The Gazette 1992

GAZETTE

SEPTEMBER

1992

the ability of the IPU members to transfer

engagements to the first applicant; and

since such a limitation would amount to a

regulation by law of the right to join asso-

ciations or unions under Article 40.6.1 .iiof

the Constitution, the section should not be

interpreted as having imposed such a regu-

lation by some form of implication; and so

the first applicant was entitled to a declara-

tion that it came within the terms of the

1975 Act.

Gleeson v Feehan and O'Meara Supreme

Court 20 June 1991

LIMITATION OF ACTIONS - ACTION BY PERSONAL

REPRESENTATIVE FOR RECOVERY OF LAND

WHETHER STATUTE BARRED - WHETHER SUBJECT

TO SIX YEAR OR 12 YEAR LIMITATION PERIOD -

STATUTE - INTERPRETATION - Statute of Limitations

1957, ss.13, 45 - Succession Act 1965, s.126

The plaintiff was the personal representa-

tive of James Dwyer, who had died intes-

tate in 1937, and of Edmund Dwyer, who

had died intestate in 1971. Both were the

registered owner s of two parcels of land

which were the subject matter of the pro-

ceedings. On Edmund Dwyer's death in

1971, the only person in possession of the

land was his sister's son, and in 1975 he

sold one parcel of land to the second

defendant's predecessor in title and in 1978

sold the other parcel to the first defendant.

In 1983, the plaintiff obtained grants of

administration to the estates of James and

Edmund Dwyer and he also instituted pro-

ceedings by ejectment Civil Bill in the

Circuit Court in 1983 against the two de-

fendants. Judge Sheridan

HELD

that the

proceedings were statute barred as they

had been instituted beyond the six year

limitation period in s.45 of the 1957 Stat-

ute. On appeal to the High Court, Barron J

stated a case for the Surpeme Court as to

whether s.45 of the 1957 Statute applied.

This required consideration as to whether

the 12 year limitation period in s.13 of the

1957 Statute was applicable, in which case

the proceedings were not barred.

HELD

the Supreme Court (Finlay CJ, Hederman,

McCarthy, O'Flaherty and Egan JJ) finding

the claim was not statute barred: s.45 of the

1957 Statute was, by its plain and ordinary

meaning, a provision applicable to pro-

ceedings

a person seeking an interest in

a deceased's estate

against a

personal rep-

resentative, but it was not appl icable to the

instant case where proceedings were insti-

tuted bythe personal representative

against

a stranger to the estate; and since the plain-

tiff's action was essentially one to recover

land based on a superior title, s.13 of the

1957 Statute was applicable. Dicta in

Drohan v Drohan

[ 1981 ] ILRM 473; [ 1984]

IR 311 approved.

Nolan and Ors v Minister for the Environ-

ment and Electricity Supply Board Su-

preme Court 10 July 1991

LOCAL GOVERNMENT - MOTORWAY SCHEME -

REMOVAL OF ELECTRICITY PYLONS FROM MOTOR-

WAY ROUTE AND RELOCATION OF PYLONS PUR-

SUANT TO CONSENT BY MINISTER TO RELOCATE -

WHETHERCONSENTULTRA VIRES-WHETHERPLAN-

NINC PERMISSION REQUIRED FAIR PROCEDURES -

WHETHER NOTICE OF INTENTION TO CONSENT

TO RELOCATION REQUIRED - Local Government

(Planning and Development) Act 1963 - Local Govern-

ment (Roads and Motorways) Act 1974, ss.8, 10 -

Constitution, Article 40.3

The respondent Minister had made an or-

der under the 1974 Act approving a motor-

way scheme by Dublin County Council.

The motorway path included a number of

pylons which the respondent Board sought

to remove and relocate. The Board applied

to the Minister pursuant to the 1974 Act for

his consent to removal and relocation of

the pylons. The Minister purported to grant

such consent pursuant to s.10 of the 1974

Act, which authorises that consent may be

given by the Minister to a statutory under-

taker in relation to excavating any appara-

tus in the motorway path. The applicants,

householders beside which the pylons were

to be relocated, sought judicial review of

the Minister's consent on the grounds that

it was ultra vires (i) in purporting to permit

the respondent Board to perform an illegal

act, namely to relocate the pylons without

planning permission under the 1963 Act

and (ii) in failing to comply with the princi-

ples of fair procedures and natural justice.

