The Gazette 1985

SEPTEMBER 1985

GAZETTE

other Court of Justice decisions, he is himself doing that which he claims allowing an appeal would be, i.e. ''acting contrary to both the letter and the spirit of Article 177." With respect to Mr. Justice Walsh's statement (on page three of his judgement) that there is no appeal against a judge's decision to state a case, I would query the correctness of this, especially since the Lisney case. The relevant part of s. 52(1) of the Courts (Supplemental Provisions) Act 1961 is as follows:- '. . . and may, (without request) refer any question of law arising in such proceedings to the High Court for determination'. There is no implied or express prohib- ition on an appeal against such a decision by the judge. It may also be noted that the remedy of mandamus is available to an applicant in the event of a refusal by a judge to state a case: (Delaney, 'The Administration of Justice in Ireland'). Connected to this problem is the judge's reference to Article 34 of the Constitution on page five. The question of what is a decision within the meaning of Article 34.4.3 has been approached tangentially in a number of previous cases: The People (A-G.) -v- Fennell, (No. 2) w - on the question of the accused's sanity, and in the case of re. McGovern " - on an administrative dir- ection to an officer of the court. Mr. Justice Walsh here seems to say that the definition of a 'decision' is: '. . . an order having any legal effect upon the parties to the litigation.' Is legal effect now to be the sole constitutive element? Doubt is cast on this by s. 21 of the Eleventh Interim Report of the Committee on Court Practice and Pro- cedure, 1976: "The extent of the jurisdiction of the Supreme Court has been considered in the judgements of that Court on The State (Browne) -v- Feran 12 and Vella -v- Morelli". In the latter case it was held that by virtue of the pro- visions of Article 34, all decisions of the High Court, including what in former times were considered to be non-appealable discretionary orders, were subject to an appeal to the Supreme Court." I agree with the Committee in stating that 'decision', within Article 34 does not merely have the meaning of 'having legal effect', as under Mr. Justice Walsh's strictly limited definition. The combination therefore of Article 34, the European Communities Act - i.e. 'neces- sitated' - and the Treaty itself, allows the limited form of appeal established by the Court of Justice, subject to the power of the Oireachtas to implement legislation prohibiting such appeals. •

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Footnotes: 1. [1963] E.C.R. 1. 2. [1974] Ch. 401. 3. [1972] C.M.L.R. 401. 4. [1962] C.M.L.R. 1. 5. [1971] C.M.L.R. 403. 6. See footnote 3. 7. [1981] LL.R.M. 289. 8. [1982] LL.R.M. 390. 9. [1973] E.C.R. 1175.

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10. [1940] I.R. 453. 11. [1971] I.R. 149. 12. [1967] I.R. 147. 13. [19681LR.il.

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