The Gazette 1992

DECEMBER 1992

GAZETTE

Recent Irish Cases Compiled by Raymond Byrne, BCL, LLM, BL, Lecturer in Law, Dublin City University. The following case summaries have been reprinted from the Irish Law Times and Solicitors Journal with the kind permission of the publishers.

Ramava [1942] IR 148 approved. Dicta in Saorstat and Continental Steamship Co v Rafael de las Morenas [1945] IR 291 doubted. I Congresso |1983] 1 AC 244 approved; (4) the contract between Mr Burke and the embassy to act as chauffeur for the ambassador was not a commercial contract in the ordinary sense and it involved, in effect, an element of trust and confidential- ity which was connected with the Govern- ment of Canada's public business and inter- ests; and accordingly the Government of Canada was entitled to rely on the restricted form soveriegn immunity in the instant case; (5) the application for judicial review was not premature in that the Employment Ap- peals Tribunal had made a determination and the Government of Canada was not required to await enforcement proceedings (if any) by the Minister for Labour under s.10 of the 1977 Act. A.S. v S.S. Supreme Court 21 February 1992 FAMILY LAW - CUSTODY OF CHILDREN - WELFARE AS PARAMOUNT CONSIDERATION - PRACTICE - SUPREME COURT - FUNCTION OF COURT ON AP- PEAL - FINDINGS BY TRIAL COURT - Guardianship of Infants Act 1964, s.11 The plaintiff wife instituted proceedings under the Judicial Separation and Family Law Reform Act 1989 seeking a judicial separation from the defendant husband. She also claimed custody of the children of the marriage, three girls aged from 13 to 7. The trial judge (Morris J) granted the judicial separation. He found that the plaintiff had left the marriage to form a relationship with another married man, that the plaintiff was not truthful in her evidence as to the breakup of her marriage and that on occasion she had left the children alone at night when she went out socialising. He also found that the man with whom she was having a relationship had nothing to offer the chil- dren in the way of a father figure. Morris ) considered that the defendant husband was a hard-working and retiring man, and that while he was strict this would have a posi- tive effect on the children, whereas the plaintiff's lifestyle was not likely to have a beneficial effect on them. The trial judge held that, although the defendant husband would be away from the family home for most of the day (during which time he stated he would employ a housekeeper), the welfare of the children indicated that he should be given custody of them. On ap- peal by the plaintiff as to the custody of the children HELD by the SupremeCourt (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) dismissing the appeal: (1) the Court should be slow to interfere with the findings of a trial judge in relation to conclusions drawn from primary facts which are sup- ported by the evidence given. Hay v O'Gradyi SupremeCourt, 4 February 1992)

