then the Secretary of the 3(d) Standing Committee. The letter was in the following terms:-

19. The reaction of this Applicant to the receipt of these charges was to resign from the GRA. He did so on the 28th July, 1994. His resignation was acknowledged by the General Secretary of the GRA on the same evening.

20. On the following day, being the day appointed for the hearing of these charges, he attended, together with his solicitor, at the headquarters of the GRA and appeared before the 3(d) Standing Committee. The Committee was informed that as Mr. Ó Gallachoir was no longer a member of the GRA, he would not remain for any hearing which might take place. In addition to imparting this information, it was represented to the Committee that the charges set forth at paragraphs 2 and 3 of the letter of the 1st July, 1994 amounted to an allegation of perjury and that the Committee had no right or jurisdiction to investigate or reach any conclusion in respect of those charges. Having made these representations, both this Applicant and his solicitor withdrew.

21. The Committee proceeded to a hearing in the absence of the Applicant and his solicitor.

22. By letter dated 2nd August, 1994, Mr. Ó Gallachoir was informed of the result of the hearing. The notification is in the following terms:-

23. On the occasion that the 3(d) Committee made these adjudications, the second, third and fourth Respondents were members of the Committee. Each of those Respondents had been called as a witness for the GRA during the course of the Judicial Review proceedings which were heard and determined by Morris J.

24. On the 12th May, 1995 application was made on behalf of this Applicant to Barr J. for leave to commence this Judicial Review. This Applicant's time for making that application was extended by that Judge and he was given leave to apply for an Order of Certiorari in respect of the decision of the 3(d) Standing Committee made on the 29th July, 1994. He was given leave to seek such an Order on the following grounds:-

25. This Applicant also gave evidence in the proceedings which were heard by Morris J. On the 12th August, 1994, he was notified in writing that at a meeting of the 3(d) Standing Committee held on the 25th July, 1994, it was agreed to proceed to an oral hearing to determine certain charges against him. I do not consider it necessary to set out those charges in extenso, as I have done in the case of Mr. Ó Gallachoir, since there is a considerable similarity between them although they are not identical. I can summarise them as follows. It was alleged that Mr. Bane had acted prejudicially to the interests of the GRA and its members in that

26. In addition he was charged that while suspended from holding office in the GRA, he

27. Some of these charges resulted from the letter of P.J. Stone dated 20th April, 1994 whilst others were instigated by the Committee itself.

28. An oral hearing in respect of these complaints was fixed for the 19th September, 1994.

29. On the 15th September, 1994 this Applicant sent a letter to the Secretary of the GRA in which he, inter alia, indicated that he would not attend the hearing on the 19th September lest such attendance be construed as lending an air of legitimacy to that illegal forum.

30. The 3(d) Committee proceeded to determine the charges made against Mr. Bane. On the 19th September, 1994 he was written to and informed that all of the charges made against him had been proven. The most serious penalty which was imposed was expulsion from holding membership of the GRA for ten years. That was imposed in respect of one of the charges. The remaining ten charges were dealt with by penalties of either expulsion from holding membership of the GRA for five years or debarment from holding office in the GRA for five years.

31. Following this notification, this Applicant followed the same course as Mr. Ó Gallachoir and was granted leave to judicially review this determination of the 3(d) Committee on grounds similar to those in Mr. Ó Gallachoir's case save the first.

32. As in the case of Mr. Ó Gallachoir, the 3(d) Committee which adjudicated upon the charges against him included the second, third and fourth-named Respondents, all of whom had been called as witnesses on behalf of the GRA in the proceedings which were heard before Morris J.

33. This Applicant gave oral evidence to Morris J. in the proceedings which were heard by him. On the 9th August, 1994 he received a letter setting out certain charges which he was told would be investigated at an oral hearing of the 3(d) Standing Committee. I do not propose to set forth the contents of this letter in detail. They can be summarised as follows. It was alleged that this Applicant -

34. The oral hearing which was alluded to in the letter of the 9th August, 1994 took place on the 12th September, 1994. At that hearing the 3(d) Standing Committee found all of the charges alleged against Mr. Gunn to be proven and imposed a series of penalties. The most severe penalty was expulsion from holding membership of the GRA for eight years. On other charges expulsion for five years and debarment from holding office in the GRA for five years were imposed.

