The Gazette 1972

UNREPORTED IRISH CASES

assignment for aproval. The requisitions were duly returned by Mr. Y. (5) On the 4th March 1969. Mr. Z pointed out to Mr. Y that Mr. X had negotiated the sale as the agent of the vendor, and had signed a contract in that capacity. (6) Mr. Y replied on the 10th March that he had received instructions from the vendor that the sale was off, as the vendor had not authorised Mr. X to sign a contract on his behalf, and Mr. X had no authority to do so. The vendor also alleged that the purchaser's offer of £8,400 was a cash offer to be com- pleted within 3 or 4 weeks. (7) Mr. Z stated that there was a binding contract between the parties and that he would issue proceedings for specific performance. (81 The Vendor had purported to write to his auctioneer, Mr. X. on the 28th January 1969 that he had received on offer of £8,750 plus fees from another company. This was correct, but it was a falsehood to state that he had accepted it. Mr. X replied on the 31st January that he had sold the property on vendor's instructions. (9) In a latter of the 6th March. 1969. from the Vendor to his solicitor Mr. Y, he stated that he had at no time given

THE COURT MUST DECIDE WHETHER MINISTERIAL DOCUMENTS ARE PRIVILEGED The facts have already been stated in the Gazette. It will be recalled that in June, 1970, the Assistant Secretary of the Department swore an affidavit that he had in his possession the inspector's report, and refused to produce it on the alleged ground that production would be contrary to public policy and detrimental to the public interest; The Minister himself directed privilege of the document on the same ground. Kenny J. accepted the Minister's view, and disallowed the claim of privilege. It is claimed that in a civil action the Executive may by its own judgment withhold relevant evidence from the Judiciary. Walsh, J. emphasised that the administration of justice is committed solely to the Judiciary by the Constitution. Following Conway v. Rimmer— (19681 A.C.. if there is a conflict between the Executive and the Judiciary which arises during the exercise of the judicial power, then it is. for the judicial power to decide which public interest shall prevail. As between the State and the litigant, it is for the Court to decide which is the superior interest in the circumstances of each case. If the security of the State were involved, it is clear that the Courts would refuse the order for production, but it is impossible for for the judicial power in the proper exercise of its functions to permit any other body to deride for it whether or not the document will be disclosed. In a last resort, the derision lies with the Courts as long as they have seisin of the case. As the documents concerned inay range from the trivial to the vitally important, some authority must decide which course is least calculated to injure the public interest. It is self evident that •this is a matter which falls into the sphere of the Judicial power. The Court may be able to determine the matter without production of the document, but the Court may order inspection of the document to determine its nature if required. No documents may be withheld from inspection of the Court on the ground that they belong to a particular class of docu- ments. Kenny J.'s acceptance of the Minister's view without question cannot prevail. In this case the Minister has not propertly disclosed the grounds for his objection. The decision in Duncan v. Cammcll Laird (1942) A.C., is inconsistent with the supremacy of the judicial power under the Constitution and was first formulated when such a constitutional supremacy did not exist. Under the Housing Art 1966. the function of the inspector is to convey to the Minister a fair and accurate account of what transpired, but it is no part of his functions to arrive at any conclusion. The Minister must act judicially and consider the report within the bounds of Constitutional justice. If the Minister is influenced by the opinion of the inspector, the Minister's decision will be open to review, and may be quashed. The appeal was accordingly allowed unanimously. Murphy v. Dublin Corporation and Minister for Local Go .'em- inent—Full Supreme Court per Walsh J.—unreported—14th July, 1972. ORDER FOR SPECIFIC PERFORMANCE GRANTED TO PURCHASER ON SALE OF PREMISES The case relates to the sale of Cedar Grove. Sttllorgan. for £8,400 and auctioneers fees. O'KeefFe P. had granted on order for snecifir performance to the purchaser to be performed by the defendant vendor. The whole correspondence between the vendor defendant, the plaintlfTs purchaser, the vendor's auctioneer (Mr. X ) , the vendor's solicitor ("Mr. Y") and the purchaser's solicitor ("Mr. Z") was put into evidence. From this it emerged:— ' (1) The defendant approached Mr. X in 1968, and ultima- tely Mr. Y wrote to Mr. X in November 1968 confirming that the reserved price would be £8,300 and fes. (2) In December the plaintiff purchaser called to Mr. X's office and, having paid a deoosit of £2.100 and £480 auctioneer's fees, agreed to purchase the premises for £8,400. This purchase was confirmed to Mr. Y on 10th December. (3) In replying on the 23rd Deccmher. Mr. Y made it clear that the vendor was not liable for advertising expenses, and Mr. X agreed to this on 31st December. (4) Mr. Y wrote »o defendant's solicitor (Mr. Z) at end of January 1969 complaining about the delay in completing the matter. Mr. Z then sent the Requisition on Title and draft