The Gazette 1985

JANUARY/FEBRUARY 1985

GAZETTE

on 25 July, 1983. The subject matter of their appeal being their claim for entitle- ment to export sales relief. Questions of law arose at the hearing of the Appeal before the President of the Circuit Court. At the conclusion of the hearing when he found in favour of the Revenue the representative of the Prosecutor did not express dissatisfaction with the d e t e r m i n a t i on as b e i ng erroneous on a point of law. On the same date upon return to his office the Prosecutor's representative realised his omission. The following morning there was delivered on behalf of the Prosecutor a letter addressed to the President of the Circuit Court expressing dissatisfaction with the appeal as being erroneous in point of law and that they required that a case be stated for the opinion of the High Court. The County Registrar replied, on behalf of the President of the Circuit Court, stating that the president had no discretion in the matter. A conditional Order of Mandamus was obtained. The Revenue argued against the making absolute of the Order. The following issues of law arose. (a) Whether the Prosecutors complied with the provisions of Section 428( 1) of the Income Tax Act, 1967 incorporated to apply to these proceedings by Section 430 of the same Act wherein it is provided: "Immediately after the determina- tion of an appeal by the special Commissioners the Appellant or the Inspector, if dissatisfied with the determination as being erroneous in point of law, may declare his dissatisfaction to the C omm i s- sioners who heard the appeal." (b) If there was non-compliance with that sub-section as applied is it to be construed as mandatory and default to be fatal to the bringing of an appeal by case stated or is it directory only? (c) Whether there was compliance by the Prosecutors with the provisions of Section 428, sub-section 2 of the same Act as applied which provides: " T he Appellant or Inspector as the case may be having declared his dissatisfaction may within twenty- one days after the determination by notice in writing addressed to the Commissioners require the Com- missioners to state and sign a case for the opinion of The High Court thereon." (d) Whether there were questions of law appropriate to be sent forward to The High Court for the expression of its opinion. The main argument made by Counsel on behalf of the Revenue Commissioners against the making absolute of the

Conditional Order was directed to the question arising at (a) and (b) above. The High Court H E LD that it approved of the principles upon which the decision of The Court of Appeal is founded in Regina -v- The Inspector of Taxes, fix-Parte Clarke. [1974] 1 Q.B., page 220 which construed the word "immediately" as meaning with all reasonable speed considering the circum- stances of the case and that the require- ment for the expression of dissatisfaction immediately after the determination of the case was directory and not mandatory and accordingly, if the expression had not been given immediately the right of appeal would not be lost. The Court further stated that the distinction between the Income Tax Acts apparently applicable in England at the time of the decision and the provision of the Income Tax Act 1967 do not affect by way of distinguishing those principles. As to issue (c) the fact that having regard to the terms of the letter delivered to the County Registrar and the reply received, he held that this should be deemed to be compliance with the requirements of requesting from the County Registrar the preparation by the Judge of the case stated. As to item (d) he held that points of law do arise. HE LD: As a matter of law the Prose- cutor is entitled to have a case stated for the d e t e r m i n a t i on of these issues submitted to The High Court. The State at the Prosecution of Multiprint Label Systems Limited -v- The Honourable Mr. Justice Thomas Nevlon [1984] ILRM 545. John O'Connor COMPULSORY ACQUISITION Claim for compensation arising out of Compulsory Purchase Order made by Dublin County Council — Basis of valuation — land designated in the County Dublin Development Plan, 1972 — Development potential considerably restricted by zoning provision — Value of land dependent on validity of such restric- tion and whether the County Council is entitled to refuse the claimant a connection for sewerage and planning permission. Dublin County Council made a Compulsory Purchase (Dodder Valley/ Knocklyon/Ballyroan) Order in 1973 for road widening. A claim was made for compensation by J o hn Meenaghan in respect of acquisition of parts of his lands at Firhouse Road on foot of the C.P.O. Arbitration proceedings were heard on 3 November, 1982. The Arbitrator stated his award in the form of a case stated to the High Court, on the basis that the applicant is entitled to receive, in any event, £400,000 for the acquisition of his lands, and depending on the answers to the questions of law posed by the case

alter twenty minutes. He was then asked to permit the doctor to take a sample of blood. He refused. He was later charged with an offence under Section 13(3) of the Road Traffic (Amendment) Act 1978. The charge sheet however alleged an offence of failing to permit the designated medical practitioner to take a sample of urine or at the option of the Defendant to provide a specimen of blood. The case stated raised four questions: 1. Was the requirement made of the Defendant by Sergeant Patrick Sexton made in accordance with the provisions of Section 13(1) of the Road Traffic (Amendment) Act 1978 in all the c i r c ums t a n c es deposed sufficiently in accordance with the provisions of that Section to r e q u i r e c o m p l i a n c e by t h e Defendant therewith? 2. If the said requirement was so sufficient does the failure or refusal of the Defendant in the circum- stances constitute an offence of which the Defendant might be convicted in view of the charge as framed on Ballyfermot Charge Sheet 291/82, a copy of which is annexed to the case and in respect of which the charge as framed in accordance with the provisions of Section 13 of the Road Traffic (Amendment) Act 1978. 3. Should I convict the Defendant of an offence contrary to Section 13(3) of the said Act of 1978. 4. If so ought I to amend the Charge Sheet prior to so doing? On the case stated it was held that on the evidence the Defendant was not misled in the station as to his options. Secondly, the charge sheet should he amended by the District Justice by substituting the wo rd " u r i n e" for " b l o o d" and vice-versa and that the Defendant should be convicted of the offence. Garda Christopher Moloney -v- John Stanley - High Court (per Lynch J.). 2 April, 1984 - unreported. Michael Staines REVENUE Circuit Court determination of Tax Appeal — requirement to express dissatisfaction immediately — Questions of Law arose — Prosecutors dissatisfaction declared one day later — whether declared "immedi- ately" after determination — whether provision for immediate expression of dissatisfaction directory or mandatory — Circuit Court asked to state case — whether Circuit Court bound to do so. — Income Tax Act 1967 Section 428 and 430. The Prosecutors (Multiprint) appealed against the Ap p e al C omm i s s i o n e r s' determination of their Corporation Tax

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