35. The 3(d) Standing Committee which made this determination against this Applicant had the second, third, fourth and fifth-named Respondents as members of it. The second, third and fourth Respondents had been called as witnesses on behalf of the first Respondent in the proceedings heard by Morris J. This Applicant, in common with the others, contends that it was wholly inappropriate that persons who had given evidence in effect against him during the course of the earlier proceedings should sit to determine whether or not the evidence given by the Applicant in those proceedings was false. He did not attend the hearing of the 12th September, 1994 because he said he did not wish to lend legitimacy to it.

36. Subsequent to receiving the notification dated the 12th September, 1994, this Applicant caused his solicitor to write to the Commissioner of the Garda. The Commissioner initiated an investigation into the allegation of criminal conduct made against this Applicant and his co-Applicants. Subsequently his solicitor was advised that that investigation had concluded with the Director of Public Prosecutions finding no evidence of criminal conduct against this or the other Applicants.

37. In common with the other Applicants leave was sought and obtained by this Applicant to judicially review the decision of the 12th September, 1994. The grounds upon which such leave was granted were the same as those upon which Mr. Ó Gallachoir was given leave save the first.

38. I turn now to a consideration of the legal issues which fall to be determined in these proceedings.

39. At the forefront of their opposition the Respondents contend that the complaints raised by the Applicants in these proceedings are not matters which relate to public law. Consequently, they say that the decisions made by the Respondents which the Applicants seek to quash are not amenable to an Order of Certiorari. They say that the Court has no jurisdiction to review the decisions in these proceedings.

40. It appears to me that a number of those factors are present in the instant case. First, the case involves members of the Garda who play an important role in the community. Secondly, the GRA has its roots in statute. It was established pursuant to the Garda legislation and regulations made thereunder. Furthermore, it is not lawful for a member of the Garda to be or to become a member of any other trade union save one established under the legislation. Under Section 1 of the 1977 Act the GRA must be independent of and unassociated with any body or person outside the Garda. Thirdly, it seems to me that the functions of the GRA and its members come within the public domain of the State. Fourthly, I am of the view that the 3(d) Committee would be obliged to act fairly and in accordance with the principles of natural justice in deciding upon the guilt or innocence of members of the Association and the penalties to be applied in the event of wrongdoing being found against them. A finding against a member might have serious consequences.

41. The views of Denham J. are, as I have already stated, obiter. As such, of course, they are not binding on me. However, they do recommend themselves to me as being appropriate criteria to apply in deciding this issue. I applied them myself in Rafferty & Ors v. Bus Eireann (unreported 21st November, 1996) where, although I dismissed the substantive application, I held that a decision of Bus Eireann to implement a viability plan which had consequences for some of its employees was capable of judicial review.

42. The matter does not rest there, however. More recently the Supreme Court had to address the question again. That was in the case of Walsh v. Irish Red Cross Society where the judgment of the Court was delivered by Blayney J. on the 7th March, 1997. In that case Mr. Walsh had been a member of the Irish Red Cross for thirty-eight years. He had been a member of the governing body of that entity, its Central Council, for fourteen years. In May 1993 an article appeared in the Irish Times which was very critical of the Society. Part of the information on which the article was based had been supplied by Mr. Walsh. It was claimed by the Executive Committee of the Central Council of the Society that Mr. Walsh had given an interview to the journalist who had written the article and that this was contrary to an express direction which had been given to him by the Executive Committee. Mr. Walsh claimed that he had not given any interview but had merely answered certain questions which had been put to him over the telephone by the journalist. Following the publication of the article, the Executive Committee took steps to remove Mr. Walsh from the membership of the Society in exercise of a power given to it by an amended rule which had been adopted by the Central Council on the 27th May, 1993. In October 1993 the Executive Committee resolved that Mr. Walsh be removed from membership. He applied for judicial review. He was successful in the High Court before Geoghegan J. The Society appealed. The first ground of appeal was that the trial Judge had misdirected himself in law in holding that the decisions of the Red Cross were amenable to judicial review. The Supreme Court dismissed the appeal and concluded that the decision was susceptible of judicial review and fell within the public law domain. Blayney J. said:-