In the High Court Costello J granted the

applicants a declaration that the Minister

had acted ultra vires the 1974 Act in allow-

ing a development wh ich was not exempted

under the 1963 Act: [1989] IR 357. On

appeal by the respondents

HELD

by the

Supreme Court (Finlay CJ, Hederman and

O'Flaherty JJ): (1) (per Hederman and

O'Flaherty JJ; Finlay CJ dissenting) since s.8

of the 1974 Act prohibited a planning

authority from granting permission for any

development which is part of a motorway

scheme under the 1974 Act, the 1974 Act

should be regarded as a self-contained

piece of legislation quite separate from the

planning code; and thus it was not appro-

priate to approach the instant case by con-

sidering whether the respondent Board's

actions were or were not exempt from the

1963 Act; and the trial judge had thus erred

in finding that the Minister had acted ultra

vires, so that the respondents' appeal on

this ground would be allowed; (2) (per

Finlay CJ, Hederman and O'Flaherty JJ): the

principles of fair procedures and natural

justice required the Minister, in exercise of

his powers under s.10 of the 1974 Act, to

consider the views of persons, such as the

applicants, who might be directly affected

by the proposal which the respondent Board

had made to the Minister and, since this

question had not been considered in the

High Court, it remained for decision by the

High Court.

Per curiam:

the requirements

of fair procedures did not require a formal

public notice, or an oral hearing for all

objections, but would be satisfied if the

Minister received and considered the gist

of local objections.

East Donegal Co-Op

Ltd v Attorney General

[1970] IR 317 and

O'Brien vBordna Mona

[1983] ILRM 314;

[1983] IR 255 discussed. Per Hederman

and O'Flaherty JJ: without expressing a

final view, the Minister may have complied

with the requirements of fair procedures in

the instant case.

Baxter v Horgan Supreme Court

June

1991

PRACTICE - COSTS - PARTNERSHIP - DISSOLUTION

- COSTS OF LITIGATION INCURRED AFTER DISSO-

LUTION - DISCRETION NOT TO AWARD COSTS

OUT OF PARTNERSHIP ASSETS

The plaintiff had begun High Court pro-

ceedings in 1976 seeking the dissolution of

a partnership between himself and the de-

fendant. The defendant denied a partner-

ship, but the proceedings were compro-

mised in 1977 by a consent order dissolv-

ing the partnership. An account by the

Examiner of all transactions was ordered,

but various disputes arose as to whether

certain transactions formed part of the part-

nership. These disputes led to various High

Court hearings, including a judgment of

Carroll J that certain invoices produced by

the defendant were forgeries (High Court,

21 February 1986). Further disputes be-

tween the parties resulted in another refer-

ence by the Examiner to the High Court. In

relation to some of the items referred,

Murphy J found in the defendant's favour,

but he awarded the costs of the proceed-

ings to the plaintiff (High Court, 28 May

1990). On appeal by the defendant against

the award of costs

HELD

by the Supreme

Court (Finlay CJ, McCarthy and Egan JJ)

dismissing the appeal: while it is usual that

in partnership actions the costs of accounts

after dissolution are directed to be paid out

of partnership assets, the trial judge has a

wide discretion in the matter; and in the

instant case, it was appropriate to take into

account that the defendant was the partner

responsible for keeping proper accounts

and that he had failed to do so; and having

regard to previous findings that the defend-

ant had produced forgeries, the plaintiff

was entitled to put the defendant on proof

of each item relevant to the accounts; and

while not every issue was decided in the

plaintiff's favour, the trial judge had strong

grounds for awarding the plaintiff the costs

of the issues referred from the Examiner.

Redmond v Ireland and Attorney General

Supreme Court 18 July 1991

PRACTICE - DAMAGES - STAY ON AWARD - NO

APPLICATION MADE IN HIGH COURT - APPLICA-

TION FOR STAY TO SUPREME COURT - APPEAL ON

LIABILITY AND QUANTUM - WHETHER SUPREME

COURT SHOULD TAKE VIEW ON LIKELY OUTCOME

OF APPEAL

The plaintiff was awarded £49,969 dam-

ages in the High Court in his action against

the defendants in respect of injuries sus-

tained in the course of employment. The

defendants made no application to the trial

judge for a stay on the award. The defend-

ants appealed the decision to the Supreme

Court on liability and quantum, and sought

a stay on the High Court award. The Court

ordered a payment of £15,000 be made,

pending a determination on the question of

a further stay.

HELD

by the Supreme Court

(McCarthy and Egan JJ; Finlay CJ dissent-

ing) declining to grant any further stay on

the High Court award: (perMcCarthy J) the

trial judge delivered a reasoned decision

on liability which was not demonstrably

wrong, and there was no substance in the

appeal on quantum; (per Egan J) having

reviewed the transcript, but without taking

a final view, it was difficult to conceive that

the findings of the trial judge on liability

would be set aside and it was totally un-

likely that there would be any reduction in

damages.

Per

McCarthy J (Finlay CJ con-

curring) the factors to be taken into account

in applications for a stay include: (i) whether

liability is in issue; (ii) a heavy onus lies on