The Gazette 1992

GAZETTE

SEPTEMBER1992

ABLE IN TAXATION - PERSONAL INJURIES ACTION -

LAW REFORM - WHETHER NEED TO ALTER PRE-

TRIAL PROCEDURES FOR MEDICAL REPORTS - Rules

of the Superior Courts 1986, 0.99, r.37(8) and (18)

The plaintiff's personal injury action against

the defendant was listed for 30 and 31 May

1990. Evidence was heard on 30 May but

the action was settled on 31 May. Counsel'

for the plaintiff had directed the attendance

of four doctors, but only one had given

evidence when the case was settled. All

four doctors had charged standby fees for

30 May, and the plaintiff's solicitor dis-

charged these fees. It was a long standing

practice that such standby fees were not

allowed on taxation by the Taxing Master,

but the Incorporated Law Society of Ireland

recommended that such fees be discharged.

It was argued that such fees should be

allowed on taxation, but the Taxing Master

declined to allow them. On appeal

HELD

by Costello J dismissing the appeal: (1)

although the listing system for personal

injuries actions in the High Court was not

very satisfactory, and this undoubtedly

caused inconvenience to all professional

witnesses who are not called on the date

scheduled for their evidence, it was not

reasonable, within the meaning of 0.99,

r.37(8) of the 1986 Rules, for professional

witnesses to charge standby fees, since it

was not suggested that they necessarily

suffer any financial loss for a day on which

they have mistakenly made themselves

available to appear in court, and any addi-

tional inconvenience is compensated for

by the payment of the attendance fee; (2)

while medical witnesses are in a special

category, since their inconvenience may be

accompanied by hardship to other people,

the courts took account of this by arranging,

for example, to have their evidence heard

out of turn or specially fixing a date for

hearing an action; (3) the practice of paying

such standby fees, albeit recommended by

the Law Society, did not mean that such

payment was either necessary for the at-

tainment of justice or for enforcing the

rights of either party, within 0.99, r.37(18)

of the 1986 Rules; and no practice could

confer a right to payment outside the terms

of 0.99. Principles in

Kelly v Breen

[1978]

ILRM 63 explained. Per Costello J: it would

be in the interests of the administration of

justice and of the medical profession if

agreement could be reached more fre-

quently to accept medical reports as evi-

dence without the necessity to call their

authors merely for the purpose of confirm-

ing and repeating their contents in court;

and consideration should be given to the

establishment of pre-trial procedures to

permit this to be done formally, as well as

the acceptance of reports, maps and photo-

graphs from other professional witnesses

without the necessity of having to prove

them formally.

O Laochdha v Johnson & Johnson (Irl) Ltd

High Court 6 November 1991

REVENUE - CORPORATION TAX - RELIEF - SALE BY

EXPORT OF GOODS MANUFACTURED IN STATE -

WHETHER GOODS PRODUCED FROM CUTTING,

FOLDING AND PACKAGING OF LARGE BALES OF

FABRIC 'MANUFACTURED' - Finance Act 1980, s.42

S.42 of the 1980 Act provides for relief from

corporation tax in respect of profits derived

from the sale by export of goods manufac-

tured in the State. The respondent company

engaged in the production of nappy liners

and J Cloths in the State which were then

exported. These were produced by placing

large bales of fabric (1,200 to 3,000 cubic

metres) intoa machine which, itwas agreed,

was expensive, sophisticated and required

special training for its operatives. In relation

to J Cloths, the machine was capable of

packaging as well as cutting the cloths. The

applicant Inspector of Taxes refused to al-

low the company relief from corporation

tax under s.42 of the 1980 Act. On appeal

the Appeal Commissioner held that the

relief should be granted. On case stated

HELD

by Carroll J affirming the decision:

looking at the end product in the instant

case, it was immediately clear that it was

commercially different from the bales of

fabric, adding more than 70% in value to

the J Cloths and 40% to the nappy liners; the

reduction in size had utility, quality and

worth which were due to the process car-

ried out by the company; and although the

process did not bring about any change in

the raw material itself (just as confetti was

unchanged from its original state as bulk

paper), this did not prevent it from being a

manufacturing process; and an ordinary

person, even if unaware of the actual proc-

ess, would consider it to be manufacturing.

Dicta in Cronin v

Strand Dairy Ltd

(High

Court, 18 December 1985) and

Irish Agri-

cultural Machinery Ltd v O Culachain

[1989] ILRM 478; [1990] 1 IR 535 applied.

