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Cite as: [2002] IEHC 35
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Farrell v. Teachers' Union of Ireland [2002] IEHC 35 (22 January 2002)
    THE HIGH COURT
    JUDICIAL REVIEW
    Record No. 385 JR/2001
    BETWEEN
    THOMAS ANTHONY FARRELL AND DANIEL J. DILLON
    APPLICANTS
    AND
    THE TEACHER’S UNION OF IRELAND
    RESPONDENT
    AND
    BILLY FITZPATRICK
    NOTICE PARTY
    JUDGMENT delivered by Mr. Justice William M. McKechnie on the 22nd day of January 2002
    1. On the 17th day of April, 2001, at Bundoran in Co. Donegal, the Teachers’ Union of Ireland (T.U.I.) held a special congress at which both the Applicants attended as duly nominated delegates from their respective branches of that Union. The said Congress, as convened by the Executive Committee was called for the substantive purpose of debating two Motions and two amendments. This was done, but in addition a further amendment, now in dispute, was also considered. Following a vote, delegates purported to pass Motion No. 2 as so amended from the floor of Congress. Being of the view that the rules of the Union had not been complied with, the Applicants, in their personal capacity, applied for and obtained from this Court, on the 12th day of June 2001, leave to seek by way of an application for judicial review, an Order of Certiorari quashing the decision of Congress in respect of this said Motion No. 2 as amended. This judgment therefore deals with this challenge.
    2. This application, as is normal, was heard on affidavit with several such Documents having being sworn by and on behalf of all parties including Mr. Fitzpatrick, who by order of this Court was joined as a Notice Party, he being the person identifiable from and affected by the impugned decision of Congress. A Statement of Opposition was filed by both the Respondent and the Notice Party. Therefrom, the following would appear to be the material facts and circumstances most relevant to the issues which require consideration by this Court.
    3. Before outlining such facts however, it should be noted that in both Statements of Opposition, a number as what might be described as “technical defences” have been raised. These include an allegation that the procedure by way of judicial review, and in the process the seeking of an Order of Certiorari, is not available as the within proceedings raise no question of Administrative or Public law, and secondly, it is claimed that the Applicants lack sufficient standing to challenge the aforesaid decision of Congress. At the commencement of this case however, Counsel on behalf of both the Respondent and the Notice Party, whilst asserting that the correct procedure should have been by way of plenary proceedings, nevertheless indicated, that because of their respective clients’ desire to have the issues in dispute resolved by this Court, they would not be relying on either of the aforesaid points. Accordingly, in order to facilitate the onward movement of this matter I agreed that the case could proceed before me as a Judicial Review Proceeding. However, it should be clearly understood that in so doing, this Court, quite evidently, is not in any way endorsing this practice as a permissible procedure when dealing with disputes of the type which arises in this case.
    4. The Constitution of the T.U.I. as outlined in the “Rule Book”, is set forth in the format of Sections and in all contains about 147 rules. The structure of this Union includes an Annual Congress, provision for a Special Congress and an Executive Committee, with the Annual Congress being the governing body of the Union. Section G(i), which covers Rules 12 to 24 inclusive, is headed “ANNUAL CONGRESS”, which Congress must be held during Easter Week of each year. Rule 17 reads as follows:-
    “17(i) All motions of Branches, the Executive Committee or the Security Fund Committee shall be submitted to the General Secretary twelve (12) weeks before Easter. The motions will then be submitted to the Standing Orders Committee for co-ordination where possible.
    (ii) Any motions and/or amendments deemed by the General Secretary or the Executive Committee not to be in conformity with any existing section of the Rule Book shall be sent back to the branch with advice as to how it should be amended.”
    The Executive Committee, which is responsible for the preparation of the Congress Agenda, must issue to each nominated representative, at least nine weeks before the opening of Congress, a Preliminary Agenda which shall contain motions to be submitted to Congress, (Rule 19). Any suggested amendments to the motions appearing on this Preliminary Agenda may be submitted to the General Secretary not later than seven weeks prior to commencement, (Rule 20). A Final Agenda is then sent to Delegates, Branch Secretaries and School/College Representatives at least twenty-one days prior to the opening of Congress, which Agenda, in addition to the matters in the Preliminary Agenda, must contain, inter alia, all permissible amendments to the motions on that Agenda, (See Rule 23).
