The Gazette 1978

FRAUD Remedy

"misconduct" by employee - High Court without jurisdiction - (1977 No. 169 Sp. - Hamilton J. - 8/2/78). Brewster v. Burke.

DAMAGES - continued

Rescission - Contract between defendant and third party - Contract induced by fraud of plaintiff acting as agent of defendant in transaction with third party — Restitutio between defendant and third party not possible — Rescission of contract not appropriate - Defendant entitled to damages from plaintiff for tort of deceit - (204/77 - Supreme Court - 21/7/78). Northern Bank Finance v. Charlton. Common Market — Community law — Interpretation — Court exercising discretion to refer question to Court of Justice of the European Communities notwithstanding desire of parties that High Court should decide correct interpretation — Treaty of Rome, Article 177 - (1976 No. 194 - Costello J. - 30/6/78). Pigs A Bacon Commission v. McCarron Ltd. HIGH COURT Discretion Justification - Wife's absence from matrimonial home caused by husband's conduct - (1978 No. 330 Sp - Finlay P. - 24/10/78). K. v. K. Infant Custody — Irish parents married in England - Return to Ireland with children — English court awarding care of children to mother - Irish domicii of father not abandoned - Jurisdiction of Irish court hot ousted — Custody awarded to mother - (1978 No. 336 Sp. - Doyle J. - 5/7/78). White v. White. Maintenance Estoppel - Settlement in 1973 of matrimonial proceedings - Terms of settle- ment including provision for maintenance of wife by payment of capital sum— New claim by wife in 1977 under Act of 1976 seeking further relief in regard to maintenance —Wife not estopped frommaking new application — Decision of Doyle J. (21/7/77) affirmed - Family Law (Maintenance of Spouses & Children) Act, 1976, s. 5 - (20/78 - Supreme Court - 8/5/78). Matrimonial home — Wife's application for declaration as to his estate or interest — Husband contributing to purchase of house - Husband remitting money to wife from abroad - Legal estate vested in wife - Husband entitled to beneficial interest in 49% of property - Presumption of advancement rebutted by evidence - (1978 No. 155 Sp. - Finlay P. - 19/10/78). M. v. M. Property Matrimonial home - Wife's application for declaration as to her estate or interest - No contribution by wife to purchase of house - Housework and care of children of marriage not grounds for claim to property — (1978 No. 330 Sp. - Finlay P. - 24/10/78). K. v. K. D. v. D. Property HUSBAND AND WIFE Desertion

No. 2646P - McWilliam J. - 6/6/78). Taylor v. Moremiles Tyre Sendee. AHessmcnt Measure - Demolition of building - Plaintiff's adjoining business premises des- troyed — Damages to be market value at date of destruction, not case of reinstatement - Appeal fromHigh Court (30/7/76) allowed - (158/78 - Supreme Court - 5/5/78). Munnelfy v. Calcon Ltd. Assessment Yacht - Reasonable cost of repairs - Sale by plaintiff after collision - Sale at undervalue - (1976 No. 2375P - Finlay P. - 13/2/78). Ross v. Dunphy. DEED Loss Evidence - Secondary evidence of contents — Draft marriage settlement - Existence of exe- cuted deed established - Draft admitted in evidence - (1976 No. 2395P - Costello J. - 20/7/78). Savage v. Nolan. Publication - Qualified privilege - Malice - Defendant believing that plaintiff's solicitor had demanded, on behalf of plaintiff, money with menaces - Letter of complaint about solicitor's conduct sent by defendant to Law Society - Mention of plaintiff's name by defendantfat letter not evidence of malice by defendant - (1973 No. 3067P - Finlay P. 15/3/78). Hartery v. Wdtrade Ltd. DISTRICT COURT Jurisdiction Minute book - Summary charge — Failure to enter complaint fat minute book no bar to hearing complaint — Rules of the District Court, 1948, r. 83 - (1977 No. 447 SS - Doyle J. - 30/1/78). DJ'J*. v. Gill. DOMICIL Origin Choice - Irish domicO of origin - Husband married in England and living there 20 years - Return to Ireland with family - Domicii of origin not abandoned - (1978 No. 336 Sp - Doyle J. - 5/7/78). White v. White. EMERGENCY POWERS Charge Venue — Person fat custody under Act - Charge to be made in court — Emergency Powers Act, 1976, s. 2 - (1975 No. 288 SS - Finlay P. - 13/2/78). The State (Brennan) v. Mahon. Charge Venue — Whether person in custody under Act - If so, charge to be made in court - Emergency Powers Act, 1939, s. 30 - Suspect not in such custody - The State (Brennan) v. Mahon distinguished - (1978 No. I l l SS - Costello J. - 10/3/78). The State (Walsh) v. Maguire. EMPLOYER Employee Redundancy - Appeal to High Court from Redundancy Appeal Tribunal - High Court bound by decision of tribunal on matter of fact - Decision that there was no 6 DEFAMATION Ubd

EMPLOYMENT Termination

Police recruit - Initial probationary period of two years - Recruit dismissed by Com- missioner — Power of dismissal excercisable if Commissioner considers recruit not likely to become efficient and well conducted - Termination valid - (1976 No. 389 SS - McWilliam J. - 14/3/78). Delaney v. Garvey. Termination Reasonableness — Accountant — Emergency in employer's business during plaintiff employee's holiday - Failure of plaintiff to obey defendant employer's order to return to work - Reasonable order - Dismissal of plaintiff's action for wrongful dismissal - (1973 No. 3067P - Finlay P. - 15/3/78). Hartery v. Welltrade Ltd.

EQUITY Advancement

Husband and wife - Husband giving money to wife — Presumption of advancement rebutted by evidence - (1978 No. 155 Sp. - Finlay P. - 19/10/78). M. v. M.

EVIDENCE AdmtotibUty

Judgment - Two extempore and unreported judgments of High Court - Note of second judgment taken by interested party and tendered as evidence - Stare decisis - (1977 No. 477 SS - Doyle J. - 12/6/78). The State (Curran) v. Irish Land Com- mission. Admissibility Will — Construction - Phrase used by testator having clear meaning — Extrinsic evidence not admissible to raise doubt as to intention of testator - Succession Act, 1965, s. 90 - (162/75 - Supreme Court - 20/1/78). Rowe v. Law. Convictions Sentence - Hearsay evidence of previous convictions - Opportunity to admit or deny accuracy of evidence — Formal proof required in absence of admission - (1977 No. 507 SS - Gannon J. - 6/6/78). The State (Stanbridge) v. Mahon. Estoppel Matrimonial proceedings — Wife being applicant - Divorce between parties settled by consent in 1973 - Consent incorporated in order of court dismissing action upon terms - Terms providing for maintenance of wife - New claim by wife in 1977 under Act of 1976 seeking further relief in regard to main- tenance - Wife not estopped frommaking new application - Decision of Doyle J. (21/7/77) affirmed - (20/78 - Supreme Court -

8/5/78). D. v. D. Lost deed Secondary evidence — See Deed. Onus on proof

Illegality - Onus not discharged by party alleging illegality - (1976 No. 3761P - Finlay P. - 23/2/78). Whitecross Potatoes v. Coyle.

INFANTS Custody See Husband and Wife - See Adoption.