The Gazette 1992

GAZETTE

SEPTEMBER 1992

Recent Irish Cases

Compiled by Raymond Byrne, BCL, LLM, BL, Lecturer in Law,

Dublin City University.

The following case summaries have been reprinted from the

Iriah Law

Tlmaa and Sollcltora Journal

with the kind permission of the publishers.

Rooney v Minister for Agriculture and Food

and Ors Supreme Court 19 December 1991

ADMINISTRATIVE LAW — ANIMAL DISEASE — ACT

PERMITTING STATUTORY SCHEME OF COMPENSA-

TION — REQUIRING MINISTERIAL ORDER FOR IMPLE-

MENTATION —ABSENCE OF ORDER — NON-STATU-

TORY GRANT SCHEME IN OPERATION — WHETHER

IN BREACH OF CONSTITUTIONAL RIGHTS — Diseases

of Animals Act 1966, ss. 17, 22 — Bovine Tuberculosis

(Attestation of the State and General Provisions) Order

1978.

In 1984,20 of the plaintiff farmer's cattle were

slaughtered as 'reactor' cattle, that is, they

were deemed to be infected with bovine TB in

accordance with the procedures provided for

under the 1978 Order. Under a non-statutory

scheme operated by the defendant Minister,

the plaintiff was paid certain sums in relation

to each head of cattle so slaughtered. The

plaintiff instituted proceedings claiming, in-

ter alia, that the sums so paid were inadequate

and thus in breach of the terms of the Consti-

tution and that he should have been paid full

compensation under the terms of the 1966

Act. Ss. 17 and 22 of the 1966 Act provide that

the defendant Minister may institute a scheme

of compensation by which the appropriate

levels of compensation for slaughtered ani-

mals could, in the event of disagreement

between the owner and the Minister, be re-

ferred to arbitration. No such statutory scheme

had been instituted. In the High Court, the

plaintiff's claim was dismissed by Lavan J. On

appealed

Held

by the Supreme Court

(McCarthy, O'Flaherty and Egan JJ) dismiss-

ing the appeal: si nee the non-statutory scheme

constituted a reasonable scheme for provid-

ing a measure of assistance to owners of

diseased cattle, the Court had no power to

review the course of action adopted by the

Minister in the instant case; and indeed it

might be that the Court had no function to

enjoin the Minister to introduce a statutory

scheme under s.20 of the 1966 Act.

Pine

Valley Developments Ltd v Minister for the

Environment

[1987] ILRM 747; (1987} IR 23

and

The State (Sheehan) v Government of

Ireland

[1987] IR 550 applied.

Semble:

the

Minister was providing a reasonable measure

of compensation in the non-statutory scheme,

and this complied with any constitutional

requirements in this regard, if any general

constitutional right to compensation existed.

Gallagher v Revenue Commissioners High

Court 11 January 1991

ADMINISTRATIVFLAW — FAIR PROCEDURES — SUS-

PENSION FROM EMPLOYMENT — CIVIL SERVANT —

WHETHER SUSPENDED PERSON AWARE OF REASONS

FOR SUSPENSION—WHETHER SUSPENSION BECAME

INVALID — WHETHER DELAY IN PROCEEDINGS IN-

VALIDATES FURTHER ACTION

DISCOVERY OF

DOCUMENTS —WHETHER LEGAL REPRESENTATION

AT DISCIPLINARY HEARING TO BE GRANTED.

The plaintiff, an officer of customs and excise,

was interviewed in July 1985 about the sei-

zure of certain vehicles for non-payment of

relevant duties. The plaintiff was moved to

other duties at that time. The officer investi-

gating the seizures completed a written report

in December 10985. Nothing further oc-

curred until March 1987 when the seizures

were further investigated and the plaintiff was

interviewed in relation to 41 files in June and

October 1987. During these interviews, it

was put to the plaintiff that he had,

inter alia,

understated the value of vehicles seized and

had fictionalised certain reports. By letter

dated 25 January 1988, the plaintiff was in-

formed that he was suspended form duty as it

appeared he was guilty of grave irregularity

and misconduct. His solicitors immediately

wrote inquiring about the nature of the mat-

ters for which he was suspended, and were

informed that details would be given at the

end of March 1988. No details were fur-

nished, and the solicitors wrote again in Oc-

tober 1988 seeking details. Details were fur-

nished in January 1989, involving 18 sepa-

rate transactions. The plaintiff issued pro-

ceedings contending,

inter alia,

that the sus-

pension was invalid, that he was entitled to

transcripts of the interviews conducted in

June and October 1987 and to be legally

represented at the oral hearing of the charges.

