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GAZETTE
DECEMBER 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
Irish Law
Times and Solicitors Journal
with the kind permission of the publishers.
Government of Canada v Employment Ap-
peals Tribunal (Burke, Notice Party) Su-
preme Court 12 March 1992
CONSTITUTION - INTERNATIONAL RELATIONS -
SOVEREIGN IMMUNITY OF FOREIGN GOVERNMENT
- WHETHER ABSOLUTE OR RESTRICTED TO MAT-
TERS RELATING TO PUBLIC BUSINESS AND POLICY
OF FOREIGN GOVERNMENT - DEVELOPMENTS IN
INTERNATIONAL PRACTICE - CHAUFFER OF EM-
BASSY OF FOREIGN GOVERNMENT - DISMISSAL -
WHETHER SOVERIEGN IMMUNITY APPLIED -
WHETHER CLAIM FOR UNFAIR DISMISSAL MAY BE
MADE TO EMPLOYMENT APPEALS TRIBUNAL - Con-
stitution, Article 29.3 - Unfair Dismissals Act 1977, s. 10
The notice party, Mr Burke, had been em-
ployed as chauffeur to the Canadian am-
bassador in Ireland in the Canadian Em-
bassy in Ireland until May 1988, when he
was dismissed. He instituted unfair dis-
missal proceedings pursuant to the 1977
Act. At the hearing of his case before the
Employment Appeals Tribunal, the Cana-
dian Government's solicitor argued that the
Tribunal had no jurisdiction to hear the
matter, claiming that the Government of
Canada was entitled to rely on the doctrine
of sovereign immunity. The Tribunal re-
jected this argument and held that it had
jurisdiction to hear the matter; the Cana-
dian Government then withdrew from the
proceedings. The Tribunal went on to con-
clude that Mr Burke had been unfairly
dismissed and awarded him damages. The
Government of Canada sought judicial re-
view of the Tribunal's decision, but this
application was rejected in the High Court
by Mackenzie J: [1991 ] ELR 57. On appeal
by the Government of Canada
HELD
by the
Supreme Court (Finlay CJ, Hederman,
McCarthy, O'Flaherty and Egan JJ) allowing
the appeal: (1) the case should be deter-
mined by reference to the generally recog-
nised principles of international law, in
accordance with Article 29.3 of the Consti-
tution; and in this context, the Court was
entitled to take account of developments in
other jurisdictions and was not confined to
examining whether the Irish legislature or
executive had not expressly addressed the
doctrine of foreign sovereign immunity; (2)
having regard to developments in other
jurisdictions since World War II in particu-
lar, it was clear that other States had aban-
doned the notion of an absolute sovereign
immunity; such an absolute immunity was
relevant only to a time when a State was
concerned with the conduct of its armed
forces, foreign affairs and the operation of
its currency; but it was no longer appropri-
ate to an era when so many States were
engaged in the business of trade, whether
directly or indirectly; (3) the more restric-
tive form of foreign immunity now recog-
nised by most States was one which at-
tached to the actual public business or
policy of a foreign State, but no immunity
attached to private trade conducted by
States.
Dicta
in
Zarine v Owners
of SS
Ramava [1942] IR 148 approved.
Dicta
in
Saorstat and Continental Steamship Co v
Rafael de las Morenas
[1945] IR 291
doubted. I Congresso |1983] 1 AC 244
approved; (4) the contract between Mr Burke
and the embassy to act as chauffeur for the
ambassador was not a commercial contract
in the ordinary sense and it involved, in
effect, an element of trust and confidential-
ity which was connected with the Govern-
ment of Canada's public business and inter-
ests; and accordingly the Government of
Canada was entitled to rely on the restricted
form soveriegn immunity in the instant case;
(5) the application for judicial review was
not premature in that the Employment Ap-
peals Tribunal had made a determination
and the Government of Canada was not
required to await enforcement proceedings
(if any) by the Minister for Labour under
s.10 of the 1977 Act.
A.S. v S.S. Supreme Court 21 February
1992
FAMILY LAW - CUSTODY OF CHILDREN - WELFARE
AS PARAMOUNT CONSIDERATION - PRACTICE -
SUPREME COURT - FUNCTION OF COURT ON AP-
PEAL - FINDINGS BY TRIAL COURT - Guardianship of
Infants Act 1964, s.11
The plaintiff wife instituted proceedings
under the Judicial Separation and Family
Law Reform Act 1989 seeking a judicial
separation from the defendant husband.
