The Gazette 1979

GAZETTE

SEPTEMBER 1979

because of a chronic and incurable failure to achieve efficiency. He had been warned from the beginning of his career that it was necessary to obtain a watchkeeper's certificate and he was well aware that he had signally failed to achieve the necessary efficiency to obtain such a certificate and that all the officers connected with him were satisfied that he would never qualify for that Certificate. (ii) He had been repeatedly told that because of his lack of skill and want of efficiency his chance of being kept on would disappear unless there was a dramatic improvement in his performance. When the decision was made to discharge him he was told he was about to be discharged, and it was directed that the discharge was not to take place for at least seven days so that he could make any representations he liked. (iii) Therefore he was fully informed of his proven lack of efficiency, he was given adequate opportunity of meeting the case for his discharge. The rule of "Audi

later, on 10 February 1978, the com- manding officer of the Naval Service directed the prosecutor's discharge. Two weeks later, on 23 February 1978, the prosecutor was brought before the commanding officer of the Naval Service at Haulbowline, and was told he was being discharged and the reason given for his discharge was that he had failed to acquire the necessary degree of efficiency. His commanding officer took steps to ensure that the decision to discharge was not implemented for at least seven days so that the prosecutor could make any representations he wished. He made no representations. The discharge came into effect on 5 March 1978. Some months later he instituted Certiorari proceedings to quash his discharge on the grounds that: (a) he was efficient; (b) he was not informed of the reason for his dis- charge until after his discharge; (c) he was denied natural justice through not being given an opportunity of knowing or dealing with the case against him. Held (per Henchy J.) that: (i) All of the evidence showed that the Prosecutor was discharged

Alteram Partem" was therefore properly observed. The Prosecutor argued that he should have been informed of the case against him and have been given an opportunity of meeting it before the decision to discharge him was first made on 10 February 1978. Further held (per Henchy J.), however, that the crucial step was not the decision to proceed to discharge him, but the actual discharge on 5 March 1978. The Prosecutor had the opportunity to be heard and had been given a fair chance to forestall the actual discharge. Accordingly the appeal of the Minister for Defence was upheld and Order of Certiorari discharged. The State (Duffy) v. Minister for Defence — Supreme Court (per Henchy J. with Kenny and Parke JJ.) — 9 May 1979 — Unreported. Summaries of judgments prepared by John F. Buckley, George Gill, Joseph B. Mannix, Franklin J. 0*Sulllvan, Michael Staines and edited by Michael V. O'Mahony.