The Gazette 1978

Occupier Quarry — Blasting vibrations, noise and dust — Liability of occupier's lessor - Occupier and lessor held liable in damages - (1977 No. 6215P — Costdlo J. - 4/5/78). Patterson v. Murphy. ORDER Declaration Discretion — Resolutions of trade union affecting rights of plaintiff — First resolution invalid but second resolution valid — No useful purpose served by declaring first resolution invalid - Declaration refused — (1976 No. 5632P - Finlay P. - 15/3/78). Rodgers v. Irish Transport A General Workers Union. PASSPORT Issue Infant — Natural mother of illegitimate infant applying on behalf of infant for passport - Decision of Minister refusing passport — Right of infant to travel outside State - Personal right under Constitution subject to welfare of infant — Minister's decision quashed on certiorari - (1978 No. 50 SS - Finlay P. - 29/5/78). M. v. Minister for Foreign Affairs. PATENTS Invention Micro-organisms — New substance — Edible protein — Application refused by Controller in regard to organisms themsdves as distinct from process for production —Appeal dis- missed as organisms not shown to have been manufactured as distinctfrom grown — (1976 No. 435 Sp - McWilliam J. - 25/5/78). Ranks Hovis v. Controller of Patents. Register Amendment — Registration obtained by registered proprietor as result of "con- vention" application — Amendment sought by proprietor to alter priority of patent as if application not "convention" application — Sealing of patent and register in accord with proprietor's original intention — Proprietor not a "person aggrieved" within s. 65 of Patents Act, 1963 - Extent of power to amend examined - Claim to amend rejected (159/72 - Supreme Court - 11/5/78). Beecham Group Ltd. v. Controller of Patents. Recruit - Initial probationary period of two years — Power of Commissioner to dispense with services — Power exercisable if Com- missioner considers a recruit physically or mentally unfit or not tikdy to become efficient and well conducted - Termination valid - (1976 No. 389 SS - McWilliam J. - 14/3/78). Delaney v. Garvey. POLITICAL PARTY Registration New party — Statutory criteria — Standards to be applied by registrar — Name of party — Electoral Act, 1963 - (19/78 - Supreme Court - 11/5/78). Lofhis v. The Attorney General. PRACTICE Appeal Facts - Assessment - Trial by judge with- out jury - Judge's finding of fact based on choice between conflicting oral testimony of witnesses - Distmction betweenfindingsoffact by trial judge and inferences of fact drawn by him from facts proved or admitted - (204/77 - Supreme Court - 21/7/78). Northern Bank Finance v. Charlton. POLICE Dismissal

Appeal Stare decisis — Earlier decision of Supreme Court decided per incuriam — Decision not a binding authority — Principle of stare decisis not involved in departure from earlier decision - (205/77 - Supreme Court - 14/11/78). The State (Harktn) v. O'Malley. Declaration Discretion — Resolutions of trade union affecting rights of plaintiff — First resolution invalid but second resolution valid — No useful purpose served by declaring first resolution invalid — Declaration refused — (1976 No. 5632P - Finlay P. - 15/3/78). Rodgers v. Irish Transport A General Workers Union. Judgment Stay ofexecution - Actionon bill ofexchange - Judgment for plaintiff - Stay of execution refused - (19/77 - Supreme Court - 21/7/78). Gerrit Van Delden v. Seafield Gentex. Lis pendens Vacate — Opposition by party who obtained registration - Sale of land - Plaintiff pur- chaser's action for specific performance — Plaintiff failing to pay deposit - Express term enabling defendant to rescind — Rescission by defendant - High Court exercising jurisdiction to order vacation of lis pendens registered by plaintiff - (1978 No. 475 IP - McWilliam J. - 20/10/78). Culhane v. Hemon. Procedure Adoption - Secrecy — Natural mother seek- ing custody from intending adopters - Intending adopters seeking order pursuant to s. 3 of Adoption Act, 1974 - Concealment of identities of applicant and notice parties — (1978 No. 290 Sp - Finlay P. - 19/9/78). G. v. An Bord Uchtdla. Time limit Extension - Arbitration clause in insurance contract - Termjequiring dispute to be re- ferred to arbitration within specified period - Applicant in breach of term — Period extended — Arbitration Act, 1954, s. 45 — (1976 No. 272A - Hamilton J. - 8/12/76). Walsh v. Shield Insurance Co. Ltd. Enforcement - Whether a criminal matter — limited function of a judicial nature — Con- stitution —Punishment not unconstitutional -.(1977 No. 363 SS - McMahon J. - 6/3/78). The State (Fagan) v. Governor qf Mountfoy Prison. Legal Adviser Access - Power of Minister to prohibit access by specified, solicitors - Power con- ferred by statutory instrument under ss. 12 and 13 of General Prisons (Ir.) Act, 1877 - Instrument authorising Minister to exercise power where necessary in interests of security of prison or "of the State" - Instrument ultra vires Act of 1877 - (1976 No. 1821P - McWilliam J. - 21/6/78). Incorporated Law Society v. Minister for PRISON Discipline