Brosnan v Cork Communications Ltd High

Court 15 October 1991

REVENUE - VALUE ADDED TAX - BUSINESS OF RE-

LAY OF CABLE TELEVISION AND RADIO SIGNALS -

SIGNALS TRANSMITTED BY ELECTRICAL POWER -

WHETHER RELAYER OF SIGNAL ENGAGED IN SUP-

PLY OF ELECTRICITY - PRACTICE - CASE STATED -

INFERENCES FROM PRIMARY FACTS - WHETHER

REASONABLE - Value Added Tax Act 1972

The respondent company's business was

the relay of cable television and radio sig-

nals to domestic householders. The signals

were transmitted through cables to each

house by means of electric current, at a

voltage of about 0.001 of a volt. Such

current is not normally capable of any use

except for the relaying of broadcast signals.

The supply of electricity is zero rated for the

purposes of the 1972 Act. In the Circuit

Court, it was held that the respondent was

supplying electricity and that the zero VAT

rate was applicable. On case stated

HELD

by Carroll J reversing the Circuit Court: (1)

the findings of the Circuit Court judge,

whether viewed as a mistaken interpreta-

tion of the law or an unreasonable infer-

ence from the primary facts, could not be

upheld since they were inconsistent with

the finding that the company's business

was the transmission of TV and radio sig-

nals.

Mara v Hummingbird Ltd

[1982] ILRM

421 applied; (2) while the company used

electricity to carry the signals, this could not

be descroibed as supplying electricity in

the ordinary colloquial meaning of the

words.

Inspector of Taxes v Kiernan

[1982]

ILRM 13; [1981] IR 117 applied.

Corcoran v Minister for Social Welfare

High Court

June 1991

SOCIAL WELFARE - UNEMPLOYMENT ASSISTANCE -

WHETHER APPLICANT ENTITLED TO PAYMENT -

APPLICANT RETAINING VAN - WHETHER REFUSAL

OF ASSISTANCE REASONABLE - WHETHER APPLI-

CANT ENTITLED TO LEGAL REPRESENTATION AT

APPEALS HEARING - Social Welfare (Assistance Deci-

sions and Appeals) Regulations 1953 - Social Welfare

(Consolidation) Act 1981, s.138

The applicant received unemployment as-

sistance after his redundancy. A social wel-

fare Deciding Officer investigated whether

he was entitled to continue to receive the

assistance. Heconcludedthatthe applicant

was not entitled to a qualification certifi-

cate pursuant to s.138 of the 1981 Act,

having regard in particular to the appli-

cant's purchase of a Nissan van in a trade-

in of an older van which the applicant had

bought while he was employed. The appli-

cant had retained a firm of solicitors to deal

with his claim to assistance, and they wrote

to the Department asking to be represented

at any appeal hearing. The Department had

arranged an appeal for the day after this

letter was sent and the firm was not aware

of the hearing, although the applicant had

been informed of the hearing a week ear-

lier. At the appeal hearing, the Appeals

Officer upheld the decision not to grant the

applicant social assistance. A further ap-

peal, at which the applicant was repre-

sented by his solicitor, also declined to

grant the applicant the unemployment as-

sistance. On judicial review by the appli-

cant

HELD

by Murphy J dismissing the

application: (1) the Deciding Officer was

entitled to take account of the applicant's

personal circumstances, particularly his

continued ownership of the van bearing in

mind the obvious demands on his limited

resources; and the inference that he had a

more substantial income or an undisclosed

income in excess of the statutory maximum

permitted under s.138 of the 1981 Act

could not be described as unreasonable;

and similar reasoning applied to the deci-

sion of the Appeals Officer.

The State

(Keegan) v Stardust Victims Compensation

Tribunal

[1987] ILRM 202; [1986] IR 642

applied; (2) the 1953 Regulations did not

provide for a right to legal representation at

an appeals hearing, and the appeals notice

in the instant case had conformed to the

requirements of those Regulations; but, in

any event, the appl icant had not been preju-

diced by the absence of his solicitor from

the first appeals hearing; (3) there was no

basis for the proposition that the applicant

was entitled to be represented by legal

advisers at an appeal hearing, even where

such legal advisers notified the Department

of their intention to appear; nor was there

any basis for the suggestion that such repre-

sentation should be at the expense of the

State, bearing in mind that a refusal of

assistance was not final and could be re-

viewed in the light of new evidence as to

means. Dicta in

Flanagan v University Col-

lege Dublin

[1989] ILRM 469 discussed.

Per

Murphy J: although the solicitors had no

right to appear, it would have been churlish

if they had been refused permission to

appear.