THE HIGH COURT

2001 No. 391SP
BETWEEN

CASTLEISLAND CATTLE BREEDING SOCIETY LIMITED

APPELLANT

AND

THE MINISTER FOR SOCIAL AND FAMILY AFFAIRS

RESPONDENT

JUDGMENT of Mr. Justice Diarmuid B. O’Donovan delivered on the 7th day of November, 2003
	This is an appeal by the appellant pursuant to s. 271 of the Social Welfare (Consolidation) Act, 1993 from a determination of the Chief Appeals Officer made on the 6th July, 2001, whereby it was determined that the decision of the Appeals Officer made on the 7th February, 2001 that Michael Walsh of Creagh Street, Glin in the County of Limerick was employed by the appellants in employment which is insurable for all benefits under the Social Welfare Act and, therefore, in effect, employed on a contract of service, was not erroneous, by reason of some mistake having been made in relation to the law or the facts, as to warrant revision pursuant to s. 263 of the said Act.  
	The background to these proceedings is that, by agreement in writing made on the 18th January, 1990 between the appellant, who operate an artificial insemination station, of the first part and the said Michael Walsh, who is an artificial inseminator by occupation, of the second part, the appellant engaged the services of the said Michael Walsh to provide an artificial insemination service on behalf of the said artificial insemination station within the area described in the said agreement and in accordance with the terms thereof.  On the 5th May, 2000, on an application in that behalf by the said Michael Walsh, a Social Welfare Deciding Officer decided that, for the purposes of the Social Welfare Acts, the relationship between the appellant and the said Michael Walsh with regard to the provision of artificial insemination services pursuant to the said agreement of the 18th January, 1990 was that Mr. Walsh operated as an independent contractor.  In this regard, it would appear that that decision was consistent with decisions made by other Deciding Officers of the Department of Social Welfare based on precisely the same agreements as that of the 18th January, 1990 between the appellant and the said Michael Walsh.  That as it may be, however, the said Michael Walsh, being dissatisfied with the said decision of the Deciding Officer, appealed that decision to the Appeals Officer.  In this regard, it seems to me that the Appeals Officer was entitled to disregard previous decisions of other Deciding Officers with regard to the relationship inter se of parties to similar agreements to that which was the subject matter of the appeal to her and to determine that appeal solely in the light of any evidence which was presented to her and any submissions arising therefrom which might be made to her.  In that regard, I know of no good reason why the Appeals Officer should be influenced by previous decisions of other Deciding Officers; no more than she was bound by the decision of the Deciding Officer which was the subject matter of the appeal to her and no one suggested to me that there might be such a reason.
	The Appeals Officer’s determination of the appeal against the said decision of the Deciding Officer of the 5th May, 2000 was delivered on the 7th February, 2001 following an oral hearing before her on the 28th September, 2000 at which evidence was led on behalf of Mr. Walsh and on behalf of the appellant and submissions with regard to relevant law were made to her.  In the light of that evidence and of those submissions, as I have already indicated, the Appeals Officer concluded that the relationship between the appellant and Mr. Walsh was that of master/servant so that Mr. Walsh was employed under a contract of service.  Being dissatisfied with that determination, the appellant applied to the Chief Appeals Officer pursuant to the provisions of s. 263 of the said Act of 1993 to revise the decision of the Appeals Officer on the grounds that it was erroneous by reason of both mistake in relation to the law and the facts.  In this regard, it was suggested on behalf of the respondent, that, in the event that the appellant was dissatisfied with the said decision of the Appeals Officer, the appropriate remedy was for the appellant to apply to the Appeals Officer pursuant to the provisions of s. 262 of the said Act of 1993 to revise her decision.  However, as I am satisfied that the appellant’s dissatisfaction  with the said decision of the Appeals Officer of the 7th February, 2001 did not depend on new evidence, or new facts brought to her notice after the date of her decision, I think that it would have been inappropriate for the appellant to have applied to the Appeals Officer to revise her decision and that the only course open to it for the purpose of setting aside, reversing or otherwise interfering with the said decision was an application to the Chief Appeals Officer under the provisions of s. 263 of the said Act of 1993 to revise that decision.  In that regard, when applying to the Chief Appeals Officer to revise the said decision of the Appeals Officer, the appellant specifically requested the Chief Appeals Officer to hold an oral hearing for the purpose of taking evidence and/or receiving submissions; a request to which the Chief Appeals Officer did not accede for the reason, as he stated “it does not seem to me, however, that such review procedure (i.e. a review to consider whether or not the decision of the Appeals Officer should be revised) envisages a further level of appeal requiring an oral hearing. In this regard, it seems to me to be axiomatic that when, pursuant to the provisions of s. 263 of the 1993 Act, the Chief Appeals Officer is requested to revise a decision of an Appeals Officer, he must, perforce, conduct a review of that decision  before he can determine whether or not it is appropriate to revise it.  In this case, notwithstanding the request of the appellant that he should hold an oral hearing for the purpose of taking evidence and/or receiving submissions, the Chief Appeals Officer limited that review to a consideration of the report dated 7th February, 2001 of the Appeals Officer which was prepared following the hearing, and presumably, a consideration of the documentation produced in the course of that hearing and, in particular, the said agreement of the 18th January, 1990 and, of course, he would have considered the conclusions of the Appeals Officer. Following that review, the Chief Appeals Officer, in a memorandum dated the 5th July, 2001, determined that it did not appear to him that the decision of the Appeals Officer was erroneous by reason of some mistake having been made in relation to the law or the facts so as to require revision under s. 263 of the Social Welfare (Consolidation) Act, 1993 and it is from that decision that the appellant has appealed to the Court.
