The Gazette 1993

APRIL 1993

GAZETTE

pendent Newspapers together with a claim form contained in one ofthe relevant news- papers. The three defendants were prosecuted for variously promoting, distributing and sell- ing material relating to a lottery, contrary to s.21 of the 1956 Act. On case stated to the High Court Murphy J held ([1989] IR 722) that 'Scoop' did not constitute a game of skill and was a lottery within the meaning of s.2 of the 1956 Act. On appeal to the Supreme Court, the defendants did not assert that the game was one of skill, but asserted that it was not a lottery since it was not a requirement that participants purchase a newspaper in order to compete in the game. HELD by the Supreme Court (O'Flaherty, Egan and Blayney JJ) dismissing the appeal: (1) the essential attributes of a lottery were: (a) thedistribution of prizes; (b) that this was to be done by means of chance; and (c) there there must be some actual contribution made by the par- ticipants, or by a substantial number of the participants. Dicta in Reader's Digest Asso- ciation v Williams [1976] 3 All ER 737 and Imperial Tobacco Co Ltd v Attorney General [1981] AC approved; (2) (Egan and Blayney JJ; O'Flaherty J dissenting) it was not suffi- cient for the defendants to argue that for some participants the game did not constitute a lottery; and although not every participant was required to purchase a newspaper in order to take part in the game, it was suffi- cient that a substantial number did actually purchase a newspaper in order for the game to be classed as a lottery for the purpsoes of s.2 ofthe 1956 Act. The applicant sought judicial review of the termination of his traineeship in the Garda College by the respondent. The termination arose out of a series of incidents on a football outing from the Garda College. An investiga- tion of the incidents was made, and other students alleged in statements that the appli- cant had assaulted one student, threatened to assault another and had to be restrained. None of these statements were made avail- able to the applicant, but he accepted during the investigation that he had consumed about seven pints of Guinness and that arising from this there had been some incidents with other students and a misunderstanding, but that a full investigation would indicate that these had been exaggerated out of all proportion. The applicant was informed that a report would be made to the respondent Commis- sioner but was not told that a recommenda- tion was made that his traineeship be termi- nated. In the High Court, Flood J granted the relief sought: [1992] ILRM 699. On appeal HELD by the Supreme Court (Finlay CJ and Egan J; O'Flaherty J dissenting) affirming the High Court: (1) judicial review lay to quash the Commissioner's termination ofthe appli- cant's traineeship, since such power to termi- nate arose from the statutory powers con- tained in the 1988 Regulations, which were made under s.14 of the 1925 Act; and while Beirne v Garda Commissioner Supreme Court 30 October 1992 GARDA SIOCHANA - TRAINEE - TERMINATION OF TRAINING ASSIGNMENT - WHETHER FAIR PROCE- DURES ADOPTED - WHETHER AMENABLE TO JUDI- CIAL REVIEW-WHETHER DECISION BASEDON CON- TRACT OR STATUTORY POWERS-Police Forces Amal- gamation Act 1925, s.14 - Garda Siochana (Admissions and Appointments) Regulations 1988

