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1. This is a consultative case stated by Judge Crowley, a judge of the District Court. The case arises out of proceedings before the District Court under s. 62(1) of the Housing Act 1966 (as amended) for a warrant for possession under that section. The case stated sets out that what might be described as the usual formal proofs were complied with. But it was submitted on behalf of the defendant that that was not sufficient. Her counsel made the following submissions as set out in the case stated:

2. Furthermore, the District Court has a duty to defend and, in the case of infringement, vindicate the constitutional rights of any citizen who comes before him. The defendant contests that a number of her constitutional rights have been or will be affected by the actions of the plaintiff:

3. Counsel for the plaintiff argued with alleged supporting authorities that the district judge was bound to issue the warrant once he was satisfied of the formal proofs. It was submitted that s. 62 of the 1966 Act, as amended by s. 13 of the 1970 Act creates a self-contained scheme which allows a housing authority such as the plaintiff to fulfil its obligation under the Act and the recovery of possession of dwellings and other buildings. Particular reliance is placed on the passage in Keane J’s book on The Law of Local Government in the Republic of Ireland at p. 130 which reads as follows:

4. Since it is important for a housing authority to have a rapid and effective means of recovering possession of dwellings provided by them under the Act, it is not surprising to find that there is a special statutory machinery for that purpose.

5. The opinion of the High Court is sought by the learned judge of the district court on the following questions:

6. A number of authorities have been cited at the hearing but two cases are especially relevant. One is State (O’Rourke) v. Kelly [1983] IR 58 in which the Supreme Court upheld the constitutionality of s. 62 of the Housing Act 1966. The challenge had been made on the grounds that subs. (3) of that section had the effect of imposing on the district justice a mandatory obligation to issue the warrant mentioned in the section and thereby constituted an invasion of the judicial domain by depriving the district justice of any real judicial discretion. The court rejected that argument and the final passage of the judgment of O’Higgins CJ is particularly relevant and reads as follows:

7. It will be seen that it is only when the provisions of s. 62(l) have been complied with and the demand duly made to the satisfaction of the district justice that he must issue the warrant. In other words, it is only following the establishment of specified matters that the subsection operates. This is no different to many of the statutory provisions which on proof of certain matters, make it mandatory on a court to make a specified order. Such legislative provisions are within the competence of the Oireachtas. The court, therefore, rejects the complaint that the section is invalid having regard to the provisions of the Constitution on the ground alleged.

8. Counsel for the defendant does not and of course could not, except in separate proceedings in the Supreme Court, seek to have that decision reconsidered and there is therefore no challenge whatsoever to the constitutionality of s. 62 nor of course could there be in the hearing of a case stated from the District Court. I will return to what Mr Durcan SC’s argument is but I would like to note particularly in passing the words ‘the establishment of specified matters’ (my emphasis) contained in the passage cited. It is obvious, I think, from the judgment of O’Higgins CJ, that the Supreme Court was considering the constitutionality of the section on the assumption (not argued against) that only formal proofs were required under s. 62.

9. The second of the particularly relevant cases is Dublin Corporation v. McDonnell [1946] Ir Jur Rep 18. That was a case decided by Judge Shannon in the Circuit Court on an appeal from an analogous application in the District Court for a warrant for possession. It was argued by counsel for the defendant in that case that the court had a discretion as to the granting or refusing of an order based on the reasonableness or unreasonableness of so doing and even though the court might find that the tenancy had been legally determined it might in the exercise of its discretion refuse to make an order. That argument was rejected by Judge Shannon and Mr Durcan does not seek to renew it in this Court.