	The appellant is critical of the Chief Appeals Officer’s decision in this case on two grounds; firstly, on the ground that, when purporting to review the decision of the Appeals Officer, he failed to observe principles of natural and constitutional justice, in that, he refused to accede to the appellant’s request to hold an oral hearing for the purpose of taking evidence and/or receiving submissions and, therefore, did not conduct a true review of that decision and, secondly that the Chief Appeals Officer erred in refusing to revise the decision of the Appeals Officer given that, as was submitted on behalf of the appellant it manifestly involved errors of law and unsustainable findings of fact.  I propose to deal with each of these grounds of appeal separately. 
	Insofar as the appellant complains that the Chief Appeals Officer did not conduct a true review of the said decision of the Appeals Officer of the 7th February 2001, it is, I think, relevant to note that, when applying to the Chief Appeals Officer under the provisions of Section 263 of the said Act of 1993 to revise that decision, the appellant, through their solicitors, in a letter dated the 12th day of April, 2001 addressed to the Chief Appeals Officer, specifically outlined the grounds upon which the said revision was sought; grounds which were enlarged upon in a further letter from the appellant’s solicitors to the Chief Appeals Officer dated the 25th May, 2001.  While it seems to me that some of those grounds were duplicated with others and that many of them were so self evident that they required no further elaboration or explanation than was contained in the said letters, there were, in my view, a number of grounds advanced on behalf of the appellant to ground its application for a revision of the said decision of the Appeals Officer which called for inquiry by the Chief Appeals Officer as to the basis upon which those grounds were advanced.  I would accept that those grounds which, in my view, call for inquiry by the Chief Appeals Officer, might not necessarily require the Chief Appeals Officer to conduct a hearing for the purpose of taking further evidence.  However, I think that the very least that the Chief Appeals Officer might have done on receipt of those two letters from the appellant’s solicitors was to hold an oral hearing at which submissions on behalf of the parties might be made to him; particularly, as the appellant had requested him to do so.  I think that his failure to do so deprived the appellant of a fair hearing of its application to revise the said decision of the Appeals Officer and offended principles of natural and constitutional justice as laid down by the Supreme Court in case of Kiely v The Minister for Social Welfare [1977] I.R. at p. 257 wherein, as I interpret the judgment of the Court; and I paraphrase, it was held that ‘where, on an appeal to an Appeals Officer at the Department of Social Welfare, there are unresolved conflicts in the evidence, those conflicts shall be resolved by an oral hearing’.  I also find support for this proposition in the judgment of Costello P. given in Galvin v The Chief Appeals Officer and the Minister for Social Welfare [1997] I.R. at p. 240 being a case in which the learned President held that a conflict between the parties before the Chief Appeals Officer could not be properly resolved without oral testimony.  While, as I have already indicated, I am not convinced that oral testimony before the Chief Appeals Officer was necessary in this case, on the same principal as that relied on by Costello P., I think that the conflict arising from the appellant’s grounds of appeal could only be resolved by the Chief Appeals Officer following a consideration of submissions thereon by the respective parties.  In this regard, I accept that, as has been submitted on behalf of the respondent, it is not mandatory for the Chief Appeals Officer, when conducting a review of the decision of an Appeals Officer for the purpose of determining whether or not it is appropriate to revise that decision, to hold an oral hearing.  However, when, as it seems to me was the situation in this case, the grounds of appeal advanced by the appellant call for further inquiry by the Chief Appeals Officer, the holding of an oral hearing to receive submissions with regard to those grounds is obligatory.  Indeed, one wonders why the Chief Appeals Officer did not even explain why he did not think that an oral hearing, at which, at least, submissions with regard to the appellant’s grounds of appeal could have been made to him was not necessary.  For the sake of completeness, I would point out that, in my view, among the grounds advanced by the appellant in support of its application to revise the said decision of the Appeals Officer, there were grounds which called for further inquiry by the Chief Appeals Officer, and I was particularly influenced in that regard by the complaint that the findings and the decision of the Appeals Officer were contrary to the evidence and against the weight of the evidence, that the Appeals Officer had regard to irrelevant matters and/or matters to which she was not entitled to have regard at law and that she failed to take adequate account and give sufficient weight to the degree of control exerted over the AI Enterprise by the Department of Agriculture and to the fact that many of the restrictions placed on the AI Man were requirements imposed by the Department of Agriculture.  In my view, it was impossible for the Chief Appeals Officer to adjudicate fairly on those complaints in the absence of submissions thereon from the respective parties.  
