Supreme Court dismisses appeal where inordinate and inexcusable delay renders proceedings an abuse of process.

THE SUPREME COURT

Keane C.J.

Murphy J.

Hardiman J.

342/98

BETWEEN

ROBERT McGREGOR & SONS (IRELAND) LIMITED AND ROBERT McGREGOR

APPLICANTS

AND

THE MINING BOARD, IRELAND, THE MINISTER FOR ENERGY AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT delivered the 26th day of April, 2002 by Keane C.J.

This is an appeal from a judgment and order of the High Court (Carroll J) on the 5th October 1998 staying the applicants’

application to the High Court. The court had on the 11th December 1995 ordered the following preliminary issue to be tried

between the second, third and fourth named respondents and the applicants, i.e.,

“whether the plaintiff’s application to court pursuant to s.15(4) of the Mineral Development Act 1979 should be stayed by

virtue of the alleged inordinate and inexcusable delay or alternatively the plaintiff’s application constitutes (sic) an abuse

of process by reason of the delay of the plaintiffs to institute these proceedings.”

The background to the case is as follows. The second named applicant (who has died since the proceedings were instituted)

was a director and major shareholder in the first named applicant (hereafter “the company”). It was incorporated in October

1960 and acquired portions of land in Counties Laois, Carlow and Kilkenny with a view to drilling for minerals. It also acquired

various easements, leases of land and/or mining rights over other properties and had also been granted mining rights in certain

properties by the second named respondent (hereafter “the Minister”). The company began to engage in open cast mining, but

it is not in dispute that, at the time of the enactment of the Minerals Development Act 1979 (hereafter “the 1979 Act”)) the

company was not engaged in the exploitation of all the lands which it had either acquired or in respect of which it owned the

mining rights.

The significance of these lands or other mining rights not being exploited by the company at the coming into force of that

enactment is that, under Part II, the exclusive right of working minerals was vested in the Minister, unless on the 15th

December 1978,

“a person was lawfully working or developing a mine of such minerals.”

It will be necessary at a later point to refer in more detail to the provisions of Part II: at this point, it is sufficient to note that,

under s.15, a person who was entitled to a right of working minerals and who claimed to have been “lawfully working or

developing the minerals at the relevant date”, could apply to the first named respondents (hereafter “the Board”) for the

registration of the minerals as “excepted minerals”. Section 15(4) then provides that

“a person whose application is rejected by [the Board] shall have the right to apply to the High Court for an order

directing the Board to register the minerals as excepted minerals and if the court is satisfied that, by virtue of s.14, the

minerals are excepted from the application of s.12 the court may direct the Board to register them accordingly.”

On the 25th April 1980, the company applied to the Board for the registration of minerals described in the application as

excepted minerals under Part II of the 1979 Act. On the 20th February 1984, the Board issued the following determination of

the application:

“[the Board]....

FINDS:

Coolbawn: that the application in respect of part of this townland has been withdrawn and that no satisfactory evidence

has been submitted to it to show that minerals were being lawfully worked or developed in the remainder at the 15th

December 1978;

Aghamucky, Crutt, Kiltown, Moyhora: that no satisfactory evidence has been submitted to it to show that minerals were

being lawfully worked or developed in these areas at the 15th December 1978;

AND REJECTS the application for registration of the minerals as excepted from the application of section 12 of [the 1979

Act];

THE REASON for the decision of [the Board] is that no satisfactory evidence has been submitted to the Board to support

the application for the registration of the minerals as excepted minerals.”

Following that decision, the applicants’ legal representatives indicated that they would be lodging an appeal. That not having

been done by mid-1985, the Minister informed the applicants by a letter dated 27th May 1985 that, in view of the Board’s

decision, the right to work the minerals in specified townlands was vested in the Minister. There followed correspondence and

discussions between the applicants, their solicitors and officials of the Minister. It would seem that at this stage the applicants

were continuing with some mining operations which, in the view of the Minister, were in breach of the relevant legislation. In an

acerbic response, the applicants’ solicitors characterised the Minister’s alleged concern as “idiotic” since, as they claimed, the

applicants had been mining coal for the last 30 years on the Leinster coalfield “by right and authority”.

There followed protracted, desultory and inconclusive discussions between the parties into which it is unnecessary to go in any

detail. It is sufficient to say that they included a proposal to grant a mining lease in respect of some of the areas concerned

and that on the 11th January 1988 a draft lease was forwarded by the Minister to the applicants. There appear to have been

no further developments, however, until the 25th October 1991, when the applicants’ solicitors were informed that the Minister

was considering an application for a mining lease of the area concerned from a company called Ormonde Brick Limited. The

Minister, in accordance with s.18 of the 1979 Act, gave notice by advertisement between the 3rd April 1992 and the 7th April

1992 of his intention to grant that company the lease in question. The applicants made representations to the Minister as to

the granting of the lease and they were referred to the Board in accordance with s.18(3) of the 1979 Act.

Following an inquiry, the Board issued a report on the 19th October 1992 and came to the following conclusions and

recommendations:

(1) that they had already rejected the application by the applicants for the registration of the minerals as excepted in

their decision of 20th February 1984;

(2) that a certain provision should be included in the lease to be executed in favour of Ormonde Brick Limited because of

the concerns of another party.