10. To understand what Mr Durcan is in fact arguing, it is necessary to cite s. 62(1), (3) and (4) of the Housing Act 1966 as amended by s. 13 of the Housing Act 1970. These subsections read as follows:

11. Mr. Durcan, in his oral argument, relies almost exclusively on the interpretation to be placed on the word ‘duly’ which appears twice in the section. As provided for in subs. (3) the judge of the District Court must be satisfied both that the application before him is duly made and if so satisfied he must be further satisfied that the demand mentioned in subs. (1) has been duly made. Mr. Durcan makes the ingenious argument that the word ‘duly’ brings into play not just the formal proofs but the entire question of whether the plaintiff is carrying out its statutory obligations of housing towards the defendant both in a substantive sense and in the sense of affording the defendant fair procedures. In making this argument, Mr. Durcan relies (inter alia) on the modern case law and jurisprudence relating to the obligations to house members of the travelling community and the general tendency of the courts more and more to ensure that statutory obligations be fairly and constitutionally complied with. For instance, Mr. Durcan would argue that the district judge should concern himself with whether the housing authority in ejecting the defendant is then in breach of its own housing obligations towards the defendant, that if there is a breach of that obligation, particularly in the context of no provision of reasonable alternative accommodation, the application for the warrant cannot be said to be duly made. Mr. Durcan would further argue that the defendant is entitled to know the reason for the corporation’s desire to recover possession as a matter of fair procedures and that in the absence of such alleged fair procedures the district judge should not regard the application as duly made. Mr. Durcan says that having regard to the provisions of the Constitution and having regard to the Housing Acts generally which form a single code and the obligations of the housing authority thereunder, the section must be interpreted in this way.

12. While I see the force of these arguments, I find myself unable to accept them. I agree with Mr. Durcan that in considering the meaning of any one section in the Housing Acts, the entire statutory code must be considered and of course the Constitution always has to be considered but it would seem to me to be both reasonable and constitutional that there be available to a housing authority a rapid method of recovering possession of any one dwelling provided by it without having to give reasons for so doing. The local authority has to consider its overall management of housing and it owes an obligation to all the persons in need of housing as well as to any one individual. In that context, it is and ought to be entitled to plan its arrangements for providing housing and furthermore there may be very good reasons why confidentiality should be maintained in relation to any particular decision to recover possession of a dwelling provided by the housing authority even though the person the subject matter of the warrant, may then become a person in need of housing. In that case obviously the obligation will then be on the housing authority to provide alternative accommodation as best it can. I also of course agree with Mr. Durcan that a housing authority must carry out its obligations in a proper manner and must not abuse its powers or discretions but if it does so, it will be subject to the remedy of judicial review. It is not a matter for the District Court judge to consider in a hearing under s. 62 of the 1966 Act. It has been argued that judicial review is a cumbersome and expensive procedure and that the ordinary person in need of housing might not even know of its existence but I do not think that that is any reason for importing into s. 62 requirements which were never intended to be there. As has been pointed out at the hearing, Dublin Corporation has been providing housing over a great number of years and the court is entitled to take judicial notice of how rarely any cases are brought alleging failure to exercise their statutory duties or improper exercise of their statutory duties. The question of judicial review, therefore, would very rarely arise. But even if it were the case that judicial review might be considered too cumbersome or too expensive a procedure, it is for the Oireachtas to alter it. I am quite satisfied that the word ‘duly’ in relation to the making of an application simply refers back to the specified requirements set out in s. 62(1). One of those requirements relates to the making of a demand and another relates to what is to be contained in the statement of demand. That being so, it may seem strange that the word ‘duly’ is used a second time in relation to the making of the demand. But I think that no significance can be attached to this and that there is an element of overlap. The requirements under subs. (1) are essentially conditions precedent to the bringing of the application in the first instance. There are obligations which the local authority must have regard to before it ever lodges the application whereas the reference to the demand being duly made is a direct reference to an essential proof at the hearing which might obviously be subject to challenge and cross examination. There is still, however, an element of overlap because undoubtedly the matters contained in subs. (l) could also be challenged. But it would be inconsistent with the purpose of the section to interpret it in any other way than that formal proofs that the matters set out in this section alone are required and the District Court judge is not entitled to enquire into anything else. If there are wider complaints, there is another forum for dealing with them. I would, therefore, answer the questions proposed by Judge Crowley as follows: