The Gazette 1979

JULY-AUGUST 1979

GAZETTE

Held: (per McWffiiam J.) that: (1) The contract of insurance was null and void; (2) In absence of evidence on behalf of the second Defendant to prove the mis-statements were innocent the misrepresentation was fraudulent; (3) An order could not be made in this action directing money lodged in Court in another action to be paid out but it would appear contrary to natural justice that the Plaintiffs could not apply to have ownership determined in the action in which the money was lodged in Court by mistake or fraud. Duncan Stevenson McMillan and John Jervols v. Patrick Carey and W. H. Ryan Limited — High Court (per McWilliam J.) 18 December 1978 — unreported. PRIVATE INTERNATIONAL LAW Proper Forum to Decide Custody of Children This case arose from the removal in March 1979 of three infant children from the custody of their mother (the Plaintiff) in Alberta, Ca n a d a, by their father (the Defendant) who brought them to Ireland. The Plaintiff and Defendant were married in Calgary, Alberta, in April 1965, the Plaintiff being a native of Alberta and the Defendant being a native of Derry. There were three children of the marriage, born in May 1966, May 1968 and April 1970 respectively. The Defendant was a university lecturer and the Plaintiff was employed in data processing. During ffie course of the marriage the Plaintiff and the Defendant lived at first in Calgary, and later in New Mexico, USA, then in Durham, England, and then again in New Mexico. Matrimonial difficulties arose and by the year 1974 the marriage appeared to have broken down. The Plaintiff left the matrimonial home in New Mexico, taking the three child- ren with her, and returned to Alberta. She resided continuously in Calgary with the three children from that time up to the present. The Defendant continued to live in New Mexico and visited the children from time to time but they did not leave the jurisdiction

as if such vessel were within the limits of the original jurisdiction of the Court. This meant in relation to a County that it extended such juris- diction over the vessel as if it were lying or placed inside the County and not outside it. Held (O'Higgins C.J. and Henchy J.) that the first question in the Case Stated should be answered in the negative but that the second question should be answered in the affirmative. William Browne v. Donegal County Council - Supreme Court (per O'Higgins C. J. and Henchy J. with concurring judgments from Griffin, Parke and Kenny JJ.) — 9 February 1979 — unreported. by Defendant Company of wages paid annually declared "fraudulent" misrepresentation — recovery of monies paid Into Court by Underwriters on foot of void Policy, not decided. The Plaintiffs were members of Underwriters at Lloyds and brought the Proceedings as nominees of such Underwriters. The first Defendant was an infant who instituted proceedings against the second Defendant for injuries sustained at work. The Plaintiffs took over conduct of the proceedings on behalf of their insured (the second Defendant) on foot of their employer's liability policy and authorised a lodgment of £39,050 with a denial of liability. Prior to acceptance by or on behalf of the first Defendant of the monies lodged in Court the Plaintiffs ascertained that there had been substantial mis- statements by their insured (second Defendant) in respect of the amount of wages paid and as this infor- mation was the basis for the calculation of the premium, the Plaintiffs informed the second Defendant that the policy was void and they were accepting no responsibility for claims on foot of such policy. The Plaintiffs then instituted these proceedings against the first Defendant for an Order to have the money in Court in the action between the two Defendants paid out to the Plaintiffs and for declarations against the second Defendant that the policy was null and void and that the misrepresentation was fraudulent. MISREPRESENTATION Substantial mis-statement

O'Higgins C. J. traced the history of the Malicious Injury Code back to the Grand Jury (Ireland) Act 1836 which provided for the decision of contested applications for compen- sation by a judge sitting with a jury at the Assizes. This jurisdiction was transferred to the County Court by the Local Government (Ireland) Act 1898. The Malicious Injuries (Ireland) Act 1853 extended the code to all damage caused by persons engaged in unlawful assembly. There was a further extension by Section 515 of the Merchant Shipping Act 1894 to cases involving damage to vessels while afloat as a result of an unlawful assembly. The significance of Section 515 of the 1894 Act was that it provided for the recovery of compensation in respect of damage actually caused outside the County or District, by means of machinery, hitherto only used in respect of damage caused inside the County or District. O'Higgines C. J. then referred to Section 685 of the 1894 Act which provided as follows: "(1)Where any district within which any Court, Justice of the Peace, or other Magistrate, has juris- diction either under this Act or under any other Act or at Common Law for any purpose whatever is situate on the coast of any sea, or abutting on or pro- jecting into any bay, channel, lake, river, or other navigable water, every such Court, Justice or Magistrate, shall have jurisdiction over any vessel being on, or lying or passing off, that coast, or being in or near that bay, channel, lake, river, or navigable water, and over all per- sons on board that vessel or for the time being belonging thereto, in the same manner as if the ves- sel or persons were within the limits of the original jurisdiction of the Court, Justice or Magistrate. (2) The jurisdiction under this Sec- tion shall be in addition to and not in derogation of any jurisdic- tion or power of a Court under the Summary Jurisdiction Acts." O'Higgins C . J . found that Section 685 of the 1894 Act, which dealt with Courts having jurisdiction in districts situate on the coast of the sea or navigable waters, extended the jurisdiction of such Courts over any vessel lying or passing off such coasts