The Gazette 1978

section that a separation agreement entered into after the date of the coming into force of the Act of 1976 does not amount to an election, even if that were possible, to forego the benefit of the provisions of the Act but effectively constitute no more than a factor to be taken into account by the Court in determining an application brought before it under the Act. (4) A fortiori, the operation of the Act could not be affected by a separation agreement or other document in the nature of the consent in this case entered into before the passing of the Act unless there was an express provision to the contrary in the Act. (5) It is not possible to contract out of the Act by an agreement made after the Act came into force or by an agreement entered into before the legislation was enacted. (6) It was clear from the whole structure of the Act that its purpose is to deal with the situation of the parties at the time the proceedings are brought under the Act and the primary function of the Act is to ensure that proper and adequate maintenance is available in accordance with the provisions of the Act to spouses and children. The basic question to be decided is whether at any given time there is a failure by one spouse to provide reasonable maintenance for the support of the other spouse and for any dependant children of the family of the spouses. HJ). and PJ>. — Supreme Court (per Walsh J. with O'Higgins CJ . and Griffin J.) - 8 May 1978 - unreported. CONTRACT Illegal Contraet — Onus on Defendant to establish illegality. The sole issue arising in this case on the question of liability was as to whether the contract admittedly made between the Plaintiff company and the Defendant for the sale and purchase of potatoes was an illegal contract or not. The Contract had undoubtedly been broken by the Defendant without any justification and must, unless it were held to be an illegal contract, give rise to an award for damages for its breach. The facts

are irrelevant to the legal principles enunciated. Held: (per Finlay P.) that: (1) As a matter of law, the onus was on the Defendant to establish to the courts satisfaction that, as a matter of probability, the contract was, at the time of its formation, an illegal contract. (2) If'the contract in question was one which, on the apparent intention of the parties at the time of its formation, could be and would be carried out in a legal fashion then, even though one of t he p a r t i e s, name ly t he Defendant, in reality intended to carry it out in an illegal fashion it was enforceable. (3) If, on the other hand, the acknowledged and accepted intention of both of the parties at the time of the formation of the contract was that in the event of the happening of certain events the contract would be carried out by a smuggling operation then it would be unenforceable and contrary to public policy and could not be upheld by the court. (4) The onus being on the Defendant, he had failed to discharge it and to establish to the court's satisfaction as a matter of probability that the agreed understanding between him and the Plaintiff was that the contract should, in the happening of certain events, be carried out by a smuggling operation. (5) That the appropriate measure of damages was that provided by section 51 of the Sale of Goods Act 1893 and on the particular facts, damages were awarded against the Defendant in the sum of £59,218. Whltecross Potatoes (International) Limited v. Raymond Coyle — High Court (per Finlay P.). 23 February, 1978 - unreported. • Note: The Report in the May issue of Thomas Fortune v. P. E. Jacob and Co. Ltd. was incorrect in so far as the last sentence of the third paragraph of the Report read "There was no lorry in question." Instead the sentence should have read: "There was no wooden strip on the lorry in question." This mistake is regretted.

means of the Defendant and/or the Plaintiff as the court considered reasonable. 3. Pursuant to Section 5 of the Family Law (Maintenance of Spouses and Children) Act 1976 an order directing the Defendant to pay her periodical payments in support of Plaintiff and of each of the dependant children of the Plaintiff of such amount and at such times as the court might consider proper. 4. Pursuant to Section 5 (2) of the Family Home Protection Act 1976 an order directing the Defendant to pay to the Plaintiff such amount as the court considered proper to compensate the Plaintiff and the two younger children who were claimed to be dependant children for the loss arising from the deprivation of their residence in the family home. The Family Law (Maintenance of spouses and Children) Act 1976 and ihe family Home Protection Act 1976 were enacted after the court proceedings and the consent in 1971- 1973. Application was made to Mr. Justice Doyle on the net point of the validity of the Defendants' claim that the Plaintiff was in effect estopped from pursuing whatever rights she might be entitled to under the Acts in question by reason of the consent and that the matters in issue might be regarded as res judicata. An Appeal was brought to the Supreme Court from the decision of Mr. Justice Doyle. Held: per Walsh J. (nem. diss.): (1) The claim by the Plaintiff in this case fell within the provisions of Section 5 of the Family Law (Maintenance of Spouses and Children) Act 1976. (2) It was somewhat difficult to say, and unnecessary at the moment to decide, what was the legal effect of making the consent in 1973 part of the order of the court where one essential part of the consent was that the petition for divorce should stand dismissed. (3) Section 8 of the Family Law (Maintenance of Spouses and Children) Act 1976 makes express provision for the position of an agreement in writing ( i n c l ud i ng a S e p a r a t i on Agreement) entered into after the commencement of the Act. The types of agreement referred to would include the consent in the present case if it had been entered into after the commencement of the Act. It was clear from the