The Gazette 1972

(8) The matter became dormant, and the defendant only lodged an appearance in January 1969. The com- pany delivered a statement of claim in May 1969 but the defendant delivered his defence more than two years later, in October 1971. (9) Meanwhile, on 3rd September 1971, as no defence had been delivered for more than a year, a notice of intention to proceed was served by the plaintiff com- pany. In January 1972 the defendant's solicitor threat- ened to have the case dismissed for want of prose- cution, and consequently the plaintiff served a notice of trial in February 1972. (10) The defendant seeks to resume a right to picket. A trade dispute undoubtedly resulted in 1967, at the time of the Labour Court recommendation, and in fact continued to exist until the picketing in January 1968. There appears to be no judicial authority deciding when a picket ends. (11) When Kenny J. made the order of 5th February 1968 it was conditional on the defendant not having in the meantime by his conduct shown that he had brought the trade dispute to an end. The onus of proving this clearly rests on the defendant who asserts he has a right to reinstatement. The defendant, however, has given no satisfactory explanation as to why he allowed such long periods to elapse before entering an appearance and delivering his defence. These unexplained delays are inconsistent with the maintenance of a trade dispute. The defendant had been employed elsewhere, and only took action when he was faced with loss of employment. It follows that there is no trade dispute at present subsisting, and that the injunction to restrain picketing will be made permanent. [Esso Teoranta v McGowan; Henchy J.; unreported; 23rd June 1972.] Original summons may be renewed for good reason. Murnaghan J. had refused to renew a plenary summons under Order 8, Rule 1, of the Rules of the Superior Courts 1962. This was a claim for damages for negli- gence arising out of a collision in Co. Monaghan, on 13th July 1965. On 4th July 1968 a plenary summons was issued by the local solicitor of the party who sus- tained injuries against a customs official, but the Chief State Solicitor had denied liability on behalf of the official. The solicitor had also been in touch with the insurance company of the car in which the plaintiff was a passenger. In 1968-69 the plaintiff made frequent calls upon the local solicitor, but no progress was made. Finally the plaintiff put the matter in the hands of a Dublin solicitor to whom the papers were transferred. Order 8, Rule 1, states that no original summons shall be in force for more than twelve months—but before that time expires, the plaintiff may apply to the Court to renew the summons. The ratio decidendi of the case of Baulk v Irish National Insurance Co. (1969) I.R. 66, is the fact that the Statute of Limitations would defeat any new proceedings which might be necessitated by the failure to grant the renewal sought and would thus constitute "other good reason" and accordingly moved the Court to grant the renewal; furthermore the defendants had been aware from the very beginning, of the plaintiffs intention to sue them. This case is on all fours with Baulk's case. Accordingly the order of Murnaghan J. was reversed, and the orig- inal summons was renewed from the date of this judg- ment." Dissenting "judgment by Fitzgerald J.

[McCooey v Minister for Finance and McGeough; Supreme Court; O Dalaigh C.J. and Budd J. per the Chief Justice, Fitzgerald J. dissenting; unreported; 16th December 1971.]

Conditional order for prohibition against the Special Criminal Court refused. Application for an Order of Prohibition against the Special Criminal Court established by Part 2 of the Offences against the State Act, 1938, which is provided for by Article 38, Section 3, of the Constitution. A proclamation made by the Government in May 1972 brought Part 5 into effect, and an order creating sched- uled offences was subsequently made. The applicant was charged in the District Court with one scheduled offence and with two unscheduled offen- ces. Under Section 45 of the Offences against the State Act, 1939, the District Justice, if he received a direction to that effect from the Attorney-General, had no alter- native but to send the applicant forward for trial to the Special Criminal Court, whether the offence was indict- able or not, which he did. Section 46 makes the same provisions in respect of non-scheduled offences, pro- vded the Attorney-General certifies in writing that the ordinary courts are, in his opinion, inadequate to secure the effective administration of justice and the preser- vation of public peace and order. The giving of the certificate does not involve an adjudication, and is not an exercise of the judicial power. Furthermore the applicant's constitutional rights under Article 40 have not been infringed, in so far as there is an appeal provided to the Court of Criminal Appeal from the decision of the Special Criminal Court. It follows that the existence of the Special Criminal Court is not an infringement of any constitutional right. The application for a conditional order of prohibition was consequently refused. [State (Bollard) v Special Criminal Court; Kenny J.; unreported; 20th September 1972.] Plaintiffs heavy truck involved in accident near Thomastown, Co. Kilkenny, on 30th January 1967. The truck was driven at night on a narrow road, and, to avoid oncoming traffic, the driver was compelled to pull in on extreme side of the road. The verge gave way under the weight of the truck, arid the left front wheel sank to the ground to axle level. The resultant damage cost the plaintiff £453.75 in repair to the truck and towage, which he seeks to recover from defendant Council. Before this, near the spot where the accident occurred, a trench had been opened near the road by the Department of Posts and Telegraphs to lay a co- axial cable. After the cable had been laid, the trench had been negligently filled in. The work of restoning the highway had been accomplished by departmental ser- vants, and not by the County Council, who had only re-surfaced the road. In interfering with the road surface, the Department were relying on their own statutory power. Sections 6, 7, 10, 18 of the Telegraph Act 1863 are fully quoted. Section 18 states that the Department may with all convenient speed, complete the work, fill in the ground - 257 Local Authority not liable if Department of Posts and Telegraphs does not make good the surface of a road after laying a cable.