	During the course of the hearing before me, it became abundantly clear that the appellant was very disappointed with the determination of the Appeals Officer with regard to the relationship between the appellant and Mr. Walsh and it seemed to me that the argument advanced on behalf of the appellant was calculated to demonstrate to me that the reality of that relationship was very different from that determined by the Appeals Officer.  Nevertheless, it was conceded on behalf of the appellant that, when determining an appeal pursuant to s. 271 of the Social Welfare (Consolidation) Act of 1993, the Court is only concerned with questions of law arising from the refusal of a Chief Appeals Officer to revise a decision of an Appeals Officer and, accordingly, when determining this appeal, the Court is not concerned with the reality of the relationship between the appellant and Mr. Walsh but rather with whether or not, as a matter of law, the Chief Appeals Officer was correct when he determined that the decision of the Appeals Officer was not erroneous by reason of some mistake having been made in relation to the law or the facts so as to require revision.  In my view, it was entirely appropriate that the appellant should make that concession because I am satisfied that, when determining this appeal, it is no function of mine to express any views on the nature of the relationship between the appellant and Mr. Walsh. 
	Insofar as the appellant complaints that the Chief Appeals Officer erred in refusing to revise the said decision of the Appeals Officer, given that, as was submitted on behalf of the appellant, that decision (the decision of the Appeals Officer) involved errors of law and unsustainable findings of fact, it is my view, that, in the context of considering an application under the provisions of s. 263 of the said Act of 1993, a Chief Appeals Officer is the equivalent of an “expert administrative tribunal” such as was contemplated by Chief Justice Hamilton in the course of a judgment which he delivered on the 1st December, 1997 in a case of Henry Denny and Sons (Ireland) Limited v. The Minister for Social Welfare [1998] 1 I.R. at page 34, and, accordingly, as stated by Chief Justice Hamilton, the Court should be slow to interfere with the decision of the Chief Appeals Officer when he concluded that the decision of the Appeals Officer of the 7th February, 2001 was not so erroneous by reason of some mistake having been made in relation to the law or to the facts as to require revision.  I am satisfied that that is so and that, therefore, I must, as I do, consider any criticism of the Chief Appeals Officer’s determination, which is the subject matter of this appeal, with extreme caution. On the other hand, if it is the case, as is submitted on behalf of the appellant, that the Chief Appeal Officer’s conclusions, when deciding that it was not appropriate to revise the said decision of the Appeals Officer, was based on identifiable errors of law or unsustainable findings of fact, then, as was also stated by Chief Justice Hamilton in the course of the same judgment to which I have just referred, such conclusions must be corrected.  Accordingly, I must ask myself whether or not, as the appellant asserts, when deciding to reject the application to revise the said decision of the Appeals Officer, the Chief Appeals Officer based his conclusions on errors of law and unsustainable findings of fact.  In this regard, it was submitted on behalf of the appellant that it is manifest from an analysis of the report of the 7th February, 2001 whereby the Appeals Officer outlined the grounds upon which she had determined that the relationship between the appellant and Mr. Walsh was that of master/servant that, when arriving at that conclusion, she ignored vital aspects of that relationship.  In particular, it was submitted that she ignored the provisions of Clause 8 of the said agreement of the 18th January, 1990 between the appellant and Mr. Walsh whereby it was provided that repeat inseminations performed by Mr. Walsh would be carried out at his sole cost and expense, the provision of Clause 14 of the said agreement whereby it was provided that it was the duty of the inseminator to provide from his own resources transport and a communication system suitable for the performance of his duties and arrange for his own insurance cover and indemnify the appellant against all claims arising out of the use by him of such transport, and which required the inseminator to provide insemination services at his own risk; arranging for appropriate insurance in that behalf and indemnifying the appellant against all claims arising out of his (the inseminator’s) negligence, the provisions of Clause 15 of the said agreement which provided that, during the continuance of the agreement, the inseminator was free to provide such other services and be engaged in such other businesses as he may decide provided that his involvement in such other businesses did not interfere with his duties and obligations under the said agreement and provided that such other business was not in competition with the business of the appellant, the provisions of Clause 19 of the said agreement which allowed (inter alia) that the inseminator’s fees could be reduced in certain circumstances and the provisions of Clauses 21 and 22 of the said agreement which provided for the circumstances under which the said agreement could be terminated and, in particular, that the agreement could be terminated by the appellant without notice.  Moreover, it was submitted on behalf of the appellant that, when arriving at her decision, the Appeals Officer ignored the fact that the whole tenor of the said agreement was such that the relationship between the parties thereto was of a type which enabled the inseminator, independently of the appellant, to influence his profits arising from his performance of the said agreement; in effect, that the inseminator could profit from his own efficiency.