Held

by Blayney ): (1) although the plaintiff

had not been informed in January 1988 of the

reason for the suspension, it was not invalid

for this because the plaintiff must have been

well aware of the basis for the suspension,

and this was confirmed by the delay in seek-

ing particulars of the reasons for the suspen-

sion.

Flynn vAn Post

|1987) IR 68 applied; (2)

the suspension after May 1988 was invalid.

Flynn v An Post

[1987) IR 68 applied; (3)

unlike the situation involved in delays in the

processing of criminal charges, the delay in

proceeding with the disciplinary charges

against the plaintiff was not a ground for

prohibiting them, as the issues raised were

not criminal in nature but involved the law of

master and servant; however, the investiga-

tion should have been completed very much

sooner and the delay shou Id be considered by

the Revenue authorities in the hearings them-

selves in connection with the plaintiff's abil-

ity to deal adequately with the details of the

charges.

The State (O'Connell) v Fawsitt

[19861

IR 362 and

The State (Cuddy) v Mangan

[1988] ILRM 720 distinguished; (4) the plain-

tiff was entitled to full disclosure of the tran-

scripts of the interviews conducted in June

and October 1987 and also the evidence to

be tendered against him; (5) having regard to

the extremely serious consequence of dis-

missal for the plaintiff if the charges against

him were establ ished and to the large number

of charges against him and that further crimi-

nal proceedings could, ultimately, result he

was entitled to legal representation at the

disciplinary hearing. Dicta in

Flanagan v

University College Dublin

11989] ILRM 449

applied.

In re Atlantic Magnetics Ltd Supreme Court

December 1991

COMPANY — EXAMINER — APPOINTMENT —

WHETHER COURT TO CONSIDER WHETHER COM-

PANY HAS PROSPECT OF SURVIVAL — ORDER AU-

THORISING EXAMINER TO BORROW FOR SPECIFIED

PURPOSES—WHETHER BORROWINGS MAY BE BASED

ON ASSETS SUBJECT TO FIXED CHARGE — INTERPRE-

TATION — Companies (Amendment) Act 1990, ss.2,9,

11,29

In the High Court, an examiner had been

appointed to the company under the 1990

Act. Lardner J held that the test under s.2 of the

1990 Act as to whether an examiner should

be appointed was whether the company had

a reasonable prospect of survival. He also

authorised the examiner, under s.9 of the

1990 Act, to exercise the power of borrowing

sums not exceeding £429,000 for the purpose

of continuing the company, and that monies

so borrowed be treated as expenses properly

incurred in the examinership under s.29 of

the 1990 Act and be repaid in full out of the

assets of the company in priority to any other

claim, whether secured or unsecured. Among

the company's assets was a sum of £229,000

in an account with the Bank of Ireland, which

was subject to a fixed charge held by the

Bank. The Bank was authorised by the High

Court to have recourse to this sum in facilitat-

ing borrowing by the examiner. The Bank

appealed against the order appointing the

examiner and also against the order authoris-

ing the borrowing.

Held

by the Supreme

Court (Finlay CJ, Hederman, McCarthy,

O'Flaherty and Egan JJ) dismissing the appeal:

(1) since the terms of s.2 of the 1990 Act were

strongly in favourof granting the appointment

of an examiner, the test as to whether an

examiner should be appointed was simply

whether the company had a prospect of sur-

vival, and it was not appropriate at the date of

appointment for the court to enquire whether

the company had a reasonable prospect of

survival.

Per

McCarthy J (concurring in the

order): the Court should not consider the

question of prospect of survival at all. Passage

in Keane,

Company Law in Ireland,

2nd ed,

p.455 discussed; (2) the High Court was cor-

rect in authorising the examiner's borrowing

under s.9 of the 1990 Act, and in allowing

such to repaid in priority to all other claim

under s.29of the 1990 Act; and although s.11

of the 1990 Act referred to the sale of assets

subject to fixed charges and to repayment of

the proceeds of such sale to the holder of the

fixed charge, the order made in the instant

case was not affected by s.11; and any inter-

pretation of s.11 which would limit the bor-

rowing power of the examiner would allow

the holder of a fixed security to prevent the

examiner exercising any effective power to

borrow and would be inconsistent with the

plain intention of the 1990 Act.

In re Jetmara Teo High Court 10 May 1991

COMPANY — EXAMINER — REPORT — WHETHER

CREDITOR HAVING STANDINGTOOBJECTTOSCHEME

SUGGESTED BY EXAMINER — BANK'S ENTITLEMENT

TO REPAYMENT DEFERRED BY SCHEME — FRAUD BY

DIRECTOR OF COMPANY PRIOR TO AND AFTER AP-

POINTMENT OF EXAMINER — WHETHER SCHEME

SHOULD BE APPROVED — Companies (Amendment)

Act 1990, ss.22, 29.

An examiner was appointed to the company