31 / 262
In the event they chose the latter course. It was
true that if they had chosen the former course, and
by reason of such decision they were to lose their
affiliation to Congress, the union might suffer thereby.
Insofar as the Constitution of Congress was the result
of an agreement freely entered into by the I.T.G.W.U.
with the other affiliated unions, they chose to limit their
own sovereignty by agreeing to the provisions in the
Constitution.
They had decided to abide by that agreement rather
than to accept Mr. Murphy into membership in breach
of it. "Therefore, in the final analysis, the real barrier
to the plaintiff's failure to obtain entry to the I.T.G.
W.U. is the decision of that union to abide by its
agreement."
Mr. Justice Walsh said that the defendant union in
refusing to give its consent was also observing the terms
of the Constitution of the Congress.
Mr. Justice Walsh said the net question was whether
the defendants could be forced to consent to the
plaintiff's joining the I.T.G.W.U. on the grounds that
their refusal to give such consent amounted to an
infringement of the plaintiff's constitutional right to
form associations and unions.
"In my view the answer must be in the negative."
Even if the rules of the defendant union had contained
provisions relating to cesser of membership and even
if the court were to consider itself free to write into
it the words "such consent not to be unreasonably with-
held" nothing in the circumstances of the case would
warrant the court in holding that the consent was un-
reasonably withheld.
The real and effective barrier to Mr. Murphy's entry
into the I.T.G.W.U. was the decision of that union
not to take him without the consent of the defendant
union. In the circumstances the defendants, in deciding
to exercise such rights as they had under the same
agreement, could not be held to have in any way
infringed the constitutional right of Mr. Murphy.
Accordingly the appeal was allowed, and Murnaghan
J. was reversed.
f
Irish Independent,
20/12/1972.)
[Murphy v. N.U.V.B.; Supreme Court; unreported;
19 December 1972.]
Application refused in ca:e involving Bookmaker. De-
claration sought that certificate of personal fitness
is null and void.
In the High Court in Dublin Mr. Justice Kenny
refused an application on behalf of two Bray (Co.
Wicklow) men to delete certain pleadings made in a
defence by a Dublin bookmaker to an action arising
out of a transaction at the bookmaker's office in Bray
on May 15th. 1971.
The plaintiffs are James Moran and Patrick Kinsella,
both labourers, and both of Connolly Square. They are
suing Superintendent Matthew-Sills, /and Mrs. Dorothy
Power, trading as Richard Power of Palmerston Road,
Dublin.
In the pending action they are seeking a declaration
that the purported certificate of personal fitness to hold
a bookmakers' licence, given by Superintendent Sills to
Mrs. Power, is null and void.
They claim that on that date in question Mrs. Power
accepted a bet from them in respect of certain horse
races to
run at various meetings in England that
afternooij. The bets consisted of 10 doubles at 25p, 10
trebles at<25p, one accumulator of 25p in respect of five
horses and three doubles at £1 and one treble at £2 in
respect of three horses.
Each of the horses won, they claim, and Mrs. Power
became liable to them in the sum of £31,721. In spite
of repeated applications, Mrs. Power refused to pay
them the money.
Despite the objections of the plaintiffs to the grant-
ing of a certificate of personal fitness, Superintendent
Sills renewed the certificate following an application
by her on November 7th, 1971.
The plaintiffs seek a declaration that this certificate
is null and void, and they also seek an injunction
restraining Mrs. Power from receiving such certificate.
In the course of her defence Mrs. Power pleads that,
insofar as these proceedings have been commenced and
continued for the purpose of attempting to force her to
pay to the plaintiffs the sum of £31,721, they constitute
an abuse of the proccss of the court and are a contempt
of court.
Mrs. Power also pleaded that the proceedings were
not maintainable, .being against public policy, and
claiming that the monies alleged to be due on foot of
the alleged betting transaction were not revoverable in
law.
The plaintiffs asked that both the paragraphs in the
defence be struck out.
Mrs. Power, in her defence, also pleads that the
claim does not disclose any cause of action against her.
She denies having accepted the bets or that she became
liable to the plaintiffs for the sum mentioned. If any
sum were due (which she denies) she pleads that,
because of a limit operated by her and well known to
the plaintiffs, the maximum amount recoverable on bets
of the kind detailed was £2,400.
Mr. Noel Peart, S.C., for the plaintiffs, said that they
were both motions to strike out certain paragraphs from
the two defences on the grounds that they were vexa-
tious and prejudicial. There was no claim in the action
that the defendants, or either of them, pay any sums
of money to the plaintiffs. In fact, he submitted that
it was clear that no court could make an order for the
payment of any money other than a sum for costs to
the plaintiffs.
Mr. Peart said that, in the first motion, the defendant
had put in a paragraph in which it was alleged that
these proceedings were not maintainable, being against
public policy, and claiming that monies alleged to be
due on foot of an alleged betting transaction were not
revoverable in law. The proceedings, however, did not
ask the court to deal with the payment of any sum on
foot of any betting transaction.
In the second motion Mrs. Power had entered a
defence claiming that, insofar as these proceedings had
been commenced and continued for the purpose of
attempting to force her to pay to the plaintiffs the
sum of £31,721, they constituted an abuse of the
process of the court and were a contempt of court.
"These proceedings may be vexatious," he said. "A
punter who is not paid by a welching bookmaker is
entitled to be vexatious, but he is not entitled to claim
any sum of money, and these proceedings do not seek
payment of any money. They are not commenced or
are they continued for the purpose of forcing the
defendant to pay £31,721, but they are being com-
menced and continued for the purpose of depriving
Mrs. Power of her bookmakers' licencc."
Counsel on behalf of both defendants submitted that
the defence pleadings were proper and that the full
facts would have to be known by the court before the
issue could be determined.
30