It is clear from the Board’s report that, at the inquiry, the applicants’ solicitor reserved his clients’ position as to the previous

ruling of the Board.

On the 17th May 1993, the High Court gave leave to the applicants to seek relief by way of judicial review in the form of orders

of certiorari quashing the decision of the Board of the 14th December 1992 and a declaration that the provisions of ss.12 and

17 of the 1979 Act are contrary to Articles 40.1, 40.3 and 43 of the Constitution. In their statement of opposition, the

respondents (who were the same as the respondents in these proceedings) pleaded inter alia that the applicants had been

guilty of “undue delay” in bringing the proceedings.

On the 21st October 1994, the present proceedings were instituted by plenary summons in which the applicants claimed

“1. A declaration that [the first named applicant] was working or developing the lands in respect of which it has mineral

rights at Slatt Lower (part), Agahaterry (part), Turra (part), Coolbawn (part), Slatt Upper, Doonane, Ardra, Castlecomer

- Demense, Farnans, Aghamucky, Crutt, Loon, Kiltown, Kilgorey and Moyhora in Counties of Carlow and Laois on or

before 15th December 1978

“2. An order allowing an appeal against the decision of the [Board] dated February 1984 and substituting therefore an

order declaring that the [applicants] herein are entitled to claim the benefit of s.15 of the 1979 Act in respect of the

said lands in question.”

A statement of claim and defences having been delivered on behalf of the applicants and the respondents, the preliminary issue

which is the subject of this appeal was heard by Carroll J. It was stated on behalf of the Board that it would abide the order of

the court and they took no further part in the proceedings. In an affidavit on behalf of the remaining respondents (hereafter

“the respondents”), Mr. John Pyne, senior geologist in the Department of Transport, Energy and Communications, said that the

respondents had no record of the applicant’s activities in the relevant townlands for the period prior to the 15th December

1978. He further deposed that a key witness as to the extent of those activities would have been Mr. Michael O’Meara, an

officer in the Geological Survey of Ireland until 1984, who had died in 1986.

In a written judgment of the 5th October 1998 the learned High Court judge concluded that the delay on the part of the

applicants in instituting these proceedings was inordinate and inexcusable and that in the interests of justice the applicant’s

claim should be struck out. From that decision, the applicants have now appealed to this court.

On behalf of the applicants, Mr. Gerard Hogan SC did not seriously contest that the delay of over 10 years in instituting the

proceedings was inordinate. He urged, however, that it was excusable having regard to what he described as the “stalemate”

between the parties which was the result of their having failed to reach agreement as to the terms of a mining lease, following

the unsuccessful application by his clients to have their minerals registered as excepted minerals. The applicants, for their part,

were happy that this situation should continue and resorted to legal proceedings only where the Board had, in effect, disturbed

the status quo in November 1992 by recommending the grant of a mining lease.

Mr. Hogan, however, submitted that, even assuming the delay to have been both inordinate and inexcusable, the High Court

and this court were required under the principles laid down by this court in Primor plc -v- Stokes Kennedy Crowley [1996] 2IR

459 at pp. 475-476 to determine whether the balance of justice was in favour of, or against, further proceedings in the case.

He submitted that, in this case, the learned High Court judge was wrong in law in concluding that the plaintiff’s claim would

have to be determined by the High Court after hearing oral evidence and that this would be unfair to the respondents, having

regard to the difficulties of finding witnesses as to the state of facts existing on the ground in December 1978. He said that, on

the contrary, the plaintiff’s claim could be determined solely on the documentary evidence available and that no oral evidence

would be required.

In support of this contention, Mr. Hogan relied strongly on what he described as the clarification of the scope of a statutory

appeal contained in Orange Communications Limited -v- Director of Telecommunication Regulation [2000] 4 IR 136. He

submitted that it was clear from that decision that what he described as an appeal of this nature, while slightly wider than

proceedings by way of judicial review simpliciter, was determined by reference only to the materials which were before the

Board when they made their determination.

Mr. Hogan further submitted that, in any event, there was no such delay and consequent prejudice, as referred to in the

judgment of Hamilton CJ in Primor, which would make it unfair to the respondents to allow the matter to proceed.

On behalf of the respondents, Mr. Ian Finlay SC submitted that the proceedings instituted by the applicants sought relief under

s.15(4) of the 1979 Act. That provision, he said, did not envisage the bringing of any appeal from the decision of the Board: no

such language appeared in the subsection. He submitted that it envisaged an application de novo to the High Court in the

course of which the applicants would be perfectly entitled to adduce oral evidence as to the state of facts in 1978. The

respondents were clearly and unarguably prejudiced in meeting such a claim based on oral evidence, not merely by the passage

of time and the fact that peoples’ memories at this stage would be far less reliable, but also by the fact that one of their

principal witnesses, Mr. O’Meara, had died in 1986. In the result, the balance of justice required that the proceedings be struck

out.

Section 14 of the 1979 Act provides that

“(1). Subject to s.15(5), s.12 shall not apply to minerals of any description in any land if, at the 15th day of December

1978, a person was lawfully working or developing a mine of such minerals.