    5. Section G(ii), which is headed “SPECIAL CONGRESS”, contains Rules 25 to 29 inclusive. Such a Congress may be called either by the Executive Committee at any time or as a result of a requisition received from not less than a specified number of branches. At least eight weeks notice must be given for the convening of such a Congress. This notice must state the purpose for which it is called and must specify the motion or motions intended for its consideration. Amendments to such a motion or motions, as the case may be, must be submitted to the General Secretary four weeks before the date of Congress. A Final Agenda is then sent to the Delegates and Branch Secretaries at least ten days prior to the opening of Congress. Rules 26 and 28 of this Section which are of particular relevance to this case are in the terms following:-
    “26. The Final Agenda for the Special Congress shall be the motion or motions of the callers together with amendments.
    28. A Special Congress shall, in regard to the business for which it is called, be vested with the same power at Annual Congress and shall be constituted in accordance with Rule 13.”
    6. Rules 31 and 32, contained in Section H, are directly in question. These read as follows:-
    Rule 31;
    “The Standing Orders Committee shall -
    (a) ........
    (b) .........
    (c) .........
    (d) Decide what motions, not on the Order of Business, shall be brought before Congress: except that any motion which does not appear on the Agenda, proposing to dispose of Union funds shall not be considered by Congress until an adjournment of Congress of at least half an hour takes place subsequent to its being admitted for discussion and before its being discussed.”
    7. Rule 32:
    “Congress shall be conducted in accordance with the following Standing Orders:-
    “(xi) The ruling of the Chairperson on all points of order or on the adopted order of business shall be final, unless the ruling is challenged. The challenger shall have the right to give reasons for challenging the ruling and the Chairperson shall briefly reply. The challenge shall be successful if not fewer than two-thirds of the members of Congress present and voting support it.
    (xii) .......
    (xiii) Any motion to suspend the order of business shall not be successful unless supported by not fewer than two-thirds of the members of Congress present and voting.”
    8. It is also necessary to recite Rules 65 and 67 which are in the following terms:-
    “65 The General Secretary may engage such officials, clerical or other assistance as may be approved by the Executive Committee and shall exercise control over such staff.
    67. Whenever the office of General Secretary or other General Officers is vacant the Executive Committee shall invite applications for the post by means of advertisements in at least two issues of three morning daily papers published in Ireland. The Executive Committee shall set up an interview board which shall make recommendations to the Executive. The candidate selected shall be ratified by Congress.”
    And finally under Rule 141, no existing rule can be altered, amended or rescinded unless a proposal therefor, having appeared on the final Agenda, receives the support of not less than two-thirds of the branch delegates to Congress being those present and voting.
    9. Having decided to convene a Special Congress under Rule 25(a), the Executive Committee when giving notice thereof, indicated that the purpose of such a conference was to debate two motions, the first of which read “That Congress shall ratify the appointment of the Education/Research Officer” with the second being “That Congress considers that the appointment process and procedures within T.U.I. be reviewed”. In response to this notice, given under Rule 27 of the Rules, fourteen proposed amendments from five different branches were received. Five of these suggested amendments were in relation to Motion No. 1 with the balance being referable to Motion No. 2. All of the amendments to Motion No. 1 were declared “Out of Order”. Amendments No’s 1 and 2, received from Tipperary South Riding and County Donegal respectively, in relation to Motion No. 2, were declared “In Order”, with the other seven amendments being declared “Out of Order”. In the category last mentioned was one such amendment, namely No. 5, which was received from Dublin Colleges Branch and which is at the core of the dispute in this case.
