The Gazette 1992

GAZETTE

SEPTEMBER

1992

The respondent Minister had made an or- der under the 1974 Act approving a motor- way scheme by Dublin County Council. The motorway path included a number of pylons which the respondent Board sought to remove and relocate. The Board applied to the Minister pursuant to the 1974 Act for his consent to removal and relocation of the pylons. The Minister purported to grant such consent pursuant to s.10 of the 1974 Act, which authorises that consent may be given by the Minister to a statutory under- taker in relation to excavating any appara- tus in the motorway path. The applicants, householders beside which the pylons were to be relocated, sought judicial review of the Minister's consent on the grounds that it was ultra vires (i) in purporting to permit the respondent Board to perform an illegal act, namely to relocate the pylons without planning permission under the 1963 Act and (ii) in failing to comply with the princi- ples of fair procedures and natural justice. In the High Court Costello J granted the applicants a declaration that the Minister had acted ultra vires the 1974 Act in allow- ing a development wh ich was not exempted under the 1963 Act: [1989] IR 357. On appeal by the respondents HELD by the Supreme Court (Finlay CJ, Hederman and O'Flaherty JJ): (1) (per Hederman and O'Flaherty JJ; Finlay CJ dissenting) since s.8 of the 1974 Act prohibited a planning authority from granting permission for any development which is part of a motorway scheme under the 1974 Act, the 1974 Act should be regarded as a self-contained piece of legislation quite separate from the planning code; and thus it was not appro- priate to approach the instant case by con- sidering whether the respondent Board's actions were or were not exempt from the 1963 Act; and the trial judge had thus erred in finding that the Minister had acted ultra vires, so that the respondents' appeal on this ground would be allowed; (2) (per Finlay CJ, Hederman and O'Flaherty JJ): the principles of fair procedures and natural justice required the Minister, in exercise of his powers under s.10 of the 1974 Act, to consider the views of persons, such as the applicants, who might be directly affected by the proposal which the respondent Board had made to the Minister and, since this question had not been considered in the High Court, it remained for decision by the High Court. Per curiam: the requirements of fair procedures did not require a formal public notice, or an oral hearing for all objections, but would be satisfied if the Minister received and considered the gist of local objections. East Donegal Co-Op Ltd v Attorney General [1970] IR 317 and O'Brien vBordna Mona [1983] ILRM 314; [1983] IR 255 discussed. Per Hederman and O'Flaherty JJ: without expressing a final view, the Minister may have complied with the requirements of fair procedures in the instant case. Baxter v Horgan Supreme Court 7 June 1991 PRACTICE - COSTS - PARTNERSHIP - DISSOLUTION - COSTS OF LITIGATION INCURRED AFTER DISSO- LUTION - DISCRETION NOT TO AWARD COSTS OUT OF PARTNERSHIP ASSETS The plaintiff had begun High Court pro-

