The Gazette 1986

GAZETTE

JULY/AUGUST 1986

When applying this construction, an interpretation which will give due and harmonious effect to any potential conflicting provisions should be adopted where possible. The Court accepted that if article 34.3.1 is read literally and in isolation from the rest of the Constitution it would support the Appellant's claim. But the Court did not accept this as the correct interpretation and in support of its decision to interpret the Constitution in a general context the Court referred to the inter-relation between Article 34.3.1 and Article 34.3.4 which has the effect that whilst the District Court or the Circuit Court may be given sole jurisdiction to determine a particular case the full jurisdiction of the High Court could still be invoked by proceedings such as Habeas Corpus, Certiorari, Prohibition, Mandamus, Injunctory or Declaratory Actions. Furthermore, excepting those indictable offences which Parliament considered to be the most serious (notably treason, genocide, certain offences under the Offences Against the State Act 1939, murder, attempted murder and piracy) all indictable offences are triable in the Circuit Court where there is provision for Appeal in all cases where a conviction arises. Such an Appeal to the Court of Criminal Appeal invokes the original jurisdiction of the High Court. The Appellant did not contend that he was prejudiced by the mere fact of having to stand trial in the Circuit Court but it was noted that it would be very difficult for this argument to be successfully advanced. Accordingly the Appeal was dismissed and the Order of the High Court affirmed. Philip Tormey -v- Ireland and The A ttorney General (per Henchy J.), 16 May, 1985 — unreported. Felicity Hogan EMPLOYMENT Temporary workers supplied by an Employment Agency: Are they employees of the 'Client' Company? The complainant in this case sought to prosecute the Defendant for certain alleged breaches of the Holidays (Employees) Act 1973. The prosecution was brought in the District Court against the Defendant as the employer of Philomena McNulty ("the employee"). The matter was referred to the High Court by way of consultative case stated. The question raised by the case stated was as follows— "Was Philomena McNulty an employee within the meaning of the Holidays (Employees) Act 1973 of the P.M.P.A. between the 25 February 1981 and 7 October 1983?" The employee worked for the Defendant at the material time as a temporary typist. She was engaged by the Defendant under the terms of an agreement between it and the Alfred Marks Bureau (Ireland) Ltd. ("the Bureau"). Under the terms of that agreement, the Defendant paid hourly charges to the Bureau in respect of the work done by the employee. The Bureau was declared to be the employer and was responsible for the payment of wages and deductions of taxes. The Defendant was

CONSTITUTIONAL LAW Article 34 - Indictable Offences Triable in the Circuit Court - Whether Appellant is entitled as of right to Trial in the Central Criminal Court - High Court Jurisdiction Considered. The Appellant was sent forward for trial to the Dublin Circuit Criminal Court on a charge of fraudulently converting to his own use a cheque for £9,376 contrary to Section 20(1 )(iv)(a) of the Larceny Act, 1916. As the Law now stands he has no right to trial in the Central Criminal Court and he claimed that withholding from him the right to a trial in that Court was unconstitutional. The charge against the Appellant was not a minor offence and therefore must be tried before a Jury. The legislation presently governing the right of transfer to a trial is Section 31 of the Courts Act 1981 which repealed Section 6 of the Courts Act 1964. The 1964 Act allowed a right of transfer from the Circuit Court to the Central Criminal Court for any person who had been sent forward for trial to the Circuit Court. Procedure for transfer was by way of application to the relevant Judge of the Circuit Court and he exercised his discretion as to whether to allow the application. In repealing Section 6 of the 1964 Act, Section 31 of the 1981 Act abolished the right of transfer to the Central Criminal Court. Instead a person who was sent forward for trial to a Circuit Court sitting other than within the Dublin Circuit could apply for a transfer to the Dublin Circuit. The Appellant claimed that this removal from him of an opportunity of having a trial in the Central Criminal Court had the effect that Section 31 of the Courts Act 1981 (insofar as it repeals Section 6 of the Courts Act 1964) was inconsistent with Article 34.3.1 of the Constitution which provides that "the Courts of the first instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal". In making his decision Henchy J. stated that the use of the plural "Courts of first instance" both in Article 34.2 and Article 34.3.1 shows that the High Court is not to be the only Court of first instance: Further- more Article 34.3.1 cannot be read literally as to do so would bring this Article into conflict with other constitutional provisions. He referred specifically to Article 34.3 which debars the High Court from determining the constitutionality of a statutory provision declared constitutional by the Supreme Court in a reference under Article 26. Also Article 34.4.6 provides generally that the High Court cannot entertain any question which has been previously determined by the Supreme Court. This Article amounts to a recogni- tion of the fact that the High Court is not expected to be a suitable forum for hearing and determining at first instance all justicable matters. Henchy J. reiterated that despite the unambiguous terms of Article 34.3.1 it cannot be given its literal construction and the more fundamental rule of constitu- tional interpretation, that the Constitution must be read as a whole should prevail.

not obliged to give reasons for its decision to grant planning approval; 6. the learned trial Judge erred in law in failing to hold that the principles of res judicata applied to the first-named Respondent's decision of 20 May, 1983 having regard to its earlier decision of 25 February, 1982 in that both decisions involved the common central issue namely the developmental and environmental and town planning consequences of permitting the érection of the single storey dwelling in the garden at the rere of a house in Temple Road, Dublin." A further ground agreed was to the effect that the original outline permission was abandoned by bringing the other applications for detailed planning permission. The Prosecutor's argument that where an individual has obtained outline permission and does not pursue the standard course in respect of it — applica- tion for planning approval within the outline permission — but a different form of permission in a more detailed, or indeed, in another way " he abandons his existing permission". The Court held that this argument was inconsistent with the wording of Section 29 Sub Section 1 of the 1976 Act and Section 2 of the 1982 Act which set time limits on the durations of planning permissions. Noting the cases of Slough Estates Ltd. -v- Siough Borough Council (No. 2) [1949] 2 All ER 988 and Pioneer Aggregates Ltd. -v- Secretary of State [1984] 2 All ER 58, the Court held that in this case there was no question of abandon- ment. In relation to Ground 1, the Court approved the view of the trial Judge that the holding of Barrington J. in The State (Pine Valley Developments) Ltd. -v- Dublin County Council [1982] ILRM 169, that a planning authority in considering an application for approval was confined "within the four walls of the outline permission granted in respect of the same lands" was correct. On Ground 4, the Court held that the Bord had a statutory duty to state its reasons and had done so. On Ground 5, the Court noted that no authority had been cited to support the proposition that it was a principle of natural justice that the reasons for decisions should be given by administrative bodies. Ground 6, the Court approved the view of the High Court that the principle of res judicata could be applied to a decision of the Bord relying on the views of Gavan Duffy J. in Athlone Woollen Mills Ltd. -v- Athlone Urban District Council [1950] IRI and noted that on the facts the trial Judge had rejected the application of the principles so as to benefit the Prosecutors and agreed with the decision of the High Court. The Court accordingly dismissed the appeal.

The State (at the Prosecution

of James F.

Kenny A Dermot Hussey) -v- An Pleanala A Patrick Meenan -

Bord

Supreme December

Court (per McCarthy

J.), 20

1984.

John F. Biickley

vi