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
5
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
1