The Gazette 1992

GAZETTE

SEPTEMBER

1992

whether the scheduled offence in question

involved an attack on the maintenance of

public peace and order, such as conviction

in the Special Criminal Court for posses-

sion of a sporting gun without a licence,

and since the ultimate factor triggerings.34

was the venue of the trial, the section failed

as far as practicable to protect the constitu-

tional rights of the citizen and was, accord-

ingly, impermissibly wide and indiscrimi-

nate and not warranted by the objectives it

was sought to secure; (4) the power of the

government under s.34 to remit in whole or

part the effects of a forfeiture did not save

s.34 from its constitutional invalidity.

Cowzer v Kirby and Director of Public

Prosecutions High Court 11 February 1991

CRIMINAL LAW - PROCEDURE - INDICTABLE OF-

FENCE - DEMANDING MONEY WITH MENACES -

ACCUSED ELECTING FOR SUMMARY TRIAL - PROS-

ECUTION AMENDING DATES OF ALLEGED OF-

FENCES - PROSECUTION ALTERING CHARGES - DE-

FENCE SEEKING COPY OF STATEMENT GROUND-

ING ORIGINAL COMPLAINT - WHETHER COPY MUST

BE FURNISHED IN ADVANCE OF TRIAL - CONSTITU-

TION - TRIAL IN DUE COURSE OF LAW - Larceny Act

1916, ss.29, 30 - Criminal Procedure Act 1967, s.6 -

Constitution, Articles 38.1, 40.3

The applicant had been charged with de-

manding money with menaces on a par-

ticular date, contrary to s.29 of the 1916

Act. The applicant was brought before the

first respondent in the District Court and

elected for summary trial, the first respond-

ent indicating that he was prepared to

accept jurisdiction. On the date set for trial,

the applicant proposed to adduce alibi

evidence to indicate that he could not have

committed the offence on the date indi-

cated in the charge. At the outset of the

hearing, however, the prosecution applied

to have the date in the charge amended and

this was accepted by the first respondent

and the trial was adjourned. The prosecu-

tion also indicated that the s.29 charge was

being abandoned and that a charge of

demanding money with intent to steal,

contrary to s.30 of the 1916 Act, would be

brought instead. The applicant's solicitor

then sought from the second respondent a

copy of the statement from the complain-

ant on which the original charges had been

brought, but this was refused. The appli-

cant then sought an order of prohibition

preventing his prosecution and trial on the

existing or any substituted charges unless

all witness statements were furnished to

him before the trial.

HELD

by Barr J grant-

ing the application: (1) the charges against

the applicant were not in any way trivial in

nature, since he ran the risk of a prison

sentence of up to 12 months, and the

constitutional guarantees of fair procedures

and of a trial in due course of law required

that the appl icant be afforded every oppor-

tunity to defend himself; and there was no

prior authority indicating that in summary

proceedings an accused is not in any cir-

cumstances entitled to receive, prior to his

trial, copies of written statements made by

prosecution witnesses. Dicta in

The State

(Healy) v Donoghue

[1976] IR 325 ap-

plied.

Clune v Director of Public Prosecu-

tions

[1981 ] ILRM17 and

Kelly vO'Sullivan

(High Court, 11 July 1990) (1991) 9ILT126

considered; (2) there was no logic in the

proposition that merely because the appli-

cant elected for summary trial he should

lose rights which he would have if he had

elected for trial on indictment and would

then have been served with a book of

evidence under s.6 of the 1967 Act; and

while the applicant was not entitled to

receive a formal book of evidence, the

Constitution required that he receive, atthe

least, copies of the statements of all wit-

nesses whose evidence is crucial to the

prosecution case against him, particularly

having regard to the change in the dates

and in the charges themselves which the

Director of Public Prosecutions had indi-

cated; and he was accordingly entitled to

the relief sought.

Westman Holdings Ltd v McCormack and

Ors Supreme Court 14 May 1991

INJUNCTION - INTERLOCUTORY - TRADE DISPUTE

- INJUNCTION TO PROHIBIT PICKETING DISPUTE AS

TO WHETHER NEW OWNER OF PREMISES WAS

EMPLOYER OF WORKERS EMPLOYED BY PREVIOUS

OWNERS OF PREMISES - WHETHER FAIR QUESTION

TO BE TRIED AS TO ISSUE - BALANCE OF CONVEN-

IENCE - European Communities (Safeguarding of Em-

ployees' Rights on Transfer of Undertakings) Regula-

tions 1980 - Industrial Relations Act 1990, ss.8, 11

The plaintiff company had purchased

premises known as 'Judge Roy Beans' which

were operated as a restaurant, licensed

premises and night club. The defendants

had been workers in the premises and had

been employed by the former occupiers of

the premises from whom the plaintiff com-

pany had purchased it. The defendants'

union representative claimed that the de-

fendants' employment continued on the

transfer of the business to the plaintiff, in

accordance with the 1980 Regulations.