43. He went on to examine further Articles contained in the 1939 Order. He concluded that the right to be a member of the Irish Red Cross Society was one which was open to all Irish citizens who paid the appropriate fee. That right was created by Article 5 of the Order. Because of that there was no question of a member entering into any agreement with the Society. A person applying for membership was not making any offer to the Society which became a contract once his application was accepted.

44. In the present case it is clear that membership of the GRA is open to all members of the Garda Siochana who hold the rank of Garda. The entitlement to become a member is entirely dependent upon an applicant for membership holding the public service position of Garda. Once he becomes a member, he joins an Association which was created by statute pursuant to the Acts and Regulations which I have already mentioned. At the time that the GRA was set up every Garda in the force was deemed to be a member of the Association and to be bound by the rules thereof. In these circumstances it is difficult to see how it can be said that the matters in issue in these proceedings fall to be dealt with as a matter of private law. I am of opinion that the GRA is no different in so far as its susceptibility to judicial review is concerned than is the Irish Red Cross Society.

45. I am further fortified in this view by the decision of Finlay C.J. in Beirne v. Commissioner of An Garda Siochana [1993] ILRM 1, whose judgment I followed in Rafferty's case and which was cited with approval by Blayney J. in Walsh's case. Finlay C.J. said in his judgment as follows:-

46. I am of the view that these decisions of the GRA are ones which are ordinarily seen as coming within the public domain. In my opinion, it cannot be said in the present case that the decisions of the GRA which are sought to be impugned arose solely or were exclusively derived from an individual contract made in private law. It is a decision of a body set up by statute dealing with members who by definition are in the public service and whose constitutional right of association is limited to being members of either the GRA or some other body which may be set up pursuant to the statutory provisions.

47. In these circumstances I reject the submission which has been made on behalf of the GRA to the effect that its activities are beyond the reach of judicial review.

48. Although the Applicants were given leave to apply for judicial review on a number of grounds, I propose to deal with this one first. I do so because, in my view, if the Applicants are successful under this heading of claim, they will have established an infirmity in the entirety of the decisions which are sought to be impugned in these proceedings. Whether such infirmity would entitle them to the orders which they seek is of course quite another matter.

49. Two arguments are made under this heading.

50. First, it is submitted that it was highly inappropriate for the 3(d) Standing Committee to have amongst its members on the occasions in question persons who gave evidence in the judicial review heard by Morris J. It is said that this is particularly objectionable in circumstances where the evidence given by such members was in conflict with the evidence given by the Applicants. The second argument under this heading is made on the basis that many of the charges which came before the 3(d) Committee were charges formulated by that Committee itself.

51. The bias alleged in this case is not actual bias. Rather it is said that the facts, which I have already outlined, gave rise to a real likelihood of bias being apprehended. All of the cases on this topic have involved the application by the Court of the well-known principle that it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done. In applying that principle, of course, the Court must not give currency to "the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done" (see R. v. Camborne Justices Ex-parte Pearce [1955] 1 QB 41).

52. The Applicants contend that when faced with the charges levelled against them, they were entitled to be dealt with by a 3(d) Standing Committee in respect of which a reasonable man would apprehend that he would get a fair and independent hearing of the questions to be decided. In O'Neill v. Beaumont Hospital Board [1990] ILRM 419, Finlay C.J., in dealing with the topic of real likelihood or reasonable suspicion of bias, said as follows:-

53. Later in the same judgment he said:-

54. It is clear that the test which has to be applied is an objective one. I must therefore ask myself whether a reasonable man would, in the circumstances outlined here, have a reasonable fear that the Applicants would not have a fair and independent hearing of the issues which arose.