the ability of the IPU members to transfer engagements to the first applicant; and since such a limitation would amount to a regulation by law of the right to join asso- ciations or unions under Article 40.6.1 .iiof the Constitution, the section should not be interpreted as having imposed such a regu- lation by some form of implication; and so the first applicant was entitled to a declara- tion that it came within the terms of the 1975 Act. Gleeson v Feehan and O'Meara Supreme Court 20 June 1991 LIMITATION OF ACTIONS - ACTION BY PERSONAL REPRESENTATIVE FOR RECOVERY OF LAND WHETHER STATUTE BARRED - WHETHER SUBJECT TO SIX YEAR OR 12 YEAR LIMITATION PERIOD - STATUTE - INTERPRETATION - Statute of Limitations 1957, ss.13, 45 - Succession Act 1965, s.126 The plaintiff was the personal representa- tive of James Dwyer, who had died intes- tate in 1937, and of Edmund Dwyer, who had died intestate in 1971. Both were the registered owner s of two parcels of land which were the subject matter of the pro- ceedings. On Edmund Dwyer's death in 1971, the only person in possession of the land was his sister's son, and in 1975 he sold one parcel of land to the second defendant's predecessor in title and in 1978 sold the other parcel to the first defendant. In 1983, the plaintiff obtained grants of administration to the estates of James and Edmund Dwyer and he also instituted pro- ceedings by ejectment Civil Bill in the Circuit Court in 1983 against the two de- fendants. Judge Sheridan HELD that the proceedings were statute barred as they had been instituted beyond the six year limitation period in s.45 of the 1957 Stat- ute. On appeal to the High Court, Barron J stated a case for the Surpeme Court as to whether s.45 of the 1957 Statute applied. This required consideration as to whether the 12 year limitation period in s.13 of the 1957 Statute was applicable, in which case the proceedings were not barred. HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) finding the claim was not statute barred: s.45 of the 1957 Statute was, by its plain and ordinary meaning, a provision applicable to pro- ceedings by a person seeking an interest in a deceased's estate against a personal rep- resentative, but it was not appl icable to the instant case where proceedings were insti- tuted bythe personal representative against a stranger to the estate; and since the plain- tiff's action was essentially one to recover land based on a superior title, s.13 of the 1957 Statute was applicable. Dicta in Drohan v Drohan [ 1981 ] ILRM 473; [ 1984] IR 311 approved. Nolan and Ors v Minister for the Environ- ment and Electricity Supply Board Su- preme Court 10 July 1991 LOCAL GOVERNMENT - MOTORWAY SCHEME - REMOVAL OF ELECTRICITY PYLONS FROM MOTOR- WAY ROUTE AND RELOCATION OF PYLONS PUR- SUANT TO CONSENT BY MINISTER TO RELOCATE - WHETHERCONSENTULTRA VIRES-WHETHERPLAN- NINC PERMISSION REQUIRED FAIR PROCEDURES - WHETHER NOTICE OF INTENTION TO CONSENT TO RELOCATION REQUIRED - Local Government (Planning and Development) Act 1963 - Local Govern- ment (Roads and Motorways) Act 1974, ss.8, 10 - Constitution, Article 40.3

ceedings in 1976 seeking the dissolution of a partnership between himself and the de- fendant. The defendant denied a partner- ship, but the proceedings were compro- mised in 1977 by a consent order dissolv- ing the partnership. An account by the Examiner of all transactions was ordered, but various disputes arose as to whether certain transactions formed part of the part- nership. These disputes led to various High Court hearings, including a judgment of Carroll J that certain invoices produced by the defendant were forgeries (High Court, 21 February 1986). Further disputes be- tween the parties resulted in another refer- ence by the Examiner to the High Court. In relation to some of the items referred, Murphy J found in the defendant's favour, but he awarded the costs of the proceed- ings to the plaintiff (High Court, 28 May 1990). On appeal by the defendant against the award of costs HELD by the Supreme Court (Finlay CJ, McCarthy and Egan JJ) dismissing the appeal: while it is usual that in partnership actions the costs of accounts after dissolution are directed to be paid out of partnership assets, the trial judge has a wide discretion in the matter; and in the instant case, it was appropriate to take into account that the defendant was the partner responsible for keeping proper accounts and that he had failed to do so; and having regard to previous findings that the defend- ant had produced forgeries, the plaintiff was entitled to put the defendant on proof of each item relevant to the accounts; and while not every issue was decided in the plaintiff's favour, the trial judge had strong grounds for awarding the plaintiff the costs of the issues referred from the Examiner. Redmond v Ireland and Attorney General Supreme Court 18 July 1991 PRACTICE - DAMAGES - STAY ON AWARD - NO APPLICATION MADE IN HIGH COURT - APPLICA- TION FOR STAY TO SUPREME COURT - APPEAL ON LIABILITY AND QUANTUM - WHETHER SUPREME COURT SHOULD TAKE VIEW ON LIKELY OUTCOME OF APPEAL The plaintiff was awarded £49,969 dam- ages in the High Court in his action against the defendants in respect of injuries sus- tained in the course of employment. The defendants made no application to the trial judge for a stay on the award. The defend- ants appealed the decision to the Supreme Court on liability and quantum, and sought a stay on the High Court award. The Court ordered a payment of £15,000 be made, pending a determination on the question of a further stay. HELD by the Supreme Court (McCarthy and Egan JJ; Finlay CJ dissent- ing) declining to grant any further stay on the High Court award: (perMcCarthy J) the trial judge delivered a reasoned decision on liability which was not demonstrably wrong, and there was no substance in the appeal on quantum; (per Egan J) having reviewed the transcript, but without taking a final view, it was difficult to conceive that the findings of the trial judge on liability would be set aside and it was totally un- likely that there would be any reduction in damages. Per McCarthy J (Finlay CJ con- curring) the factors to be taken into account in applications for a stay include: (i) whether liability is in issue; (ii) a heavy onus lies on

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