The Gazette 1992

SEPTEMBER1992

GAZETTE

Corcoran v Minister for Social Welfare High Court 7 June 1991 SOCIAL WELFARE - UNEMPLOYMENT ASSISTANCE - WHETHER APPLICANT ENTITLED TO PAYMENT - APPLICANT RETAINING VAN - WHETHER REFUSAL OF ASSISTANCE REASONABLE - WHETHER APPLI- CANT ENTITLED TO LEGAL REPRESENTATION AT APPEALS HEARING - Social Welfare (Assistance Deci- sions and Appeals) Regulations 1953 - Social Welfare (Consolidation) Act 1981, s.138 The applicant received unemployment as- sistance after his redundancy. A social wel- fare Deciding Officer investigated whether he was entitled to continue to receive the assistance. Heconcludedthatthe applicant was not entitled to a qualification certifi- cate pursuant to s.138 of the 1981 Act, having regard in particular to the appli- cant's purchase of a Nissan van in a trade- in of an older van which the applicant had bought while he was employed. The appli- cant had retained a firm of solicitors to deal with his claim to assistance, and they wrote to the Department asking to be represented at any appeal hearing. The Department had arranged an appeal for the day after this letter was sent and the firm was not aware of the hearing, although the applicant had been informed of the hearing a week ear- lier. At the appeal hearing, the Appeals Officer upheld the decision not to grant the applicant social assistance. A further ap- peal, at which the applicant was repre- sented by his solicitor, also declined to grant the applicant the unemployment as- sistance. On judicial review by the appli- cant HELD by Murphy J dismissing the application: (1) the Deciding Officer was entitled to take account of the applicant's personal circumstances, particularly his continued ownership of the van bearing in mind the obvious demands on his limited resources; and the inference that he had a more substantial income or an undisclosed income in excess of the statutory maximum permitted under s.138 of the 1981 Act could not be described as unreasonable; and similar reasoning applied to the deci- sion of the Appeals Officer. The State (Keegan) v Stardust Victims Compensation Tribunal [1987] ILRM 202; [1986] IR 642 applied; (2) the 1953 Regulations did not provide for a right to legal representation at an appeals hearing, and the appeals notice in the instant case had conformed to the requirements of those Regulations; but, in any event, the appl icant had not been preju- diced by the absence of his solicitor from the first appeals hearing; (3) there was no basis for the proposition that the applicant was entitled to be represented by legal advisers at an appeal hearing, even where such legal advisers notified the Department of their intention to appear; nor was there any basis for the suggestion that such repre- sentation should be at the expense of the State, bearing in mind that a refusal of assistance was not final and could be re- viewed in the light of new evidence as to means. Dicta in Flanagan v University Col- lege Dublin [1989] ILRM 469 discussed. Per Murphy J: although the solicitors had no right to appear, it would have been churlish if they had been refused permission to appear.