	In my view, those provisions of the said agreement and the fact (if it be so) that the nature of the agreement was such that the inseminator, by his own devices, could influence the amount of profit which he derived from the arrangement, were very relevant to the determination of the nature of the relationship between the parties to the said agreement and, if it be the case, as submitted by the appellant, that, in making her determination of the 7th February, 2001 the Appeals Officer, in fact, ignored those matters to which I have referred and if it be the case that this is manifest from her report, then I am of the view that that was a mistake on her part; a mistake in relation to the law because, in my view, a finding which ignores basic facts is an error of law.  It follows, of course, that, if the determination of the Appeals Officer is erroneous by reason of some mistake having been made in relation to the law or the facts, then, in turn, the decision of the Chief Appeals Officer of the 5th July, 2001 is vitiated.  
Apart from the foregoing, the appellant submitted that, in arriving at her determination of the 7th February, 2001, the Appeals Officer misconstrued the arrangement between the appellant and the inseminator with regard to the provision of equipment by the inseminator and did not have due regard for the effect which regulations made pursuant to the Livestock (Artificial Insemination) Act, 1947 for controlling the practice of artificial inseminations of animals and, in particular, for the licensing of inseminators appointed for that purpose had on the relationship between the appellant and the inseminator.  In this regard, it would appear that the Appeals Officer proceeded on the basis that the only equipment provided by the inseminator was a two way radio which she thought was no more significant than a carpenter providing himself with a tool set which, in any event, does not appear to me to be an appropriate analogy.  That as it may be, however, it would appear that the fact of the matter is that the inseminator was required to provide himself with much more.  For example, he appears to have had to provide his own transport, insurance, disinfectants and protective clothing which the Appeals Officer does not seem to have taken into account when making her determination.  Moreover, it appears to me that, to a certain extent, the relationship between the appellant and the inseminator was governed by regulations made pursuant to the Livestock (Artificial Insemination) Act, 1947 whereby certain controls were imposed on the inseminator; controls over which the appellant had no power.  In those circumstances, seems to me that those statutory controls had no relevance to the determination which the Appeals Officer has to make with regard to the relationship between the appellant and the inseminator.  However, in light of her report, it seems to me that she did not take that fact into account in arriving at her determination.  
