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GAZETTE
JULY-AUGUST 1979
O'Higgins C. J. traced the history of
the Malicious Injury Code back to
the Grand Jury (Ireland) Act 1836
which provided for the decision of
contested applications for compen-
sation by a judge sitting with a jury at
the Assizes. This jurisdiction was
transferred to the County Court by
the Local Government (Ireland) Act
1898. The Malicious Injuries
(Ireland) Act 1853 extended the code
to all damage caused by persons
engaged in unlawful assembly. There
was a further extension by Section
515 of the Merchant Shipping Act
1894 to cases involving damage to
vessels while afloat as a result of an
unlawful assembly. The significance
of Section 515 of the 1894 Act was
that it provided for the recovery of
compensation in respect of damage
actually caused outside the County
or District, by means of machinery,
hitherto only used in respect of
damage caused inside the County or
District.
O'Higgines C. J. then referred to
Section 685 of the 1894 Act which
provided as follows:
"(1)Where any district within which
any Court, Justice of the Peace,
or other Magistrate, has juris-
diction either under this Act or
under any other Act or at
Common Law for any purpose
whatever is situate on the coast
of any sea, or abutting on or pro-
jecting into any bay, channel,
lake, river, or other navigable
water, every such Court, Justice
or Magistrate, shall have
jurisdiction over any vessel being
on, or lying or passing off, that
coast, or being in or near that
bay, channel, lake, river, or
navigable water, and over all per-
sons on board that vessel or for
the time being belonging thereto,
in the same manner as if the ves-
sel or persons were within the
limits of the original jurisdiction
of the Court, Justice or
Magistrate.
(2) The jurisdiction under this Sec-
tion shall be in addition to and
not in derogation of any jurisdic-
tion or power of a Court under
the Summary Jurisdiction Acts."
O'Higgins C . J . found that Section
685 of the 1894 Act, which dealt
with Courts having jurisdiction in
districts situate on the coast of the
sea or navigable waters, extended the
jurisdiction of such Courts over any
vessel lying or passing off such coasts
as if such vessel were within the limits
of the original jurisdiction of the
Court. This meant in relation to a
County that it extended such juris-
diction over the vessel as if it were
lying or placed inside the County and
not outside it.
Held (O'Higgins C.J. and Henchy
J.) that the first question in the Case
Stated should be answered in the
negative but that the second question
should be answered in the affirmative.
William Browne v. Donegal County
Council
- Supreme Court (per
O'Higgins C. J. and Henchy J. with
concurring judgments from Griffin,
Parke and Kenny JJ.) — 9 February
1979 — unreported.
MISREPRESENTATION
Substantial
mis-statement
by
Defendant Company of wages paid
annually
declared
"fraudulent"
misrepresentation — recovery of
monies
paid
Into
Court
by
Underwriters on foot of void Policy,
not decided.
The Plaintiffs were members of
Underwriters at Lloyds and brought
the Proceedings as nominees of such
Underwriters. The first Defendant
was an infant who instituted
proceedings against the second
Defendant for injuries sustained at
work. The Plaintiffs took over
conduct of the proceedings on behalf
of their insured (the second
Defendant) on foot of their
employer's liability policy and
authorised a lodgment of £39,050
with a denial of liability. Prior to
acceptance by or on behalf of the first
Defendant of the monies lodged in
Court the Plaintiffs ascertained that
there had been substantial mis-
statements by their insured (second
Defendant) in respect of the amount
of wages paid and as this infor-
mation was the basis for the
calculation of the premium, the
Plaintiffs informed the second
Defendant that the policy was void
and they were accepting no
responsibility for claims on foot of
such policy. The Plaintiffs then
instituted these proceedings against
the first Defendant for an Order to
have the money in Court in the action
between the two Defendants paid out
to the Plaintiffs and for declarations
against the second Defendant that the
policy was null and void and that the
misrepresentation was fraudulent.
Held:
(per McWffiiam
J.)
that:
(1) The contract of insurance was
null and void;
(2) In absence of evidence on behalf
of the second Defendant to prove
the mis-statements were innocent
the misrepresentation
was
fraudulent;
(3) An order could not be made in
this action directing money
lodged in Court in another action
to be paid out but it would
appear contrary to natural
justice that the Plaintiffs could
not apply to have ownership
determined in the action in which
the money was lodged in Court
by mistake or fraud.
Duncan Stevenson McMillan and
John Jervols v. Patrick Carey and W.
H.
Ryan Limited
— High
Court (per
McWilliam
J.)
18 December 1978 —
unreported.
PRIVATE INTERNATIONAL
LAW
Proper Forum to Decide Custody of
Children
This case arose from the removal
in March 1979 of three infant
children from the custody of their
mother (the Plaintiff) in Alberta,
Ca n a d a, by their father (the
Defendant) who brought them to
Ireland.
The Plaintiff and Defendant were
married in Calgary, Alberta, in April
1965, the Plaintiff being a native of
Alberta and the Defendant being a
native of Derry. There were three
children of the marriage, born in May
1966, May 1968 and April 1970
respectively. The Defendant was a
university lecturer and the Plaintiff
was employed in data processing.
During ffie course of the marriage the
Plaintiff and the Defendant lived at
first in Calgary, and later in New
Mexico, USA, then in Durham,
England, and then again in New
Mexico.
Matrimonial difficulties arose and
by the year 1974 the marriage
appeared to have broken down. The
Plaintiff left the matrimonial home in
New Mexico, taking the three child-
ren with her, and returned to Alberta.
She resided continuously in Calgary
with the three children from that time
up to the present. The Defendant
continued to live in New Mexico and
visited the children from time to time
but they did not leave the jurisdiction