The Gazette 1985

JULY/AUGUST

1985

G A Z E T T E

Constitution of a number of statutory provision referred to in the Schedule to that Notice. The Schedule was as follows: 1. Section 5 of the Guardianship of Infants Act, 1964 as amended by Section 15 of the Courts Act, 1981. 2. Section 23 of the Family Law (Main- tenance of Spouses and Children) Act, 1976 as amended by Section 12 of the Courts Act, 1981. 3. Sections 1 and 2 of the Family Law (Protection of Spouses and Child- ren) Act, 1981. The Notice was not served on the Defendant, but the Attorney General appeared by Counsel to argue for the constitutionality of the statutory provisions. The Plaintiff in her Special Summons made a number of claims against her husband: sole custody of their three infant children and contribution for their maintenance and education (Section 11, Guardianship of Infants Act, 1964); payments of maintenance sums for herself and the three children (Section 5 and 7, Family Law (Maintenance of Spouses and Children) Act, 1976); exclusion of the Defendant from the Family Home (Section 2(1)), Family Law (Protection of Spouses and Children) Act, 1981; exclusively, or alternatively a share of, ownership of the family home (Section 12, Married Women's Status Act, 1957); protecting the family home from the Defendant's conduct (Section 5, Family Home Protection Act, 1976) and an injunction restraining the Defendant from use of the home as a residence and from access to herself and the children. When the Defendant did not appear to answer the claim, the Plaintiff issued the Notice pursuant to Order 60. It was argued on behalf of the Plaintiff that the various Sections were unconstitutional because they purported to deprive the High Court of jurisdiction to hear the claims in the originating Summons. She also submitted arguments to show that the Sections were not unconstitutional and did not deprive the High Court of such jurisdiction. This caused difficulty to the Attorney General in the adversorial system of adjudication. As to the Plaintiffs application for an order under Section 11 of the 1964 Act, it was clear that under the provisions of that Act both before and since the amendment by the Courts Act, 1981 such application could be made to the Circuit Court. Since the 1981 Act, the District Court now had a limited jurisdiction under the Section which it did not have under the 1964 Act. HELD:— nothing in Section 5 of the 1964 statute as amended in 1981 expressed a withdrawal or withholding from the High Court of jurisdiction to entertain applications or to make orders under Part II of of that Act. The argument of the Plaintiff that Section 5 as amended of the Guardianship of Infants xix

(continuing then to set out verbatim sub paragraphs (a) to (e) of Sub Section 3 of Section 16.") It was contended by the Defendants that the authorisation of Mr. McClean was defective in that it did not indicate "the matters" in respect of which the authorised officer might act under the Section. The Defendants were convicted in the District Court of an offence of failing to comply with the requirement of an authorised officer and each was fined £50. On appeal to the Circuit Court the Circuit Court Judge stated a case to the Supreme Court to determine the following question:— "Is the authorisation which is Document No. 5 attached to this case stated a valid and effective authorisa- tion within the meaning of Section 16 of the Consumer Information Act 1978?" The S u p r eme Co u rt ( G r i f f in H e d e r m a n a nd M c C a r ty J . J . ) unanimously agreed that the question should be answered "No". Per Hederman J. "the authorisation of Mr. McClean merely recited all the powers which could be given or which it was possible to give to any authorised officer pursuant to the provision of Sub Section 3 . . . it is not sufficient to merely recite the powers given to an authorised officer. The authorisation must also indicate the matters in respect of which he may then act. Per McCarthy J. — the authorisation must specify "the matters in respect of which he may act under this Section. In my view matters in this context means the particular investigation or investiga- tions." Per Griffin J. — Section 16(2) "was in my view designed or intended to ensure that in the authorisation there should be specified the events, topics or subject of contention or complaint (to use neutral words) which the authorised officer was required to investigate for the purpose of ascertaining whether there was or was not compliance with the provisions of the Act on the part of the person or firm being investigated. Director of Consumer Affairs -v- Joe Walsh Tours Limited and Samuel Lombard - Supreme Court, 20 July 1984- unreported. John Buckley CONSTITUTIONAL LAW High Court jurisdiction — family law. The Plaintiff, the wife of the Defendant, issued a notice pursuant to Order 60 of the Rules of the Superior Courts, 1962 on the Attorney General requiring the determination by the court of issues as to the validity under the

Act restricted or removed the jurisdiction of the High Court to hear claims under Part II of that Act was unsustainable, and there was no ground for declaring Section 5 to be invalid having regard to the provisions of the Constitution. With regard to issue No. 2 in the Schedule, as expressed in Section 23 of the Family Law (Maintenance of Spouses and Children) Act, 1976 in its amended form and the entire 1976 Act there was not any wording in the Section or the Act which might be interpreted as restricting or removing the jurisdiction of the High Court in relation to such matters. The statute taken as a whole was an Act conferring on the courts of first instance of limited local jurisdiction a jurisdiction in relation to such matters and as such there was no ground for declaring the new Section 23 of the 1976 Act as amended in the 1981 Act to be invalid having regard to the Constitution. Neither in Section 1 or 2 nor in the entire of the Family Law (Protection of Spouses and Children) Act, 1981 was there any wording which might be construed or interpreted as restricting or removing any jurisdiction of the High Court in relation to the matters the subject of the statute. The statute taken as a whole was an Act conferring on the courts of first instance and limited local jurisdiction a jurisdic- tion which they did not, and otherwise than by statute could not, have or have had in relation to such matters. Such being the nature, purpose and extent of the statute there was no ground for declaring the new Act of 1981 nor in particular Section 1 and 2 of that statute, the Family Law (Protection of Spouses and Children) Act, 1981, to be invalid having regard to the provisions of the Constitution. The burden of the Plaintiffs complaint was that it was not within the competence of the Oireachtas under the Constitution to withhold or withdraw from the jurisdiction of the High Court any issue which was justiciable, nor to restrict the jurisdiction of the High Court nor to deprive it of jurisdiction by statute. The provision in the Constitution at Article 34.3.1 that the High Court be invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal, ensures that no wrong need go without a remedy. This appeared to be the principle upon which the judgment of the Supreme Court in R.D. Cox -v- Owners of the m.v. Fritz Rabe (unreported Supreme Court, 1st August, 1974) was founded. He would reject the contentions advanced on behalf of the Attorney General as wrong in law that the Oireachtas may, under Article 36 of the Constitution, confer upon and withdraw from the High Court or confer to the exclusion of the High Court upon other