    10. The final documentation for this Special Congress, which was sent out to the relevant delegates and branches, consisted of the following:-
    (a) A cover sheet headed “Special Congress - Head Office Appointments and Procedures - Tuesday, 17th April 2001.” Under this, a recommended order of business in alternative form was printed with the option being necessary as a decision was awaited on the clarification hereinafter mentioned,
    (b) Standing Order Report No. 1 consisting of two pages,
    (c) Clarification from the Executive Committee on whether Rule 65 or 67 applied to Motion No. 1 and,
    (d) A document, essentially headed “Motions”, which having listed Motion No. 1, then sets out the five suggested amendments received in respect thereof, indicating, directly opposite the identity of the branch from which each such amendment was received, the words “(Out of Order)”. Motion No. 2 and all amendments received to that motion were then listed in the same manner save that amendments No.’s 1 and 2 did not have, whilst all others, including No. 5 did have, the designation “Out of Order” presented directly opposite the name of the submitting Branch. This meant that No.’s 1 and 2 were in Order but that all others were out of order.
    11. The Special Congress, having opened, commenced with a consideration of Standing Orders Report No. 1. The first item of this report sought from the Executive Committee the clarification above mentioned, that is, whether in relation to Motion No. 1, Rule 65 or 67 applied. If the clarification favoured Rule 65, then the order of business - “B” would apply whereas, if it favoured Rule 67 then the order of business “A” would apply. In accordance with the written clarification, previously sent as part of the final documentation, the Executive Committee’s clear view, as expressed, was that Rule 67 should apply to the appointment of the Education/Research Officer which was the subject matter of Motion No. 1. Hence order of business “A”.
    12. At or about this time the status of amendment No. 5 to Motion No 2, was raised either by way of a challenge to Standing Order Report No. 1 or otherwise, it being most likely in the context of the former, though whether correctly is debatable given that this Report, in itself, did not put the amendments in issue. In any event the chairperson of the Standing Orders Committee (S.O.C.) then explained the reasons for the decision previously taken to rule out of order this said amendment. The Chairman of the Congress, who at that time was Mr. MacGabhann the then President of the T.U.I., then expressed his agreement with the views of the S.O.C., namely, inter alia that amendment No. 5 was out of order. Notwithstanding, a proposal was next made to amend the Standing Orders Report so as to have declared in order this said amendment No. 5. Though some confusion exists as to the number of persons who voted in favour of this amendment, I am satisfied that one must proceed on the basis that it was carried by a simple majority, there being no sufficient evidence to suggest that a two-thirds majority existed for its reinstatement. Congress, having agreed to accept amendment No. 1 from Tipperary South Riding but having declined to accept amendment No. 2 from Co. Donegal then went on to consider the Motion, as amended, by amendments Nos. 1 and 5. This composite proposal was then by majority accepted by Congress.
    13. The wording of the original Motion No. 2, with amendment, No. 1 set forth in paragraph (a), and amendment No. 5 set forth in paragraph (b), reads as follows:-
    “That Congress considers that the appointment process and procedures within the T.U.I. be reviewed -
    (a) and instructs the Executive Committee to instigate, as a matter of urgency, a new and transparent interview and job filling process, the results to be brought to Congress for ratification.
    (b) Congress is concerned at the processes and procedures used in the recent appointment of Education/Research Officer and the events surrounding it. Congress decides that an immediate remedy be applied to rectify the unjust situation that has arisen with regard to the previous acting ERO who served for nearly two and a half years. By way of compromise, Congress instructs the Executive Committee to approve an additional Officer post in TUI Head Office, and, in line with T.U.I. policy on job conversions, instruct the Executive Committee to engage the previous acting ERO as this officer with duties appropriate to his experience and expertise and to the needs of the Union”.
    14. Arising from the foregoing a number of issues arise for consideration. The first is whether, the incorporation of amendment No. 5 as part of the Motion No. 2 was contrary to Rule 28 in that it is alleged that the business for which the Special Congress was called was to debate Motion No. 1 without amendments, and Motion No. 2 with the “in order amendments”, Nos. 1 and 2, only, it being clear that the “out of order” amendments, including No. 5, formed no part of the meeting’s business. Secondly, whether in agreeing with the views of the Chair of the S.O.C., that amendment No. 5 was “out of order”, the chairman of the Congress was in effect, making a ruling under Rule 32 (xi) of the Rules which, if he was, could not be successfully reversed unless not less than two-thirds of the members present, voted in support of such a challenge. Thirdly, whether Rule 31(d) applied to the Motion as put, and if so what consequences follow from, that rules non-observance, it being agreed that no such adjournment, as therein mentioned, took place, and finally, whether as an entirely separate ground, the motion as passed was invalid in that, in a fundamental way it failed to comply with the terms of Rule 67 of the T.U.I.’s Constitution.
