The Gazette 1977

DECEMBER 1977

GAZE1TE

instructed and given leave to amend the Notice of Appeal by striking out all stated grounds and substituting a new and single ground that the h e a r i ng b e f o re the Lay Commissioners was invalidated by the f act that the two Lay Commissioners who conducted that hearing were the two Lay Commissioners who had earlier certified under Section 25 of the Land Act, 1936, that the lands were required for the relief of congestion in the immediate neighbourhood. It was not suggested that the two Lay Commissioners were in any way actuated by bias or that they went outside the evidence given at the hearing. Counsel's argument was that they left themselves open to the suspicion of bias, suspicion that they might have brought to the hearing opinions or preconcept i ons unfavourable to the Land Owner which they might have formed when dealing with the material for the purpose of the issue of the Certificate. Counsel complained of a situation in which actual bias might reasonably be suspected. Bu t l er J. ru l ed t hat notwithstanding this point the hearing was not invalidated. An Appeal against Butler J.'s ruling was made to the Supreme Court. Held (per Henchy J.) that it was not necessary to decide whether the h e a r i ng by the two Lay Commissioners was against Natural Justice as the composition of the Tribunal was consciously and knowingly accepted by Counsel for Dr. Corrigan and it was settled law that if with full knowledge of the facts alleged to constitute disqualification of a member of the Tribunal the party expressly or by implication acquieses at that time in that member's taking part in the hearing and in the decision, he will be held to have waived the objection on the grounds of disqualification which he might otherwise have had. This was a waiver of a right by conduct in the couise of the trial. The litigant cannot blow hot and blow cold by concealing a complaint of that nature and hoping that the Tribunal will decide in his favour when reserving to himself the right, if the Tribunal gives an adverse decision, to raise the complaint of disqualification. A party who knowingly and willingly accepts the jurisdiction of a Tribunal notwithstanding his knowledge of a valid objection to its constitution is deemed to have waived that objection and is estopped

from later raising that objection on appeal. It was also not necessary to decide whether the hearing by the two Lay Commissioners was against Natural Justice as the practice has been d i s c on t i nued by the Land Commission and in any event, as there was uncontrovertable evidence as to congestion, the remitting of the c a s e to two o t her Lay Commissioners for a fresh hearing would be merely a postponement of the inevitable. Laurence Corrigan v The Irish Land Commission — Full Supreme Court — Separate judgments delivered by Henchy J., Griffin J., and Kenny J. — Unreported — 29 July, 1977. The plaintiff, a non-practising Anglican husband, was married to a Catholic wife in a Catholic Church in London in September, 1962. There were four children of the marriage — three girls and a boy. M. (born 1963), G. (born 1965), T. (born 1968) and A. (born 1972). All the children were brought up as Catholics. The husband, 35 years of age, worked as a foreman. Since his marriage, the husband had lived at six different addresses in London. In July, 1973, the wife and the four children went to her father's house in Ireland, and the husband paid the fares. The wife then informed the husband that she did not intend to return to England. The husband met his father-in-law in Ireland in September, 1973, and told him that his relationship with his wife was over. He then returned to England and never subsequently got in touch with his wife and children. The husband subsequently associated in London with another married woman with four children. The husband of the other woman obtained a decree of divorce against his wife in May, 1974, naming the husband in this case as co-respondent. In July, 1974, the other woman changed her name to that of the plaintiff. GUARDIANSHIP OF INFANTS Aunts awarded custody of four children following death of mother, in preference to father.

RECENT IRISH CASES Summaries ofjudgments prepared by John Buckley, Colum Gavan Duffy, Rory McEntee and Michael Staines.

ESTOPPEL BY WAIVER Land required by Land Commission to relieve congestion — objection he a rd by the s ame Lay Commissioners who earlier certified land required for relief of congestion — Objection dismissed by Appeal Tribunal — Appeal to Supreme Court — against natural justice for two Commissioners who signed Certificate to hear objection — This not raised before Lay Commissioners — waived objection. Dr. Corrigan, an Irish doctor practising in Canada purchased lands in Meath and hoped to retire there. Within days of completion of the purchase the Land Commission served a Statutory Notice of Inspection intimating that their Inspector would inspect the lands for the purpose of reporting as to their Compulsory Acquisition. Some mon t hs later the two Lay Commissioners certified that the land was required for the relief of congestion in the immediate area. Following this Certificate a provisional list of land issued relating to Dr. Corrigan's holding and he entered an objection. His solicitors were notified of the date of hearing and of the identity of the Commissioners who would hear the objection. The Commissioners who heard the objection were the same two Commissioners who certified that the land was required for relief of congestion. Dr. Corrigan and his advisers were aware of this fact at all times. The hearing proceeded without objection by Counsel for Dr. Corrigan as to the composition of the tribunal. Uncontroverted evidence that the lands were required for relief of congestion was furnished by the Land Commission and the objection was dismissed. An Appeal was made to the Appeals Tribunal on grounds which did not include the claim that the Commissioners were disqualified by Natural Justice from hearing the objection by reason of their having signed the Certificate. On the morning of the hearing before the Appeals Tribunal new Counsel was

The wife died in October, 1975, and the three defendants, aunts of the children, were all sisters of the wife. The two eldest children, M. and G. (both girls) had been living with the 21