corporation tax in respect of profits derived from the sale by export of goods manufac- tured in the State. The respondent company engaged in the production of nappy liners and J Cloths in the State which were then exported. These were produced by placing large bales of fabric (1,200 to 3,000 cubic metres) intoa machine which, itwas agreed, was expensive, sophisticated and required special training for its operatives. In relation to J Cloths, the machine was capable of packaging as well as cutting the cloths. The applicant Inspector of Taxes refused to al- low the company relief from corporation tax under s.42 of the 1980 Act. On appeal the Appeal Commissioner held that the relief should be granted. On case stated HELD by Carroll J affirming the decision: looking at the end product in the instant case, it was immediately clear that it was commercially different from the bales of fabric, adding more than 70% in value to the J Cloths and 40% to the nappy liners; the reduction in size had utility, quality and worth which were due to the process car- ried out by the company; and although the process did not bring about any change in the raw material itself (just as confetti was unchanged from its original state as bulk paper), this did not prevent it from being a manufacturing process; and an ordinary person, even if unaware of the actual proc- ess, would consider it to be manufacturing. Dicta in Cronin v Strand Dairy Ltd (High Court, 18 December 1985) and Irish Agri- cultural Machinery Ltd v O Culachain [1989] ILRM 478; [1990] 1 IR 535 applied. The respondent company's business was the relay of cable television and radio sig- nals to domestic householders. The signals were transmitted through cables to each house by means of electric current, at a voltage of about 0.001 of a volt. Such current is not normally capable of any use except for the relaying of broadcast signals. The supply of electricity is zero rated for the purposes of the 1972 Act. In the Circuit Court, it was held that the respondent was supplying electricity and that the zero VAT rate was applicable. On case stated HELD by Carroll J reversing the Circuit Court: (1) the findings of the Circuit Court judge, whether viewed as a mistaken interpreta- tion of the law or an unreasonable infer- ence from the primary facts, could not be upheld since they were inconsistent with the finding that the company's business was the transmission of TV and radio sig- nals. Mara v Hummingbird Ltd [1982] ILRM 421 applied; (2) while the company used electricity to carry the signals, this could not be descroibed as supplying electricity in the ordinary colloquial meaning of the words. Inspector of Taxes v Kiernan [1982] ILRM 13; [1981] IR 117 applied. Brosnan v Cork Communications Ltd High Court 15 October 1991 REVENUE - VALUE ADDED TAX - BUSINESS OF RE- LAY OF CABLE TELEVISION AND RADIO SIGNALS - SIGNALS TRANSMITTED BY ELECTRICAL POWER - WHETHER RELAYER OF SIGNAL ENGAGED IN SUP- PLY OF ELECTRICITY - PRACTICE - CASE STATED - INFERENCES FROM PRIMARY FACTS - WHETHER REASONABLE - Value Added Tax Act 1972

ABLE IN TAXATION - PERSONAL INJURIES ACTION - LAW REFORM - WHETHER NEED TO ALTER PRE- TRIAL PROCEDURES FOR MEDICAL REPORTS - Rules of the Superior Courts 1986, 0.99, r.37(8) and (18) The plaintiff's personal injury action against the defendant was listed for 30 and 31 May 1990. Evidence was heard on 30 May but the action was settled on 31 May. Counsel' for the plaintiff had directed the attendance of four doctors, but only one had given evidence when the case was settled. All four doctors had charged standby fees for 30 May, and the plaintiff's solicitor dis- charged these fees. It was a long standing practice that such standby fees were not allowed on taxation by the Taxing Master, but the Incorporated Law Society of Ireland recommended that such fees be discharged. It was argued that such fees should be allowed on taxation, but the Taxing Master declined to allow them. On appeal HELD by Costello J dismissing the appeal: (1) although the listing system for personal injuries actions in the High Court was not very satisfactory, and this undoubtedly caused inconvenience to all professional witnesses who are not called on the date scheduled for their evidence, it was not reasonable, within the meaning of 0.99, r.37(8) of the 1986 Rules, for professional witnesses to charge standby fees, since it was not suggested that they necessarily suffer any financial loss for a day on which they have mistakenly made themselves available to appear in court, and any addi- tional inconvenience is compensated for by the payment of the attendance fee; (2) while medical witnesses are in a special category, since their inconvenience may be accompanied by hardship to other people, the courts took account of this by arranging, for example, to have their evidence heard out of turn or specially fixing a date for hearing an action; (3) the practice of paying such standby fees, albeit recommended by the Law Society, did not mean that such payment was either necessary for the at- tainment of justice or for enforcing the rights of either party, within 0.99, r.37(18) of the 1986 Rules; and no practice could confer a right to payment outside the terms of 0.99. Principles in Kelly v Breen [1978] ILRM 63 explained. Per Costello J: it would be in the interests of the administration of justice and of the medical profession if agreement could be reached more fre- quently to accept medical reports as evi- dence without the necessity to call their authors merely for the purpose of confirm- ing and repeating their contents in court; and consideration should be given to the establishment of pre-trial procedures to permit this to be done formally, as well as the acceptance of reports, maps and photo- graphs from other professional witnesses without the necessity of having to prove them formally. O Laochdha v Johnson & Johnson (Irl) Ltd High Court 6 November 1991 REVENUE - CORPORATION TAX - RELIEF - SALE BY EXPORT OF GOODS MANUFACTURED IN STATE - WHETHER GOODS PRODUCED FROM CUTTING, FOLDING AND PACKAGING OF LARGE BALES OF FABRIC 'MANUFACTURED' - Finance Act 1980, s.42 S.42 of the 1980 Act provides for relief from

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