The Gazette 1987

GAZETTE

MARCH 1987

The Revenue Commissioners -v- No. (101 ILTR 197) decided in the year 1965, Judge Ryan regarded this test as being "too artificial for Irish conditions". It was considered that a sufficient guide was suggested in Cavan Co-Operative Society (1917). 2 IR 608. "Husbandry presupposes a connection with land and production of crops or food in some shape." It was held that the activity in which the Appellants were engaged was husbandry: it was a development in modern farming. Accordingly, the Appellants in using the land for the purposes of rearing and fattening pigs and generally looking after their health and welfare were farming the lands. HELD: The decision of the Appeal Commission- ers was not correct in law and their question was accordingly answered in the negative. Knockhall Piggeries and Others and J. H. Kerrane, inspector of Taxes — High Court Iper Barrington J.) 2 May 1985, (1985) ILRM 655. Desmond Rooney BUILDING SOCIETIES Registration of change of Rules of Building Societies — Review of Building Societies Act 1 9 76 - Whether altered rules contravened Sections of the Building Societies Act. The Plaintiff Society altered its rules by Special Resolution to comply with a Statutory Instrument made by the Minister for Industry Trade Commerce and Tourism pursuant to the Mergers, Take-Overs and Monopolies (Control) Act 1978. The procedure for altering rules is provided for by Section 12 of the 1976 Building Societies Act and this Section also provides for an appeal to the Court against the refusal of the Registrar to register a proposed alteration of the rules. Under the terms of Section 12, the Registrar must register an alteration of the rules of the Society if he finds that they are in accordance with the Act. In this case the Registrar refused to register the proposed rules which provided for two categories of Director and different voting rights for different types of investor (member). The proposed rules provided for a procedure whereby investment directors would be appointed, removed and replaced by holders of investment shares and that similarly ordinary directors would be appointed, removed or replaced by holders of savings shares. The Registrar decided that these provisions were not in accordance with the statutory provisions and "in particular Section 10 of the Building Societies Act 1976". The Court held that these proposed rules in respect of different classes of Directors were not prohibited by the Act. Further in dealing with the management of the Society the proposed rules provided for the appointment of an alternate Director by a Director of the Society. It was held that these proposed rules were lawful.

The Court further held that in this particular case the proposed rules providing for the issue of shares which had only qualified or no voting rights or which provided that the voting rights attached to some shares could be more weighty than others was not in contravention of the Statute. This was so because the Statute particularly provided in Section 22(7) that certain Societies which complied with the provision of Section 22 (7)(b) could issue shares to which voting rights did not attach. The Court held that the Act of 1976 must be considered as setting out a general framework for Building Societies but does not purport to legislate in detail for the government of each Society. The Minister has extensive powers under Section 10 (Subsection 3), of the Act, allowing him the means of ensuring control. The Act was not intended, however, to burden the registrar of Friendly Societies with the type of power which is vested in the Minister, which is essentially power to be exercised to control policy. The Registrar has a function to the extent that when the Minister does prescribe some such regulation under Section 10 of the Act, the Registrar has a duty to perform as laid down in the Act, but otherwise his duty is to see that the rules made are not in conflict with the provisions of the Statute. The Court held that in the present case the Registrar's objections could not be sustained and that, in effect, he strayed into the field of policy which is reserved to the Minister. The appeal was dismissed and the order of the High Court confirmed. In the matter of the Building Societies Act 1976. The Irish Civil Service Building Society versus the Registrar of Friendly Societies (1985) IR 179. Frank O'Flynn GARDA COMPENSATION Garda Siochana (Compansatlon) Acts 1 9 4 1 - 1 9 4 6 - Statutory Interpre- tation — Casa Stated to Supremo Court — Whether In Assessing com- pensation for Financial Losa regard should bo had to a Ponaion already payable. The President of the High Court stated a case for the Supreme Court in the hearing of an action brought by the plaintiff against the defendant pursuant to the provisions of the Garda Siochana (Compensation) Acts 1941 — 1945 for personal injuries maliciously inflicted upon him in the course of the performance of his duties as a Member of the Garda Siochana in 1983. On the date the injuries were inflicted the plaintiff was 43 years old. As a result of his injuries he was discharged from the Garda Siochana in June, 1985. If the injuries had not been sustained and he remained a Member of the Garda Siochana he could have retired at any time between December, 1990 and April, 1997. In June, 1985 on retirement the plaintiff was awarded a pension of £5,993 per annum and a retirement gratuity of £11,823.00. If he had continued as a Member of the Garda Siochana until normal retirement he would have received a pension of 50% of his then

basic pay and a gratuity equal to one and a half times his basic pay. At the hearing before the President of the High Court the Defendant requested the Judge to take into consideration by way of deduction from the actuarial calculations of the loss of salary an actuarial calculation of the value of the special pension being paid to the plaintiff and that not to do so would be to compensate the plaintiff twice for his financial loss incurred. The plaintiff contended that the Pension should not be taken into account in deter- mining the actual financial loss suffered by the plaintiff. The question of law put by the President of the High Court for the opinion of the Supreme Court was whether in assessing the compensation payable to the plaintiff for the financial loss, he should have regard to the pension now payable to him and deduct the value of this pension from the loss 1. S.10, Paragraph 3 of the Act of 1941 requires the Judge to take into consideration the fact, if it be a fact, that the plaintiff was entitled under the relevant Acts and Statutory Orders and Regulations to a pension allowance or gratuity out of public funds in respect of the injuries which are the subject of the application. The word "shall take into consideration" in the statutory context in which they appear mean that they are to be included in the mathematical cal- culation and are not to be construed as simply a direction to consider the matter in the course of an intellectual exercise. 2. Accordingly if the earning power of the plaintiff was not in any way diminished it is clear that no compensation could be awarded under that heading. If his earning power is totally lost or simply diminished, then the compensation to be awarded should be the sum appropriate under that heading to the actual and prospective economic loss proved. 3. The answer to the question posed by the President of the High Court is that the value of the special pension should be deducted from the value of the economic loss proved. McCarthy J. dissenting, held that S.10 Sub-section 3 requires the Judge in fixing the amount of compensation to bear in mind the fact that the plaintiff is entitled to the special pension. It does not follow that the whole or any part of the annual sum or any capital value of the same should be deducted from the total sum assessed or from any item which goes to make up the total sum. The question from the President should therefore be answered by stating that in assessing the compensation payable not for financial loss but as a whole the Judge should take into consideration the fact that the plaintiff is in receipt of the special pension but should disregard its amount. Gerald O'Looney -v- The Minister for the Public Service. Supreme Court (per Waish J.) 14 December 1986. Eugene O'Sulllven proved. HELD:

iv