55. In my view a reasonable man would have such a fear.

56. The attempt by the Respondents to stand over this state of affairs may be tested by taking a homely example. Suppose that a member of the judiciary had a dispute with his or her neighbour which resulted in legal proceedings in which both gave evidence. Suppose further that there was a conflict of evidence between them which was resolved in favour of the judge and the neighbour was later prosecuted for giving false evidence to the Court. Would it be appropriate for that criminal trial to be presided over by the judge who gave evidence against his neighbour in the earlier proceedings? I venture to think not. Even if the judge had been a mere witness in the earlier proceedings as distinct from being a party to the suit, he still could not preside over the later trial.

57. In the present case the Committee which decided the fate of the Applicants had present on it a number of the Respondents who had been called as witnesses for the GRA in the earlier High Court proceedings and who had given evidence which clearly controverted that given by the Applicants. Yet it was those very persons who were called upon to adjudicate on charges levelled against the Applicants to the effect that they gave false or misleading evidence to the High Court in those proceedings.

58. I am of the view that a reasonable person would legitimately apprehend that their chance of a fair and independent hearing of the charges was significantly impaired or to use the language of Finlay C.J., did not exist by reason of the presence as adjudicators of the witnesses who had in effect given evidence against them in the trial before Morris J.

59. In addition to denying that the constitution of the 3(d) Committee on the relevant occasions was in any way out of order, the Respondents made a number of other points on this topic which I will consider presently.

60. The first proposition which is put to the Court is that what took place before the 3(d) Committee on the charges relating to the giving of false evidence to the High Court was nothing more than a reiteration of the findings already made by Morris J. in that regard. Consequently it is said the 3(d) Committee, insofar as those charges were concerned, had really no adjudication to perform since it was doing no more than making findings in accordance with the judgment of Morris J. I have carefully read and re-read his judgment. Whilst he was undoubtedly presented with a conflict of testimony and resolved that in favour of the GRA in the findings of fact which he made, nowhere do I find him expressing himself as being of the view that he had been given false testimony by the Applicants. On the balance of probabilities he made findings of fact in favour of the GRA but that is a far cry from holding that the Applicants' testimony was false. Witnesses may frequently give evidence which they genuinely believe to be true but which, as a matter of probability, is rejected by a trial judge when faced with a conflict of evidence. To suggest that in the present case all the 3(d) Committee had to do on the question of guilt concerning the giving of false testimony was to in effect rubber stamp the finding made by Morris J. is, in my view, incorrect. There was no such finding by the trial judge to endorse. Even if I am wrong in this view and the members of the 3(d) Committee were entitled to convict on these charges simply by reference to the findings of Morris J. and therefore did not have to apply their own minds to the question of guilt or innocence, they nonetheless had to deal with the penalty which was to be imposed. I know of no principle in law or logic which would justify a lesser standard of fairness or independence being required of a tribunal determining a question of penalty than would be applicable when deciding a question of guilt. Accordingly, in my view, this argument fails.

61. It was also argued that at the Annual Conference of the GRA in 1991 amendments were made to the procedures to be adhered to by the 3(d) Standing Committee. The effect of those amendments in the present case was that the failure on a member's part to appear in person at a hearing of that Committee was to be interpreted as an acceptance on the part of such member not to contest the charges laid. Counsel for the Applicants indicated that his clients were unaware of the existence of this change. As a result this hearing had to be adjourned so as to enable evidence to be filed on the topic. Having considered it, I am of the view that it is not necessary for me to make a finding as to whether such changes were efficaciously brought about or made known to the Applicants. Even if they were and even if such changes had the effect argued for, there still remained the question of penalty which had to be dealt with and, as I have already stated, no lesser standard of fairness or independence could be permitted on the question of penalty than on the issue of guilt. Accordingly, this argument also fails.

62. Whilst I have dealt only with the charges which relate to the giving of false evidence, it is clear that they were dealt with at the same hearing as all the other charges levied against each of the individual Applicants. It might be argued that the claim of perceived bias might be referable only to those charges and as a consequence no legitimate criticism could be made of the 3(d) Committee as constituted on the occasions in question when dealing with the other charges. However, as all charges were dealt with together, it appears to me that the perceived bias which I have found to exist infected the whole of the hearing since all the charges were dealt with together.