NATURAL JUSTICE - continued

Ejectment - Defendant not given opportunity to give evidence or make defence — Order for possession - Order Kt aside on certiorari - (1976 No. 113 SS - Doyle J. - 2/10/78). The State (Crothers) v. Kelly.

NEGLIGENCE Fanlt

Apportionment - Vehicle collision - Jury attributing 60% of blame to defendant - Groas disproportion in light of evidence - Defendant's appeal allowed - 25% blame attributable to defendant - (155/77 - Supreme Court - 21/7/78). Casserley v. Coras Iompalr Eireann. 1 •ulowuer Trespass - Plaintiff's cattle poisoned by defendant's yew tree - Sudden collapse of defendant's boundary wall - Damage not reasonably foreseeable - Action dismissed - (1976 No. 2535P - Gannon J. - 23/1/78). Walsh v. Kilkenny County Council. Occapter Trespasser - Hotel - Plaintiff ipjured at 4 a.m. in staff yard at back of hotel, haying left front of hotel at 3.30 ajn. on way home - Plaintiff's entry on premises as invitee — Invitation spent - Accident not reasonably foreseeable - Judgment for defendant - (182/77 - Supreme Court - 27/1/78). O'Keeffe v. Irish Motor Inns Ltd. U L . ovbh Sale by description - Additive for turkey feed — Plaintiff buyer ordering chemical for mix- ing with feed prepared by plaintiff - Defendant seller supplying chemical in pure form - Turkeys dying after eating plaintiff's feed - Diluted chemical safe for mfainj in feed — Held on facts that pure chemical ordered — Defendant not negligent in supplying pure chemical to experienced maker of turkey feed - (1977 No 3258P - Finlay P. - 1/5/78). Bokmds Ltd. v. Trouw Ireland Ltd. Collision - Defendant removing plaintiff's damaged yacht from moorings - Yacht H.majoH farther at new moorings - FaQure of defendant to establish howfarther damage occurred - Measure of plaintiff's damages - Reasonable cost of repair - (1976 No. 2375P - Finlay P. - 13/2/78. Ross v. Dunphy. NEGOTIABLE INSTRUMENT BB of exchange Action on bill — Counterclaim and set off - Defendant claiming damages for plaintiff's breach of contract - B91 being price of goods sold by plaintiff - High Court refusing to abjudicate on counterclaim or to grant stay of execution of judgment for plaintiff - Defendant's appeal dismissed - BID equivalent to cash - (19/77 - Supreme Court - 21/7/78). Gerrit Van l)eldeh v. Seqfield Gentex. Dust — Explosions - Lime processing and Masting at quarry - Nuisance abated - Damages awarded — Injunction refused - (1977 No. 1561P - McWilliam J. - 14/4/78). Malone v. Cbgrennane Lime Co. 8 NUISANCE Oecupler

Justice. RATES Hereditament

Valuation - Assessment - Machinery to be excluded - Meaning of "machinery" - Brewery - Fermenting tanks and storage vessels — Facts found by Circuit Court judge