The plaintiff company rejected this claim

and the defendants subsequently began to

picket the premises. The plaintiff obtained

an interim injunction preventing picketing

and an interlocutory injunction was subse-

quently granted. On appeal by the defend-

ants

HELD

by the Supreme Court (Finlay

CJ, O'Flaherty and Egan JJ) dismissing the

appeal: (1) there were fair and bona fide

questions to be tried as to whether the

defendants were employed by the plaintiff

company under ss.8 and 11 of the 1990 Act

and also whether they were entitled to the

benefit of the 1980 Regulations; (2) once it

is decided that fair questions arose, a court

hearing an application for an interlocutory

injunction should not express any view on

the strength of the contending submissions

concerning those questions but should pro-

ceed to consider the balance of conven-

ience.

Campus Oil Ltd vMinister for Indus-

try and Energy

(No.2) [1983] IR 88 applied;

(3) while the plaintiff's potential loss if

refused an interlocutory injunction was

primarily monetary, it was unlikely that it

would receive adequate compensation if it

was successful at the trial of the action,

having regard to the inability of some of the

defendants to pay damages and also to the

potential immunity of suit of members of a

trade union engaged in a trade dispute;

whereas the plaintiff's undertaking as to

damages if granted an injunction would be

sufficient to compensate the defendants in

the event that they were ultimately suc-

cessful, even having regard to their argu-

ment that their ability to picket at this stage

of the proceedings constituted a great aid

to them in the negotiations with the plain-

tiff; and having regard to a consideration of

all the factors, the balance of convenience

was in favour of granting the interlocutory

injunction sought by the plaintiff. (Note:

s.19 of the Industrial Relations Act 1990,

when it comes into operation on 18 July

1992, will alter the rules in cases such as

the above.]

National Union of Journalists and Ors v

Sisk and Ors Supreme Court 20 June 1991

LABOUR LAW - TRADE UNION - TRANSFER OF

ENGAGEMENTS - ENGAGEMENTS TO BE TRANS-

FERRED TO TRADE UNION NOT REGISTERED IN THE

STATE - WHETHER REGISTRAR OF FRIENDLY SOCIE-

TIES HAVING JURISDICTION TO CONSIDER TRANS-

FER - Trade Union Act 1913, ss.1, 2 - Trade Union Act

1941 - Trade Union Act 1975, s.9-Constitution, Article

40.6.1.ii

The first applicant was a trade union regis-

tered as such under the relevant legislation

of the United Kingdom. It also carried on

negotiations in this State on behalf of over

2,300 members and had an Irish council

which was responsible for the administra-

tion of its members in the State. It

HELD

negotiation licence issued by the Minister

for Labour under the 1941 Act. The appli-

cant had reached agreement with the Irish

Print Union, a trade union registered in the

State, for the transfer of engagements from

that union to the applicant. It applied for

the registration of that transfer of engage-

ments with the first respondent, the Regis-

trar of Friendly Societies, pursuant to the

1975 Act. The respondent considered that

he had no jurisdiction to deal with the

proposed transfer on the ground that the

applicant Union was not registered in the

State. On judicial review by the first appli-

cant Keane J dismissed the claim (High

Court, 31 July 1990) (1991) 9 ILT Digest

127. On appeal by the applicant

HELD

the Supreme Court (Finlay CJ, Hederman,

McCarthy, O'Flaherty and Egan JJ) allow-

ing the appeal: (1) the term 'trade union' in

s.2 of the 1913 Act was not defined by

reference to the registration or certification

of a trade union by the Registrar of Friendly

Societies, but rather in relation to what a

trade union is and what its principal ob-

jects are, such objects being outlined in s.1

of the 1913 Act; and in this light, while the

first applicant was not registered or certi-

fied under s.2 of the 1913 Act, it was

nonetheless a 'trade union' within s.2 of

the 1913 Act; (2) aside from the interpreta-

tion contended for s.9 of the 1975 Act,

there was nothing in the 1975 Act to indi-

cate that, for the purposes of a transfer of

engagements, it was necessary that the

union to which the transfer was to take

place should necessarily be registered un-

der the 1913 Act; nor did this interpretation

involve the necessary conclusion that the

1975 Act had extraterritorial effect, since

the purpose of the 1975 Act was simply to

ensure that the transferee would be capa-

ble of looking after the interests of the

members of the union from whom the

transfer took place; and in the instant case,

the fact that the first applicant had a pres-

ence in the State and

HELD

a negotiating

licence under the 1941 Act indicated that

it would be capable of looking after the

interests of the IPU members; (3) s.9 of the

1975 Act did not, by express terms, limii