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Certiorari made absolute where Justice acts outside
jurisdiction
Martin Dolphin, was arrested on 29 September 1970,
and charged with assaulting a Garda, and two civilians.
On 1st October, he was admitted to bail. He was also
charged with using abusive language on 7th October
On that day he behaved in an insulting manner, and
was sentenced to seven days for contempt of Court. On
22nd October medical evidence was adduced in the
District Court to the effect that he was unfit to plead.
On, 3rd December, the Justice heard the evidence of
four psychiatrists confirming this, and he was remanded
until 4th February 1972. On 4th December 1970, the
Minister for Justice made an Order under the Lunatic
Asylums Act, 1875, that the accused be removed to the
Central Mental Hospital in Dundrum. On 29th Jaiv
uary 1971, a friend of the accused, who was concerned
about his condition, applied to Kenny, J. for a con-
ditional order of
habeas corpus
and of
certiorari
for
the purpose of quashing the orders made by the Justice
on 3rd December 1970. The Governor of the Central
Mental Hospital then stated that Dolphin was then fit
to plead, and he was released from there on 2nd
February 1972. The Justice made an affidavit to the
effect that Dolphin was not in a fit state to comprehend
the proceedings on 3rd December. The friend of the
applicant now applied to make the conditional order of
Certiorari
which had been duly granted by Kenny, J.,
absolute. The main ground was that the District
Justice should not have considered whether Dolphin
was fit to plead or not in his absence. Dolphin himself,
as a leading Maoist, has throughout refused to recognise
the jurisdiction of the Courts.
Accordingly Kenny, J. held :
(1) That Dolphin's friend was competent to re-
present him at these hearings, as much for
habeas
corpus
—as for
certiorari.
(2) The only jurisdiction the Justice had on 3rd
December 1970, under section 24 of the Criminal Pro-
cedure Act 1967, was to remand the accused for a
further period. There was no jurisdiction to decide the
issue whether the accused was unfit to plead, parti-
cularly when the accused was not present. The order
°f the Justice was made without jurisdiction.
Accordingly the conditional order of
Certiorari
should be made absolute.
[In re Dolphin—The State (Egan) v the Governor
°f the Central Mental Hospital and District Justice
O'Huadhaigh; unreported; Kenny, J.; 27th January
1972.]
Contract:
A
late higher offer for premises is not accep-
table if the Court has approved the terms of the
contract for sale, and if this contract has been
signed by the first purchaser.
Appeal
against Kenny J.'s decision of 11th October 1971
l
hat the United Dominions Trust (Ireland) Ltd. were
the purchasers of Hibernian House, Fleet Street, Dub-
lin. for £65,000. The reserve price had previously been
fixed by the Court at £70,000 but there was no bid at
the auction. Subsequently a bid was made by U.D.T.
to purchase for £65,000. After The contract for pur-
chase had been signed by U.D.T., but not by the official
liquidator of Hibernian Transport, the solicitor for the
Irish Permanent Building Society handed the Judge a
document, which was an offer by them to purchase the
premises for £101,000. The Judge held that, as there
had been prior agreement to sell to U.D.T., that agree-
ment must stand. Originally the U.D.T. offer was the
only one on the market, and it was only later that the
other offer appeared. Furthermore it had been com-
municated with the approval of the Judge. The Court
accordingly had agreed to a bargain. It was unfortunate
that the higher offer was not made in time. The Judge
was quite right to regard himself as being bound to
permit the liquidator to complete the contract signed
by the purchaser. The appeal was accordingly dismissed.
[In re Hibernian Transport Companies and in re
Companies Act 1963; full Supreme Court; unreported;
20th December 1971; judgment of Walsh J.]
Guardianship of Infants: Custody of girl infants
awarded on appeal to father.
The facts of this case have been fully set out in the
September/October
Gazette
1971 at page 131.
Kenny J. had awarded the custody of the three
infant daughters to the guilty mother, on the ground
that they would be happier at home than in a boarding
school in Dublin. The full Supreme Court reversed this
decision.
Per Walsh J. : By staying in a boarding school, the
children are leading a stable existence. The school con-
cerned specialises in catering for children from broken
homes. If possible, the father wishes to set up the family
life again with the assistance of a housekeeper. The
children are being brought up in proximity to their
father an to their grandparents. The mother should
have access, but the children cannot be taken out of the
jurisdiction.
[W. v W.; Supreme Court; unreported; 10th Dec.
1971.]
Ruling against Union on Bar Waitresses: Breach of
constitutional rights to compel employers to dis-
miss them under threat of pickets.
In a reserved judgment in the High Court, Mr. Justice
Kenny held that the threat of a picket to compel
employers to dismiss bar waitresses solely because they
were women was a breach of their constitutional rights.
He was giving his decision on the question whether
the owners of three Dublin licensed premises had estab-
lished that they had a reasonable prospect of success in
their suit against the Irish National Union of Vintners,
Grocers and Allied Trades Assistants and its general
secretary, Michael Gleary.
The Court continued an injunction granted to P. T.
Prendergast Ltd., owners of The Parkway Bar, Walkins-
town Cross; Mr. Francis Walsh, owner of The Chariot
Inn, Ranelagh, and the owners of O'Byrnes, Rathgar
Road, against Mr. Gleary, restraining him from autho-
rising persons to picket the premises. The order is
effective until the trial of the action or until further
order.
Mr. Justice Kenny said that two plaintiffs were mem-
bers of the Licensed Grocers and Vintners Association
which had entered into agreements with the first-named
defendant, the union, in 1924. Another agreement was
made in 1968 in relation to a new category of workers
known as bar waiters. There was nothing in the agree-
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