    15. As appears from Rules 9 and 12, the structure of the T.U.I. includes, not only an Annual Congress which, is the Supreme body of the Union, but also a Special Congress. Annual Congress, which, as with a great number of like bodies, must be held each year at a given time, has the power and authority to deal with virtually all matters which are of concern or interest to the members of the Union. There is a certainty about its holding, a focus in its presence and a capacity in its competence which enables it to act as a platform upon which all issues, whether of particular or general interest, whether of policy or principle or whether of tactics or strategy, can be raised, so that the members and the Executive, and thus the Union itself, can make binding decisions affecting all those who make up its membership and for whom it duly exists. Special Congress however is quite different. It is, as its name suggests, special, in that it is called or convened not to deal with the general business of the Union, but rather with a matter or item of particular importance, significance or urgency. And so its scope is in this way determined and accordingly, its deliberations must as a result, be confined to what is described as “the business for which it is called”. This in my view is quite clear from Rules 26 and 28 which have the specific objective of identifying the remit of the particular business, as disclosed in the Final Agenda, which is proposed for such conference. The question therefore is what was the business of this particular Special Congress?
    16. There is no doubt but that the Executive Council, when convening this Congress intended that two and only two motions should be considered by it. These motions in their original format are set out at paragraph 9 above. In accordance with Rule 27 however, branches are undoubtedly entitled to submit amendments to such motions and may do so within the time specified in that Rule. On receipt of such amendments the General Secretary and/or the Executive Committee, generally if not always on the advice of the S.O.C. considers whether or not such amendments are “in order”. By this I mean are in conformity with the Rule Book and are amendments properly so called, which if they are must then be accepted, with the delegates having the resulting right to debate such amendments in the context of the motion to which these respectively have been proposed. It is somewhat unclear as to whether, for the purpose of a Special Congress, this process of consideration takes place under Rule 17(ii) and Rule 23 on the one hand or whether it is inherent from Rules 26 and 27 on the other. Whichever, Rule 26 is quite definite in that the Final Agenda consists of the “motion or motions of the callers together with amendments”. This is confirmed in the final section of Rule 27. So the business of a Special Congress, without more, is the motion or motions together with the duly accepted amendments which are contained in the said Final Agenda.
    17. On behalf of the Notice Party it is suggested that because the “out of order” amendments, which of course includes Amendment No. 5, were printed on the Final Agenda then by virtue of that fact in itself, all such amendments became part of the business of and could thus be debated by the special conference. I cannot agree with this submission. In my view it would constitute a serious affront to common-sense and to any orderly running of business, if the reference to “amendments” in Rules 26 and 27, included amendments, which prior to the issue of the Final Agenda had been ruled “out of order” and which on that Agenda has been so classified. Such a result would effectively mean that “out of order” amendments were to be treated in exactly the same way and were to have conferred on them exactly the same standing as the “in order” amendments. Logically in my view the same would then have to apply to Motions. If this were so, then with such a system, neither the General Secretary or the Executive Committee or the S.O.C. would have any real function in considering the received motions or amendments prior to the Final Agenda. They would have to place all such proposals on that Agenda and so by such a process would enable all such motions and amendments to be placed before Congress. This is not my interpretation of the relevant rules and indeed that is not a construction which the Respondent, in this case, seeks to place on them. Rather it seems to me that the explanation given for this practice of listing, namely to inform delegates as to what had become of their submitted amendments, is far more likely to be correct and far more likely to accord with the true meaning of the Rules, rather than to support the submission of the Notice Party. In addition it is my opinion that if this submission was correct, Branches when considering the Final Agenda would have to debate and take a position on, the “out of order” amendments and at least would have to consider nominating a person to represent its views on them. This would be most anomalous and would be quite contrary to recognised practice. I would therefore conclude that all of the amendments, previously declared “out of order”, were not on the Agenda for the purposes of having them placed for debate before Congress and accordingly were not part of the “business for which” this said Special Congress was called. As it is conceded that there is no other rule or mechanism by which “out of order” amendments can properly be placed before a Special Congress for debate thereat, then in my view it must follow that as a result of Rule 28 Congress had no power to discuss amendment No. 5 to Motion 2, and in consequence the resulting motion as passed is invalid and of no effect.