Government of Canada v Employment Ap- peals Tribunal (Burke, Notice Party) Su- preme Court 12 March 1992 CONSTITUTION - INTERNATIONAL RELATIONS - SOVEREIGN IMMUNITY OF FOREIGN GOVERNMENT - WHETHER ABSOLUTE OR RESTRICTED TO MAT- TERS RELATING TO PUBLIC BUSINESS AND POLICY OF FOREIGN GOVERNMENT - DEVELOPMENTS IN INTERNATIONAL PRACTICE - CHAUFFER OF EM- BASSY OF FOREIGN GOVERNMENT - DISMISSAL - WHETHER SOVERIEGN IMMUNITY APPLIED - WHETHER CLAIM FOR UNFAIR DISMISSAL MAY BE MADE TO EMPLOYMENT APPEALS TRIBUNAL - Con- stitution, Article 29.3 - Unfair Dismissals Act 1977, s. 10 The notice party, Mr Burke, had been em- ployed as chauffeur to the Canadian am- bassador in Ireland in the Canadian Em- bassy in Ireland until May 1988, when he was dismissed. He instituted unfair dis- missal proceedings pursuant to the 1977 Act. At the hearing of his case before the Employment Appeals Tribunal, the Cana- dian Government's solicitor argued that the Tribunal had no jurisdiction to hear the matter, claiming that the Government of Canada was entitled to rely on the doctrine of sovereign immunity. The Tribunal re- jected this argument and held that it had jurisdiction to hear the matter; the Cana- dian Government then withdrew from the proceedings. The Tribunal went on to con- clude that Mr Burke had been unfairly dismissed and awarded him damages. The Government of Canada sought judicial re- view of the Tribunal's decision, but this application was rejected in the High Court by Mackenzie J: [1991 ] ELR 57. On appeal by the Government of Canada HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) allowing the appeal: (1) the case should be deter- mined by reference to the generally recog- nised principles of international law, in accordance with Article 29.3 of the Consti- tution; and in this context, the Court was entitled to take account of developments in other jurisdictions and was not confined to examining whether the Irish legislature or executive had not expressly addressed the doctrine of foreign sovereign immunity; (2) having regard to developments in other jurisdictions since World War II in particu- lar, it was clear that other States had aban- doned the notion of an absolute sovereign immunity; such an absolute immunity was relevant only to a time when a State was concerned with the conduct of its armed forces, foreign affairs and the operation of its currency; but it was no longer appropri- ate to an era when so many States were engaged in the business of trade, whether directly or indirectly; (3) the more restric- tive form of foreign immunity now recog- nised by most States was one which at- tached to the actual public business or policy of a foreign State, but no immunity attached to private trade conducted by States. Dicta in Zarine v Owners of SS

(below) applied; (2) since the trial judge had had regard to the welfare of the children as the paramount factor and had taken into account the totality of the picture presented to the court, his decision to award custody to the defendant father should not be inter- fered with. Per curiam: while previous cases in relation to the question of custody pro- vide guidance on the general principles applicable, each case tends to turn on its own individual circumstances. Dicta in MacD. vMacD. (1979) 112 ILTR 60 dis- cussed. K. v K. Supreme Court 13 February 1992 FAMILY LAW - MAINTENANCE - DESERTION BY SPOUSE - WHETHER BAR TO MAINTENANCE - CON- STRUCTIVE DESERTION - WHETHER INTERESTS OF IUSTICE IN FAVOUR OF GRANTING MAINTENANCE - MAINTENANCE OF CHILDREN - WHETHER CHANGED CIRCUMSTANCES - Family Law (Mainte- nance of Spouses and Children) Act 1976, s.5 - judicial Separation and Family Law Reform Acl 1989, s.38 The applicant wife sought maintenance from the respondent husband for herself, and a variation of maintenance previously granted to their children. In previous judi- cial separation proceedings, the High Court had found that the applicant had construc- tively deserted the respondent primarily arisingfrom her morbid jealousy which had resulted in the respondent leaving the fam- ily home. This decision was confirmed on appeal by the Supreme Court. In the instant application in the High Court, Costello ) had held that the applicant was barred by s.5 of the 1976 Act from claiming mainte- nance by virtue of the constructive deser- tion. He also held that she was not entitled to the benefit of the amendment to s.5 of the 1976 Act effected by s.38 of the 1989 Act, by which maintenance could be awarded notwithstanding desertion where it would be repugnant to the interests of justice not to make such an order. Costello ) also de- clined to increase the maintenance previ- ously awarded to the children of the mar- riage. On appeal HELD by the Supreme Court (Finlay CJ, Hederman and McCarthy JJ) allowing the appeal in part only: (1) the definition of 'desertion' in s.5 of the 1976 Act clearly and unambiguously applied to a case of constructive desertion, such as oc- curred in the instant case; (2) the applicant was not entitled to the automatic benefit of the exemption to s.5 of the 1976 Act which had been inserted by s.38 of the 1989 Act, and that its true interpretation placed a heavy onus on a person seekingto claim the benefit of an otherwise absolute ban on payment of maintenance to a spouse who had deserted the other spouse; (3) the find- ing that the applicant had a morbid jealousy of the respondent did not amount io a finding that the applicant was a person ot unsound mind deserving of special protec tion by the courts; and in fact the applic ant

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