The Gazette 1976

AUGUST 197«

GAZETTE

principle that each party is entitled to be heard. This is well founded, because the plaintiff was never given any reasons for his discharge until after he had actually been dis- charged; and the facts or findings to support this were never divulged to him. As the discharge in this case was for a discreditable reason, the fundamentals of justice require that the man shall be given the oppor- tunity of meeting the case against him. In this case it would be an affront to justice if the law held that a decision with drastic consequences for the man involved could be made behind his back,. The law applicable here is well-established, and the Army Authorities were under a clear duty to give him due notice in ad- vance of his discharge, of the statu- tory reasons for it, and of the essen- tial facts and findings supporting that reason. The Army Authorities have lamentably failed to observe this procedure in this case, and the appeal is consequently dismissed. Per Henchy J.: If a plaintiff seeks to have condemned in the Supreme Court as invalid a decision on the ground that it is incompatible with the Constitution, it is necessary for him to prove the following : (1) The application in the cir- cumstances of the case of a specified Constitutional right, either express or implied; (2) The decision appealed from has infringed that right; and (3) That the person appealing stands aggrieved by reason of that infringement. State (Gleeson) v. Minister for Defence and Attorney General — Supreme Court — (Henchy J., Griffin J,. and Kenny J.) — Separate judgments by each Judge — unreported — 1st July, 1976. PRACTICE The mother of an illegitimate child may only institute proceedings in the High Court claiming an affilia- tion order by special leave of that Court. It was only in 1930 that the Illegitimate Children (Affiliation Orders) Act was passed, which gave leave to the mother of such child to apply to the District Court for an affiliation order against the putative father, but it is essential that a sworn information by the mother identifying the father be filed, and the Justice must be satis- fied of its authenticity before issuing a summons. The Courts Act 1971 amended the law by providing that all affiliation claims for a sum

exceeding £15 per week for the maintenance and education of the child were henceforth to be heard exclusively in the High Court. If the High Court had seisin of a case the District Court could not inter- vene. At the moment, there is no procedure in the High Court for receiving a sworn affirmation by the mother identifying the father and the Superior Courts Rules Com- mittee have as yet not issued any amending rules relating thereto. S. 19 of the Courts Act, 1971, had provided that claims for weekly sums of over £15 should be brought in the High Court, which accord- ingly has an inherent jurisdiction to operate S. 19, subject to adopting as nearly as possible the District Court procedure. Accordingly a pre- liminary affidavit should be sworn by the mother identifying the father, and the High Court should not grant leave to issue proceedings until this was done. As this pro- cedure was not followed in this case, the proceedings are struck out, but may be started afresh. Re Courts Act 1971 and S.E.O'B. — Supreme Court (Henchy, Griffin and Kenny JJ.) per Henchy J. — unreported — 29th July, 1976.

in Re Haughey—{ 1971) I.R. 236 —said: "Article 40(3) of the Con- stitution is a guarantee to the citizen of basic procedures of fairness. The Constitution guarantees such fair- ness, and it is the duty of the Court to underline that the words of this Article are not political shibboleths, but provide a positive protection for the citizen and his good name". Accordingly Butler J. held in this case that the decision to discharge the plaintiff from the Army consti- tuted a denial of Natural and Con- situtional Justice. This defect of procedure is fundamental, and the discharge must therefore be quashed. The Conditional Order of Certiorari will be made absolute. The Minister for Defence lodged an appeal to the Supreme Court, which was dismissed. Henchy J. said that, under S. 73 of the Defence Act 1954, the dis- charge of a man from the per- manent defence forces is allowed "for prescribed reasons". Para- graph 58 of the Defence Forces Regulations sets out no less than 24 reasons as "prescribed reasons" under the Act. The reason chosen in this case, instead of being a tangible one, was the nebulous one applying to a man whose dis- charge is clearly desirable in the in- terests of the service, and in whose case no other reason for discharge is applicable'. In order to apply this reason it was necessary for the Commanding Officer to prove beyond doubt that the discharge should be clearly desirable in the interests of the service, and that none of the 23 other reasons ap- plied. To discharge the plaintiff for this reason was condemnatory, in the same way as if he had been dis- charged for misconduct or ineffic- iency, and rendered him ineligible for enlistment ever again., As the plaintiff has enlisted for 3 years in the Army and had served for almost 2 years before being dis- charged, he had a statutory con- tract, and was the holder of an office, in the same way as a recruit in the Gardai. While the Common Law concept of Natural Justice is usually taken to encompass the two principles of "Nemo judex in sua causa" and "Audi Alteram Partem" the requirements of Constitutional Justice undoubtedly cover a wider field—such as that Justice was not administered in public, or that the decision was given by an unconsti- tutional tribunal. The plaintiff rests his case here on the Common Law

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