63. In these circumstances I hold that the Applicants had made out a case which satisfies me that the hearings in each of their cases were infirm by reason of perceived bias. Before departing from this aspect of the case, I should make two further observations. In the case of these Applicants there was not, in my view, any necessity for the members of the Central Executive Committee who had given evidence in the original proceedings before Morris J. to sit upon the 3(d) Committee on the occasion in question. That Committee could have been constituted by persons other than those who had given evidence in the earlier proceedings. I do not know why such was not done in the present cases. Secondly, it is quite clear that there has been much bitterness and distrust between the parties to this litigation. Even when the case concluded before me last month, it was apparent that little or no improvement in attitude had occurred. That was so notwithstanding an earlier adjournment having been granted to see if an accommodation could be reached between the parties having regard to developments which were taking place on the whole topic of Garda representation. Given the very fraught atmosphere existing between the parties, it appears to me that the Respondents should have been particularly concerned to ensure that the 3(d) Committee constituted to adjudicate on the charges which had been made against the Applicants should have been independent, fair and be seen to be so. In my view the inclusion on it of the persons who gave evidence against the Applicants in the earlier litigation meant that that standard was not achieved.

64. I am also of opinion that the Applicants are correct in the second criticism that they make of the 3(d) Committee. Many of the charges levied against the Applicants were "instigated by" the Committee itself. In my view this was inappropriate. In this regard see O'Donoghue v. Veterinary Council [1975] I.R. 398; Heneghan v. Western Regional Fisheries Board [1986] ILRM 225 and Turner v. Pilotage Committee of Dublin Pilotage Authority (Barron J., 14th June, 1988). In the circumstances of this case it was undesirable that the 3(d) Committee should have instigated charges to be adjudicated on by itself.

65. For these reasons the adjudications of the 3(d) Committee were vitiated.

66. In these circumstances it is not necessary for me to deal with the other grounds advanced on behalf of the Applicants.

67. The fact that I have so far found for the Applicants does not mean that it automatically follows that Orders of Certiorari will be issued in their favour. I turn now to consider whether such orders should be made or not.

68. Public law remedies are, just like the declaration and injunction, discretionary remedies. The discretion of the Court has to be exercised judicially and judiciously. The history of the remedy of Certiorari is set forth in the judgment of O'Higgins C.J. in The State (Abenglen Properties Limited) v. Dublin Corporation [1982] ILRM 590 at 596. The Chief Justice there concluded the paragraph dealing with the history of Certiorari by the following. He said:-

69. His view as to the discretionary nature of the remedy of Certiorari was expressly supported by the judgment of Henchy J. in the same case.

70. In the present case the Respondents say that Orders of Certiorari should be withheld because of certain behaviour on the part of the Applicants which, it is alleged, disentitle them to the relief. I will consider each of the complaints made by the Respondents in this regard.

71. The decisions which are sought to be quashed in these proceedings were made in September 1994. Yet application was not made for relief by way of Judicial Review until May of 1995. That was some eight months after the event. Order 84 rule 21 of the Rules of the Superior Courts provides:-

72. In each case when granting leave, Barr J. extended the Applicant's time for making the application. Those Orders were made ex parte and the extension of time granted on that basis is not determinative of the issue. It has to be considered afresh by the trial judge if and when raised by the Respondents. It was raised by the Respondents in the present case. Having considered the evidence, I am satisfied that all of the Applicants have established good reason for extending the period within which the application could be entertained by the Court. I have come to that conclusion having regard in particular to the evidence which was given concerning the intervention of the Minister for Justice. It is hardly surprising that the Minister must have had a great concern at the developments which were taking place in 1994. The evidence is that in September 1994 the Minister requested that all matters in dispute between the GRA and the Garda Federation set up by, inter alia, the Applicants be suspended pending the outcome of attempted mediation by a Mr. Mulvey of the Labour Relations Commission. Mr. Mulvey made his recommendations in November 1994 and these were the subject of protracted meetings held by the Minister with the various interested parties in an attempt to resolve all matters satisfactorily. I accept that in deference to the ministerial request, the Applicants held off the making of these applications. The tragedy is that the rift has not been resolved to the present day. However, I am satisfied that in the circumstances the Applicants cannot be the subject of legitimate criticism for acceding to the ministerial request and holding their hand concerning these proceedings until the month of May 1995. Accordingly, I do not accept that they are precluded because of delay in the institution of the proceedings from obtaining the Orders which they seek.