(2). For the purpose of s.s.(1) a person shall be deemed to be developing a mine if, on an application under s.15, he

proves that before the date mentioned in that subsection he had decided to do so in accordance with plans based upon

a comprehensive study indicating a reasonable prospect of commercial development and that his decision stood at the

passing of this Act.”

Section 15 provides inter alia that

“(1). A person entitled to a right of working minerals which, by virtue of s.14, are excepted from the application of s.12

may apply to the [Board] in such manner and within such time as may be prescribed for the registration of such

minerals as excepted minerals

(2). Notice of the application shall be served by the [Board] on the Minister and on such persons as may appear to the

Board to have an interest in the proceedings

(3). Where, on an application under this section, the [Board] finds that minerals of any description in any land are

excepted from the application of s.12 the Board shall register such minerals as excepted minerals.”

Subsection (4), as already noted, then goes on to provide that a person whose application is rejected by the Board has the

right to apply to the High Court for an order directing the Board to register the minerals as “excepted minerals”.

The first question that arises is as to the scope of the High Court’s jurisdiction when considering an application under s.15(4).

As is demonstrated by the authorities, in determining its scope the court must have regard to the actual words used by the

legislature. However, certain general principles are clear: as Costello J, as he then was, said in Dunne -v- Minister for Fisheries

[1984] IR 230,

“As pointed out in Wade’s Administrative Law (5th Ed., p.34): ‘the system of judicial review is radically different from the

system of appeals. When hearing an appeal the court is concerned with the merits of the decision under appeal. When

subjecting some administrative act or order to judicial review, the court is concerned with its legality. On an appeal the

question is ‘right or wrong?’ On review the question is ‘lawful or unlawful?’”

“However, this does not mean that in every case the court’s jurisdiction on a statutory appeal is the same, in every

case the statute in question must be construed. In construing a statute it does not seem to me to be helpful to apply

by analogy the rules of judicial review since, by granting a statutory appeal, the legislature must have intended that the

court would have powers in addition to those already enjoyed at common law.”

Those observations apply with even greater force where, as here, the legislature, designedly it must be assumed, speaks of an

application to the High Court for an order directing the registration of the minerals as excepted, rather than an appeal from the

decision of the Board rejecting a similar application. Construing the language used in this provision, it is clear beyond argument

that the question to be answered is “right or wrong” and not “lawful or unlawful”. I see no reason, in those circumstances, to

attribute to the legislature an intention to preclude an applicant from adducing oral evidence to the court with a view to

satisfying the court that the decision of the Board was wrong on the merits and not simply a decision at which the Board, on

the materials before it, could not lawfully have arrived.

In this context, I am satisfied that the decision of the High Court in Orange is of no assistance to the applicants. In that case,

the wording of the relevant section provided for an appeal to the High Court against the decision of a particular officer, on the

hearing of which the High Court could inter alia confirm the decision or direct the Minister to make some other form of order.

Macken J was satisfied that this envisaged a form of judicial review, albeit one which was somewhat wider than conventional

judicial review, under which the reasonableness of the officer’s decision should be ascertained by reference only to the

materials which she had before her. In stark contrast, the provision with which we are concerned makes it clear that the High

Court may direct the registration of the minerals as excepted where it is “satisfied” that they are so excepted by virtue of

s.14(1).

It is, of course, the case that, if the submission advanced on behalf of the applicants was well founded, the threshold at which

the High Court could reach a decision that the Board should be directed to register the minerals as excepted minerals would be

significantly higher than would be the case if the submission advanced on behalf of the Minister is correct. However, ultimately

the court has to construe the section in accordance with what it considers to have been the intention of legislature and not by

reference to any concession, if concession it be, made on behalf of the applicants.

I am satisfied, accordingly, that, if the application were now allowed to proceed, the Board would be obliged to consider it, not

merely having regard to any documentary materials that might be available, but also in the light of whatever oral evidence the

applicants and the Minister were respectively in a position to adduce.

It is in that context that the test laid down in the judgment of Hamilton CJ in Primor must be applied in the circumstances of

the present case. It is beyond argument that the delay here was inordinate: I am also satisfied that the trial judge was entirely

correct in treating it as inexcusable. The mere fact that the parties engaged in some intermittent and inconclusive discussions

as to the granting of a mining lease afforded no justification for deferring an application to the court for an order directing the

Board to register the minerals as excepted minerals.

There remains the final question as to whether the balance of justice was in favour of striking out the proceedings or permitting

them to continue. Again, I have no doubt that the trial judge was entirely correct in concluding that it was in favour of striking

out the proceedings. Since the applicants would be entitled to adduce to the High Court oral evidence in support of their

contention that the minerals were being worked or exploited on the relevant date, the Minister would suffer unarguable

prejudice, even if the persons in a position to say what was happening nearly a quarter of a century ago were still available,

given the frailty of human memory. The trial judge concluded that this manifest prejudice was seriously exacerbated by the fact

that their principal expert witness was dead and again I have no doubt that she was correct in so holding.

I would dismiss the appeal and affirm the order of the High Court.