the 1988 Regulations empowered the Com- missioner to lay down conditions of contract for trainees, including the power to terminmate for misconduct, this power could not be separated from the statutory basis on which it rested; (2) in the circumstances, the termination of the applicant's traineeship had not been in accordance with fair proce- dures, as he was not given an opfxjrtunity to deal with the statements from the other stu- dents nor was he aware that he was liable to have his trainesship terminated arising from the investigation of the incidents. Per O'Flaherty J (dissenting): judicial review did not lie because the termination arose from a breach of the contract terms between the respondent and the applicant, and no ques- tion of discretion arose. Curust Financial Services Ltd and Anor v Loewe-Lack-Werk Otto Loewe GmbH & Co, KG and Anor High Court, 3 July 1992; Supreme Court 2 November 1992 INJUNCTION - INTERLOCUTORY - EXCLU- SIVE MANUFACTURING AND DISTRIBU- TION AGREEMENT-WHETHER IN BREACH OF EUROPEAN COMMUNITY LAW - WHETHER DAMAGES ADEQUATE REM- EDY - Treaty of Rome, Article 85 Since the 1960s, the plaintiffs (Curust) had an exclusive manufacturing and distribution agreement for the State with the first defend- ant (Loewe), a German company, in relation to Loewe Rust Primer. Loewe supplied cer- tain raw materials wich were then mixed by Curust and put in tins. In 1986, because of changes in the manufacturing process, a new agreement provided that Loewe would sup- ply the finished product in its entirety, that this would then be tinned and distribued by Curust. It was envisaged that Curust would recommence manufacturing at some stage when it complied with the new process re- quirements. In July 1990, a price agreement was entered into by the parties, but in Octo- ber 1990 disputes arose and Loewe pur- ported to terminate all agreements between the parties. However, Loewe continued to supply raw materials to the plaintiffs until December 1991, the date on which the price agreement was to have terminated. In early 1992, the plaintiffs recommenced manufac- ture of Loewe Rust Primer through another company, without permission from Loewe, in breach of the 1986 agreement. In June 1992, the plaintiffs discovered that the sec- ond defendant had begun selling the Loewe Rust Primer under the label Durabond. It commenced proceedings seeking to restrain the defendants from acting in breach of the 1986 agreement, and applied for interlocu- tory injunctions. In the High Court HELD by Barron J granting the relief sought: (1) since the defendants had raised the issue of the validity of the 1986 agreement having regard to Article 85 of the Treaty of Rome, the plaintiffs were required to establish a fair question on this, and they had done so, albeit on the basis of a bare averment that the trade in rust primer was slight in intra-Community terms; (2) damages would not be an adequate remedy for the plaintiffs and they were thus entitled to an interlocutory injunction to pre- serve the status quo ante. On appeal HELD by the Supreme Court (Finlay CJ, O'Flaherty and Egan JJ) allowing the appeal: (1) the trial

1941, s.28 - Criminal Justice Act 1951, s.2 The applicant had been charged with a number of indictable offences, involving steal- ing and malicious damage to property. With his consent, he was tried summarily in the District Court. He was convicted and sen- tenced to three terms of one year's imprison- ment in respect of three ofthe charges, two of the terms to run consecutively. The trial judge imposed these sentences in purported exercise of powers in s.2 of the 1951 Act, which empowers the District Court to try summarily certain indictable offences, in- cluding the offences with which the appli- cant was charged. However, the applicant sought judicial review on the ground that s.5 of the 1884 Act limited the District Court to imposing a sentence of three months on a young person tried summarily for an indict- able offence. 'Young person' was defined by s.9 ofthe 1884 Act, as amended by s.28 ofthe 1941 Act, as a person between the age of 15 and 17. The applicant fell into this age cat- egory. In the High Court O'Hanlon J granted the judicial review and quashed the sen- tences, holding that they were ultra vires s.5 of the 1884 Act. On appeal HELD by the Supreme Court (Finlay CJ, O'Flaherty and Egan JJ) affirming the High Court: s.5 of the 1884 Act constituted a specific enactment establishing a very definite and important right for young persons, and since s.2 of the 1951 Act conferred a general jurisdiction on the District Court without reference to the 1884 Act, the maxim generalia specialibus non derogant applied; and it followed that the special provision in s.5 ofthe 1884 Act, whose continued'validity had been recog- nised by the amendment effected by s.28 of the 1941 Act, had not been impliedly re- pealed by the general provision in s.2 of the 1951 Act; and s.2 ofthe 1951 Act could not therefore be regarded as an optional jurisdic- tion which could be exercised by a court of summary jurisdiction over young persons who came within the terms of the 1884 Act and accordingly the sentences imposed in the instant case were ultra vires. Dicta in Seward v 'Vera Cruz' (1884) 10 App Cas 59 approved. Flynn v Denieffe, Independent Newspapers pic and Eason & Son Ltd Supreme Court 15 December 1992 GAMING AND LOTTERIES - PRIZE GAME - 'SCOOP' - BOARD GAME DISTRUBUTED TO ALL HOUSEHOLDS IN STATE ON BEHALF OF NEWSPAPER PROPRIETOR - UNNECESSARY TO PURCHASE NEWSPAPER TO OBTAIN PRIZE-WHETHER CONSTITUTING LOTTERY - Gaming and Lotteries Act 1956, ss. 2, 21 The second defendant, Independent News- papers, was the proprietor of a number of newspapers distributed in the State. In 1989, game cards bearing the name 'Scoop' were distributed to all households in the State, accompanied with publicity material an- nouncing that th is was 'the world's fi rst news- paper hoard game', that 'Scoop' amounted to a series of games and that the chances of winning prizes in the game were increased if persons played the game in all three newspa- per titles under the control of Independent Newspapers. In order to win a prize, partici- pants were required to move a number of places on the game board indicated by the board itself, then answer a general knowl- edge question and return the card to Inde-

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