The Gazette 1985

MARCH 1985

GAZETTE

Solicitor attended at the District Court Office with a stamped Notice of Applica- tion to the District Court under Section 12 of the Housing (Private Rented Dwellings) Act 1982. A return date of 24 November 1983 was obtained. The Housing (Private Rented Dwellings) (Amendment) Act 1983 was enacted on 13 July 1983 and became operative on 2 August 1983 (S.I. No. 221/1983). On 3 October 1983 the landlord's Solicitor notified the tenant of the landlord's intention to proceed to the District Court and the Solicitors served the Notice of Application by registered post on 10 October 1983. The Notice of Declaration' of Service was entered in the Court Office on 12 November 1983. Application was made to the District Justice on 18 November 1983 to decline jurisdiction pursuant to Section 5(6) of the 1983 Act which states " n o Application may be made under Section 12(1) of the Act of 1982 after the commencement of this Section". Application was made for a Case to be stated to the High Court on whether the Applicants were entitled to proceed under the 1982 Act in the District Court or confined to such rights as are given them under the 1983 Amendment Act. The question the Court had to decide was what construction should be placed on Section 12(1) of the 1982 Act which states — " T he Landlord or the Tenant of a dwelling . . . may apply to the Co u r t ", and on Section 5(6) of the 1983 Act which states — " N o Application may be made under Section 12(1) of the Act of 1982". The Court had to decide when the Appli- cants had "applied". Was it when the stamped Notice was given back with the return date inserted by the Clerk for service, when one month's Notice of Intention to Apply had been given under Section 12(5) of the 1982 Act or when the matter actually came on for hearing in Court? The Court referred to the District C o u r t ( H o u s i n g ( P r i v a te R e n t e d Dwellings) Act 1982) Rules of 1982 which set out the appropriate F o rm for Applica- tion. The Landlord argued that the Actions taken on 7 July 1983 were sufficient to ground an Application. They also argued that the District Court had seisin of the Case at that time and that the removal of the Case from the District Court to a Lay Tribunal by the 1983 Act was an unconstitutional interference in the administration of justice. The Court H E LD it did not have to decide on the constitutionality of the 1983 Act or any part of it. HE LD . The meaning and intention of Section 5(6) of the 1983 Act is to halt in their tracks any Applications which have not come on for hearing before the District Court at the time of coming into operation of that Act and to compel the parties to resort to the Tribunal or Rent Officer as appropriate. Under Section 12 of the 1982 Act the only document vi

needing to be served is a "Notice of Inten- tion to Make an Application" as provided in the 1982 Rules of Court. The Application to the District Court might be regarded as made, at best, when the landlord's Solicitors gave Notice of Intention to apply by service of that Notice on the Respondent in compliance with Section 12(5) of the 1982 Act and at worst when the Application was listed for hearing by the Court. In either event the landlords were out of time. The District Justice had to decline jurisdiction. Folio Homes Limited -v- Edmond Abbott- High Court (per O'Hanlon J.). 2 February 1984 - unreported. Eugene Tormey Part III of the Extradition Act 1965 is not invalid having regard to the provisions of the Constitution. The Plaintiff had raised a plea in the High Court that Part III of the Extradi- tion Act 1965 was invalid, having regard to the provisions of the Constitution. This plea was rejected by Finlay P. in the High Court, and the Plaintiff appealed to the Supreme Court. He challenged the constitutional validity of Part III on six different grounds, and the Supreme Court dealt with each one in turn. 1. The Plaintiff claimed that the law procedure and practice relating to the interrogation, detention and trial of persons accused of politically related or terrorist offences in Northern Ireland fell short of the minimum requirements for criminal trials in this State, and that Part III was accordingly inconsistent with Article 40 of the Constitution. Finlay P. had heard expert evidence on this point in the High Court, and held that the law and procedures in Northern Ireland did not fall short of minimum requirements of a constitutionally valid trial in this State. The Supreme Court accepted his finding. They went on to point out, however, that if it were shown in a particular case that Part III was being used for a purpose or in a m a n n e r i n c o n s i s t e nt with t he c o n s t i t u t i o n a l r i g h t s of a n individual, the Courts would be bound to refuse to give effect to Part III. 2. The Plaintiff had claimed that his delivery to the R.U.C. in Northern Ireland, an area in which there existed a s h a rp sectarian a nd political conflict, which had led to armed conflict and insurrection, constituted a failure to extend to him the protections he was entitled to under Article 40 Section 3 of the Constitution. Again, the Supreme EXTRADITION — THE CONSTITUTION

Rules must be read subject to the above Rule and the period of ten days specified in Rule 38 of the 1967 rules may be enlarged under the present Rule 13 of the 1948 Rules. HE LD . There is no substance in the contention that the Circuit Court has been deprived of jurisdiction merely because the Order sending the two accused forward for trial was not trans- mitted within the specified period of ten days as the defect is remediable by obtaining the necessary enlargement of time in the District Court which should be forthcoming save where it would unfairly prejudice the accused. In c o n s i d e r i ng t he s i g n i ng of documents by affixing thereon a rubber stamp the Court again considered the judgment of Ga v an Duffy P. in the above case wherein he held that signature by a rubber stamp was as valid as a signature by a mark but pointed out that proof that the stamp was affixed by the District Justice might be called for by a person entitled to call for proof, such evidence to be given by the Justice himself or by someone who can swear to the making of the particular signature by the District Justice. The validity of a similar signature was considered in The State (McCarthy) -v- Governor of Mountjoy Prison, (20 Oc t o b e r, 1967, u n r e p o r t e d) where O'Dalaigh C.J., giving the unanimous decision of the Court, said (where no evidence had been given suggesting that the signature was applied by anyone other than by the Justice) " In such circumstances it is, in my opinion, proper to apply the maxim omnia praesumuntur esse rite el colemniter acta donee probetur in contrarium ... there is no distinction in principle between using a pen or pencil and using a stamp where the impression is put upon the paper by the proper hand of the party signing". HE LD . The rubber stamp signature of the District Justice shall be deemed a good signature unless and until it is shown that it was not affixed by him. The Court held that failure to send to the Circuit Court within ten days the Order sending the accused forward for trial did not ipsofacto deprive the Circuit Court of jurisdiction, and that the signing of Orders by means of a rubber stamp is, until the contrary is shown, a valid signature. The People (Director of Public Prosecu- tions) -v- Patrick McCormack and David Dunne - Supreme Court (per Henchy J.) nem. diss.). 20 July. 1984. Sean McMullin LANDLORD AND TENANT Application to District Court after passing of Housing (Private Rented Dwellings) Amendment Act 1983, — time of applica- tion. On 7 July 1983, the landlord's