On behalf of the respondent, the suggestion that, in arriving at her determination of the 7th February, 2001, the Appeals Officer had ignored and/or misconstrued crucial aspects of the said agreement of the 18th January, 1990 between the appellant and Mr. Walsh and had overlooked the reality of the relationship between those parties pursuant to the terms of that agreement was rejected out of hand.  On the contrary, it was submitted on behalf of the respondent that, overall, the conclusions of the Appeals Officer was sustained by the facts which she found and that, viewing her decision as a whole, she was quite entitled to arrive at the conclusion which, in fact, she reached.  In that regard, it was submitted on behalf of the respondent that the reality of the relationship between the appellant and Mr. Walsh, as reflected in the evidence that was heard by the Appeals Officer totally justified her conclusions.  In that regard, I was referred to a judgment of Mr. Justice Frank Murphy of the High Court delivered on the 25th day of June, 1993 in an unreported case entitled Mary Faulkner v The Minister for Industry and Commerce in which the learned Judge held that the decision of a Tribunal (which, apparently, would include an Appeals Officer) cannot be challenged on the grounds of irrationality if there is any relevant material to support it; a view which the learned Judge maintained was supported by a decision of Chief Justice Finlay given in a case of O’Keeffe v An Bord Pleanála [1992] I.L.R.M. p. 237.  However, I am not persuaded that that judgment of Mr. Justice Murphy has any relevance in the context of this case because, while it may well be that there was some relevant material to support the decision of the Appeals Officer, the appellant does not criticise that decision on the grounds of irrationality but, rather, on the grounds that it was erroneous by reason of mistake in relation to law and/or fact.  In that regard, having carefully considered the contents of the Appeals Officer’s report of the 7th February, 2001, I think that there is substance to the appellant’s criticism of the grounds upon which the Appeals Officer arrived at her decision.  As I read the report, she appears to have little or no regard; either for the provisions of clauses 8, 14, 15, 19, 21 and 22 of the said agreement of the 18th January, 1990 between the appellant and Mr. Walsh, or to the fact that the appellant’s efficiency, in the manner in which he preformed his obligations under the said agreement could determine the amount of profit he generated, all of which, in my view, are matters which are very germane to determining the nature of the relationship between the parties.  Another matter, which of course, was very germane to the nature of the relationship between the parties is what Mr. Walsh had to provide for himself in order that he might fulfil his obligations under the agreement.  In that regard, it seems to me that the Appeals Officer misconstrued the situation and did not have due regard to the fact that Mr. Walsh had to provide his own transport and insurance and purchase necessary disinfectants and protective clothing.  Furthermore, it seems to me that the Appeals Officer equated the statutory controls imposed on Mr. Walsh by the legislature by virtue of the provisions of the Livestock (Artificial Insemination) Act, 1947 with control over him by the appellant which, of course, was not the case.  On top of all that, the Appeals Officer appears to have had scant regard for a fact which I would have thought is very relevant to the matter which she was required to decide that is that, prior to entering into the said agreement of the 18th January, 1990 with the appellant Mr. Walsh had tendered for an area which he hoped to operate and, in affect, bought it.  Prior to that, he had been an employee of the appellant, who had been made redundant. In all those circumstances, I am persuaded that, when arriving at her decision of the 7th February, 2001 whereby she concluded that the relationship between the appellant and Mr. Walsh was that of master/servant, the Appeals Officer did not observe the principles laid down by the Supreme Court in the case of Henry Denny & Sons (Ireland) Limited v The Minister for Social Welfare to which I have already referred, which requires a person making a determination with regard to the status of a relationship between two parties, such as the appellant and the said Michael Walsh, while not confined to considering the terms of any written agreement between the parties that might exist, must take into account both the actual terms of such an agreement and all the circumstances of the relationship.  As I have indicated, I am not persuaded by her report of the 7th February, 2001 that the Appeals Officer, in fact, took account of all those matters when arriving at her decision.  To that extent, therefore, it is my view that her decision was erroneous in law by reason of the fact that she did not take into account all the matters which, by law, she was required to take into account when arriving at a decision.  Indeed, I am not convinced that she got all the facts right but that is by the by.  As I have already indicated, whether or not the Appeals Officer was correct when she concluded that the relationship between the appellant and Mr. Walsh was that of master/servant is not an issue that I have to decide.  What I must determine is whether or not, following his review of the decision of the Appeals Officer which he conducted, the Chief Appeals Officer was entitled to conclude that that decision was not erroneous by reason of some mistake having been made in relation to the law or the facts so as to require a revision.  In that regard, in the light of the memorandum of the 5th July, 2001 whereby the Chief Appeals Officer determined that, following his review of the said decision of the Appeals Officer, it did not appear to him that that decision was erroneous by reason of some mistake having been made in relation to law or the facts, I am satisfied that the Chief Appeals Officer was not entitled to come to that conclusion for the simple reason it is manifest that he did not conduct a proper review of the decision of the Appeals Officer.  In particular, he did not attempt to resolve the majority of the specific issues raised by the grounds of appeal submitted on behalf of the appellant.  Moreover, whatever the nature of the review of the Appeals Officer’s report which he did conduct, it seems to me that it was very limited indeed because he appears to have assumed; wrongly, I think, that she properly took all relevant matters into account.  Indeed, it does not appear to me that he independently considered the facts of the case but rather relied on the Appeals Officer’s judgment to the exclusion of any input of his own.  Accordingly, as I have already indicated, I am not satisfied that the Chief Appeals Officer conducted a proper review of the decision of the Appeals Officer.  Moreover, I believe that, had he done so, he could not reasonably have come to the conclusion that it was free from error. 
In the foregoing circumstances, I will allow the appeal.