She also claimed custody of the children of
the marriage, three girls aged from 13 to 7.
The trial judge (Morris J) granted the judicial
separation. He found that the plaintiff had
left the marriage to form a relationship with
another married man, that the plaintiff was
not truthful in her evidence as to the breakup
of her marriage and that on occasion she
had left the children alone at night when
she went out socialising. He also found that
the man with whom she was having a
relationship had nothing to offer the chil-
dren in the way of a father figure. Morris )
considered that the defendant husband was
a hard-working and retiring man, and that
while he was strict this would have a posi-
tive effect on the children, whereas the
plaintiff's lifestyle was not likely to have a
beneficial effect on them. The trial judge
held that, although the defendant husband
would be away from the family home for
most of the day (during which time he
stated he would employ a housekeeper),
the welfare of the children indicated that he
should be given custody of them. On ap-
peal by the plaintiff as to the custody of the
children
HELD
by the SupremeCourt (Finlay
CJ, Hederman, McCarthy, O'Flaherty and
Egan JJ) dismissing the appeal: (1) the Court
should be slow to interfere with the findings
of a trial judge in relation to conclusions
drawn from primary facts which are sup-
ported by the evidence given.
Hay v
O'Gradyi
SupremeCourt, 4 February 1992)
(below) applied; (2) since the trial judge had
had regard to the welfare of the children as
the paramount factor and had taken into
account the totality of the picture presented
to the court, his decision to award custody
to the defendant father should not be inter-
fered with. Per curiam: while previous cases
in relation to the question of custody pro-
vide guidance on the general principles
applicable, each case tends to turn on its
own individual circumstances.
Dicta
in
MacD. vMacD.
(1979) 112 ILTR 60 dis-
cussed.
K. v K. Supreme Court 13 February 1992
FAMILY LAW - MAINTENANCE - DESERTION BY
SPOUSE - WHETHER BAR TO MAINTENANCE - CON-
STRUCTIVE DESERTION - WHETHER INTERESTS OF
IUSTICE IN FAVOUR OF GRANTING MAINTENANCE
- MAINTENANCE OF CHILDREN - WHETHER
CHANGED CIRCUMSTANCES - Family Law (Mainte-
nance of Spouses and Children) Act 1976, s.5 - judicial
Separation and Family Law Reform Acl 1989, s.38
The applicant wife sought maintenance
from the respondent husband for herself,
and a variation of maintenance previously
granted to their children. In previous judi-
cial separation proceedings, the High Court
had found that the applicant had construc-
tively deserted the respondent primarily
arisingfrom her morbid jealousy which had
resulted in the respondent leaving the fam-
ily home. This decision was confirmed on
appeal by the Supreme Court. In the instant
application in the High Court, Costello )
had held that the applicant was barred by
s.5 of the 1976 Act from claiming mainte-
nance by virtue of the constructive deser-
tion. He also held that she was not entitled
to the benefit of the amendment to s.5 of the
1976 Act effected by s.38 of the 1989 Act,
by which maintenance could be awarded
notwithstanding desertion where it would
be repugnant to the interests of justice not to
make such an order. Costello ) also de-
clined to increase the maintenance previ-
ously awarded to the children of the mar-
riage. On appeal
HELD
by the Supreme
Court (Finlay CJ, Hederman and McCarthy
JJ) allowing the appeal in part only: (1) the
definition of 'desertion' in s.5 of the 1976
Act clearly and unambiguously applied to a
case of constructive desertion, such as oc-
curred in the instant case; (2) the applicant
was not entitled to the automatic benefit of
the exemption to s.5 of the 1976 Act which
had been inserted by s.38 of the 1989 Act,
and that its true interpretation placed a
heavy onus on a person seekingto claim the
benefit of an otherwise absolute ban on
payment of maintenance to a spouse who
had deserted the other spouse; (3) the find-
ing that the applicant had a morbid jealousy
of the respondent did not amount io a
finding that the applicant was a person ot
unsound mind deserving of special protec
tion by the courts; and in fact the applic ant
I