The Gazette 1994

JULY 1994

GAZETTE

Recent Irish Cases Edited by Ra ymond Byrne, BCL, LLM, BL, Lecturer in Law, Dublin City University The following case summaries have been reprinted f r om t he Irish Law Times and Solicitors Journal w i t h t he kind permission of t he publishers.

staff and officials of the gardaf provided that certain decisions should be deter- mined by the chairman of the conciliation council and the parties were deemed to have agreed to or accepted that provision. (4) It would not be appropriate for the court to interfere with a decision merely on the basis that the court would have raised different inferences and conclu- sions or that the court was satisfied that the case made against a decision was stronger than the case made for it. It was sufficient to state that it could not be said that the chairman's decision was an irrational de- cision in the teeth of common sense or flying in the face of reason. O'Keeffe v An BordPleanálal 1992] ILRM237approved. Reported at [1994] 1 ILRM 81 Damien Duff v District Judge Mangan: Supreme Court (Finlay CJ, Blayney and Denham JJ) 1 April 1993 judicial Review - Criminal Law - Certio- rari - Challenge to jurisdiction of District Court to try case - Refusal by justice to hold enquiry as to complaint - Conviction made without jurisdiction - Appeal to Circuit Court as alternative remedy - Ap- peal struck out - Right to be tried by due process of law - Whether certiorari lies when adequate alternative remedy inad- equately prosecuted - Exercise of discre- tion in granting remedy - Courts (No. 3) Act 1986 Facts The appellant appeared in the Dis- trict Court on 22 January 1986 to answer a number of summonses under the Road Traffic Act 1961. At the hearing the de- fendant's solicitor submitted that the sum- monses grounding the complaints, having been signed by a District Court clerk, were invalid and the court had no jurisdiction to hear the complaints. The district justice refused to accede to the submission and proceeded to convict the appellant. After a number of adjournments, pending a decision in the case of State (Clarke) v Roche the appeal was listed for 7 June 1988. However, as the appellant was only advised four days prior to the appeal he sought an adjournment which the State resisted and the appeal was struck out. On 28 November 1988 Johnson J granted the appellant leave to apply for certiorari on the grounds that: (i) at the date of the hearings the constitutionality of the powers of a District Court clerk to receive a complaint and issue a summons were queried and following the decision of the Supreme Court in State (Clarke) v Roche the procedure for commencing summonses in the District Court was al- tered by the Courts (No. 3) Act 1986 and it was submitted that the respondents had exceeded their jurisdiction in convicting

on foot of the summonses before them and (ii) four days' notice of the date of the appeal was inadequate and unconstitu- tional. On 13 March 1989 Lardner J refused the application for certiorari referring to the fact that the appellant did not attend the Circuit Court appeal and to the sub- mission by the State that the validity of summonses was a matter of defence. The appellant appealed to the Supreme Court. Held by the Supreme Court (Denham J; Finlay CJ and Blayney J concurring) in allowing the appeal: (1) The district judge erred in law, within jurisdiction in deter- mining that he could hear the case with- out an inquiry as to the complaints and summonses, but he exceeded his jurisdic- tion in then proceeding to hear the case. (2) Certiorari is a discretionary remedy which will be cautiously granted where there is an adequate alternative remedy which has been inadequately prosecuted. (3) In all the circumstances of this case which arose in the midst of developing law on the making of a complaint and the issuing of a summons it is appropriate to grant the order of certiorari a nd quash the orders against the appellant. Reported at [1994] 1 ILRM 91 McC. v McC.: High Court (Costello j) 22 June 1993 Conflict of Laws- Enforceability of foreign maintenance order in Ireland - Mainte- nance order capable of being varied un- der Hong Kong law in changed circum- stances - Whetherjudgment of Hong Kong court 'final and conclusive' Facts The plaintiff and defendant, having been married in England in 1961, were divorced in 1986 in the District Court of Hong Kong on the application of the plain- tiff wife. By ancillary order, a mainte- nance order was made for certain lump sums and periodical payments to be paid by the defendant to the plaintiff. The lump sums were paid as ordered, as were the periodical payments until 15 June 1989, when they ceased. The defendant, an Irish citizen, returned to Ireland and the plain- tiff instituted proceedings in the Eastern Circuit claiming arrears of maintenance. Themaintenance order could, under Hong Kong law, be varied retrospectively and the defendant raised its enforceability as a defence. By consent, this question was tried as a preliminary issue. It was decided in the Circuit Court that the Hong Kong order was enforceable in Ireland and the defendant appealed to the High Court against this decision. Held by Costello J in affirming the deci- sion of the Circuit Court and returning the matter for hearing in the Eastern Circuit:

The Garda Representative Association, v Ireland: Supreme Court (Finlay CJ, Egan and Denham JJ) 26 May 1993 Judicial Review - Garda Sfochána - Con- ciliation and Arbitration Scheme - Inten- tion of Garda Commissioner to incorpo- rate parading time in ordinary hours of work and re-roster 'special services' - Whether certain proposals within scope of conciliation council - Whether deci- sion made without or in excess of jurisdic- tion - Whether wrongful refusal to exer- cise functions - Purpose ofjudicial review proceedings Facts The chairman of a conciliation council established with regard to staff relations in the Garda Síochána ruled on 29 October 1987 that certain proposals contained in two circular letters of that year issued by and relating to the intention of theCommissioner oftheGarda Síochána (to incorporate parading time in the ordi- nary hours of work and to re-roster the 'special services', were not appropriate for consideration by the said conciliation council. The plaintiffs sought relief by way of judicial review and sought a declaration that the proposals contained in the two c i rcu I ars fel I w ith i n the scope of the scheme to provide for a conciliation and arbitra- tion machinery for members of the Garda Síochána. The plaintiffs also sought an order that the chairman of the council should decide that the proposals con- tained in the circulars were appropriate for discussion by the council. In a judg- ment delivered on 19 April 1988 ([19891 ILRM 1) Murphy J refused to grant the relief sought. The plaintiffs appealed. Held by the Supreme Court (Finlay CJ; Egan and Denham JJ concurring) in up- holding the decision of Murphy J and refusing the relief sought by the plaintiffs: (1) Judicial review is a review and not an appeal and for the court to give a declara- tion that the chairman of the Garda Con- ciliation Council had been incorrect in his interpretation as to whether proposals con- tained in certain circulars were matters within the scope of the conciliation coun- cil, as distinct from declaring that the interpretation was void or invalid, would be to conduct such an appeal. Chief Con- stableof North Wales Police v Evans [1982] 1 WLR 1155 approved. (2) This well- established principle of judicial review regarding the decisions of individuals or tribunals of an administrative nature car- rying out a decision making process, which they were bound to do in a judicial man- ner, was not merely an artificial restriction imposed by procedural rules of the court, but went to the root of the administrative nature of such tribunals. (3) The scheme of conciliation and arbitration between the