73. The Respondents contend that the Applicants have disentitled themselves to an Order of Certiorari by not attending at the hearing in question and by not appealing its decision. As to the first of these complaints, it seems to me that the Applicants made their position perfectly plain to the 3(d) Committee. Having so done, I do not believe that there was any obligation upon them to attend before it. It was then a matter entirely for the 3(d) Committee as to whether or not it would proceed as it did. These Applicants did not behave as did the applicants in Corrigan v. The Irish Land Commission [1977] IR 317. There the applicants appeared before the relevant tribunal and only after it had given a decision adverse to them, raised the complaint of disqualification. Henchy J. at page 326 said:-

74. In the present case the Applicants did not appear before the Tribunal whose decision they now impugn. I do not think that by so doing they disentitle themselves to this discretionary relief.

75. True it is that there is an internal appeal mechanism provided for in the rules of the GRA. Does the failure of the Applicants to exercise that right of appeal debar them from this remedy? There may well be cases where a lack of natural justice in the tribunal of first instance might be cured by a sufficiency of natural justice in the appellate tribunal but I do not believe this to be one of them. I am of the view that the relationship between the parties was so soured that the failure on the part of the Applicants to exercise their right of internal appeal was not conduct such as would debar them from obtaining an Order of Certiorari.

76. It is said that it would now be inappropriate to grant an Order of Certiorari to the Applicants for the following reasons. First, they have departed from the GRA and have no intention of ever rejoining. The question is, therefore, one of academic interest. Secondly, if they feel aggrieved, it is said, they ought to sue in defamation as they originally threatened. They did not carry out that threat but chose instead to bring these proceedings which, by their very nature, cannot make determinations on the merits of the case.

77. I can deal with both of these points quite shortly. First, even though the Applicants are no longer members of the GRA, the fact remains that the record of that Association contains findings of guilt concerning serious misconduct on their part. Even though they may have no intention of ever again becoming involved in membership of the GRA, that mark remains against them. It appears to me, taking the view of McCarthy J. in State (Furey) v. Minister for Defence [1988] ILRM 89, that that is sufficient to ground this application. Whether the GRA did in fact have any jurisdiction to find as it did in respect of any Applicant who resigned prior to the 3(d) Committee adjudication is an issue which need not be resolved. The fact is that the finding is there and remains on the record unless quashed. Secondly, I am of the view that in a case where a number of remedies are open to applicants to vindicate their rights, they are entitled to choose the one which best suits them. In the present case it appears to me the Applicants were entitled to pursue this rather than the defamation remedy if they felt it the most appropriate way to vindicate their name. By so doing of course they have had to steer between the Scylla of stricter time limits and the Charybdis of availability and entitlement to remedy which would not have affected them to anything like the same extent in a defamation action. In my view they have successfully navigated that course and I cannot see any reason why they should be refused the remedy they seek.

78. In the event I have come to the conclusion that the Applicants are entitled to the reliefs which they seek. I therefore propose to make Orders of Certiorari quashing the determinations of the 3(d) Committee which are impugned.

79. In the circumstances this is not, in my opinion, an appropriate case in which to exercise the power conferred by Order 84 Rule 26(4) of the Rules of the Superior Courts.. Accordingly Certiorari will issue but the charges will not be remitted to the 3(d) Committee for further consideration.

80. In conclusion I can only hope that developments elsewhere will bring an end to the unhappy situation which has obtained concerning the GRA over the last number of years. It is time for attention to be returned to providing an effective representation for the legitimate rights and concerns of the general body of police officers rather than having it deflected towards a continuation of internecine strife.