    18. On behalf of Mr Fitzpatrick it is submitted that this Court should not embark upon any process which would lead to Motion No. 2 being declared invalid under Rule 28. He does so on the basis that the grounds upon which relief was granted do not specifically refer to Rule 28. Grounds E(i) and (ii) of the Statement grounding the application are as follows:-
    “E(i) The Respondent failed to apply the rules of the Union in the proceedings immediately before the taking of the decision at (i) above, in particular Rule 32(xi) and Rule 31(d),
    (ii) The decision purportedly taken by Congress is in breach of the rules of the Union specifically Rule 65 and Rule 67.”
    Whilst it is true to say that Rule 28 is not specifically mentioned in either of these grounds, nevertheless it appears to me that the Applicants, who moved these proceedings in person, were relying upon the Rule Book of the Union as an entity. This follows I feel not only from the general references to the rules of the Union but also from the use of the words “in particular” and “specifically” which immediately precede the identity of the specific rules referred to. In addition there is no question of the Respondent or Notice Party not being fully aware of the Applicants intention to rely upon Rule 28, as an argument to underpin the submissions made and the relief's sought, as this Rule by its No. is specifically mentioned in Mr. Farrell’s affidavit dated the 16th July 2001. Consequently, I would not withhold the granting of relief on this ground.
    19. The second point of the Applicant’s challenge rests upon Rule 32(xi) of the Union’s Constitution. In his affidavit, the said Mr. John MacGabhann, agrees, that verbally he supported the ruling of the S.O.C. that amendment No. 5 was out of order, but alleges that he had not formally ruled as such when the proposal was made to amend Standing Orders Report No. 1. He claims that the order of business had not, at that point, been adopted and accordingly felt entitled to treat the proposal as a straight forward amendment to the report which in his view required a simple majority only. In paragraph 9 of the affidavit sworn on the 13th November 2001 he avers “I say that I consider that my function as Chair was to facilitate deliberation of the substantive issues identified by the Executive Committee on the one hand and by the Branches that supported the requisition on the other. The proposal to amend Standing Orders Report was supported by a majority of the delegates present and voting”. In my view Mr. MacGabhann was mistaken in what he considered to be his function at this Special Congress. It was not as claimed by him to facilitate a wide-ranging debate on the issues of concern to the Executive Committee and the issues of concern to the Branches. These issues, it should be said, arise out of what had been referred to as the “Billy Fitzpatrick’s situation”. This situation has a history of some duration, intensity and conflict within the Union. It gave rise to the report of Mr Brian O’Moore SC. dated the 29th March 2001. It was undoubtedly an area of serious concern to the Union with a significant divergence of views within it. This is confirmed by Alice Prendergast in her affidavit when she says: “I say further that the business of the Special Congress was in effect, and in the minds of the delegates, both for and against, the business of Billy Fitzpatrick and whether or not he would get a job with the Respondent”. That may well be the case but the mechanism put in place, pursuant to the Union’s rules for the calling of and for the business of a Special Conference, did not confer such an extensive licence on the delegates thereat. Whilst the Chairman was undoubtedly prompted by the feeling as described and whilst he may well have been driven by a desire of accommodation and compromise, nevertheless, though bona fide held, I cannot in law agree that his function was as envisaged by him. His true role was to conduct the business of the Special Conference and nothing else. I therefore believe that his permitted role conflicted with his overriding resolve to compromise, if possible the Billy Fitzpatrick situation and whilst one can readily understand his concerns, nonetheless in a legal context the rules must be interpreted and their meaning applied.
    20. On whether the manner of his agreement with the Chair of the S.O.C. that Motion No. 5 was out of order, constituted a formal declaration within Rule 32(xi) is difficult to say, but I rather feel that his subsequent interpretation of these actions may well be coloured by the role which he felt he ought to have played at Congress. Whilst it is not possible to make a definitive ruling on the factual matters underlying this point, given that the case proceeded on affidavit, nonetheless I would be inclined to the view that the expression of the Chairperson could well have amounted to such a ruling, which if this was so, would have required at least a two-thirds vote of congress to uphold any challenge to it.
    21. The third issue concerns the applicability of Rule 31(d) which is to the effect that a motion, not on the order of business, but nonetheless brought before Congress, being one which purports to dispose of Union funds, cannot be considered until Congress has adjourned for at least half an hour subsequent to that motion being admitted for discussion. Strictly speaking, given my views on the first ground of complaint decided in this judgment, it is not necessary to consider Rule 31(d). However, could I say that I cannot see any reason as to why, in the circumstances covered by it, this Rule would not have to be followed. The fact that previously this has not been formally done, is at best inconclusive and most likely irrelevant. The fact that Mr. MacGabhann did not regard it as applicable is not readily understandable in the absence of some explanation for this view. It seems to me that the presence and operation of this Rule is beneficial in that the delegates at congress can reflect before committing their Union to an expenditure of money on a proposal not previously advised to them. This view is fully in accordance with the opinion of a Working Party, under the Chairmanship of Mr. Edmund Riordan which reported in 1998, and indeed also with the views of Congress itself, which gave effect to this opinion at its Annual Meetings in 1998 and 1999.
    22. The final ground of challenge is based on Rule 67. It will be recalled, that the motion as passed by Congress, instructed the Executive Committee to approve an additional Officer Post in the Union’s head office and to engage Mr. Fitzpatrick to fill that post. In defending this Motion the Notice Party claims that Rule 65 rather than Rule 67 applies to the position in question. This clearly is not the case and is not the view of the T.U.I. itself. In the Executive Committee’s Clarification, before Special Congress, it is stated
    “the Executive Committee is clarifying that the appointment to Education Research Officer is under Rule 67. It further takes the view that appointment to all posts official within the T.U.I. is similarly under Rule 67. The Executive Committee does not believe that it is appropriate that the General Secretary acting alone would engage an official of the Union and such is the understanding of Rule 67.
    All posts of official with the T.U.I. are publicly advertised in accordance with Rule 67. They are interviewed by an Interview Board as set up by the Executive Committee from time to time. The appointment is made by the Executive Committee and it is a matter for Congress to ratify such appointment.”
    This clarification is one I respectfully agree with. It is the only possible interpretation of Rules 65 and 67 read either separately or together. Moreover once a post is created but not filled it is vacant. As a result the officer post referred to in the motion is one which Rule 67 applies, which means that the procedures therein specified have to be complied with. As a result such a post must be advertised, the Executive Committee must set up an Interview Board, that Board must make recommendations to that Committee, and that Committee then selects a candidate. Congress’ role is to ratify, if it sees fit, that selected candidate. Clearly and evidently none of these procedures were adhered to in this instance. For this reason alone, even if I were to hold against the applicants on all of the other grounds advanced, I would conclude and so determine that the motion as passed was invalid.
    23. Notwithstanding my decision on the substantive points, it is claimed by Mr. Fitzpatrick that since the Applicants did not speak against amendment No. 5 the relief's sought should be refused. I do not agree with this view. The Applicants were in attendance at Congress in a capacity different from that which existed on the making of this application. Secondly their respective Branches operate a system of designation which means that a delegate can only represent the views of his Branch and then only on the Motion or amendment allocated to him. Being of the opinion that the impugned amendment was not on the Agenda for debate, that element of Motion No. 2 was never even discussed at Branch level. Therefore neither person had any authority to speak on it. As a result their failure to express opposition is no bar to relief.
    24. The conclusion therefore is, I would grant, not an Order of Certiorari, but in its place a Declaration that Motion No. 2 as amended, and as purportedly passed by the Special Congress on the 17th April 2001 is null and void and of no effect.

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