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GAZETTE
SEPTEMBER 1979
later, on 10 February 1978, the com-
manding officer of the Naval Service
directed the prosecutor's discharge.
Two weeks later, on 23 February
1978, the prosecutor was brought
before the commanding officer of the
Naval Service at Haulbowline, and
was told he was being discharged and
the reason given for his discharge
was that he had failed to acquire the
necessary degree of efficiency. His
commanding officer took steps to
ensure that the decision to discharge
was not implemented for at least
seven days so that the prosecutor
could make any representations he
wished. He made no representations.
The discharge came into effect on 5
March 1978. Some months later he
instituted Certiorari proceedings to
quash his discharge on the grounds
that: (a) he was efficient; (b) he was
not informed of the reason for his dis-
charge until after his discharge; (c) he
was denied natural justice through
not being given an opportunity of
knowing or dealing with the case
against him.
Held
(per Henchy J.) that:
(i) All of the evidence showed that
the Prosecutor was discharged
because of a chronic and incurable
failure to achieve efficiency. He had
been warned from the beginning of
his career that it was necessary to
obtain a watchkeeper's certificate and
he was well aware that he had
signally failed to achieve the
necessary efficiency to obtain such a
certificate and that all the officers
connected with him were satisfied
that he would never qualify for that
Certificate.
(ii) He had been repeatedly told
that because of his lack of skill and
want of efficiency his chance of being
kept on would disappear unless there
was a dramatic improvement in his
performance. When the decision was
made to discharge him he was told he
was about to be discharged, and it
was directed that the discharge was
not to take place for at least seven
days so that he could make any
representations he liked.
(iii) Therefore he was fully
informed of his proven lack of
efficiency, he was given adequate
opportunity of meeting the case for
his discharge. The rule of "Audi
Alteram Partem" was therefore
properly observed.
The Prosecutor argued that he
should have been informed of the
case against him and have been given
an opportunity of meeting it before
the decision to discharge him was
first made on 10 February 1978.
Further held
(per Henchy J.),
however, that the crucial step was not
the decision to proceed to discharge
him, but the actual discharge on 5
March 1978. The Prosecutor had the
opportunity to be heard and had been
given a fair chance to forestall the
actual discharge.
Accordingly the appeal of the
Minister for Defence was upheld and
Order of Certiorari discharged.
The State (Duffy) v. Minister for
Defence — Supreme Court (per
Henchy J. with Kenny and Parke JJ.)
— 9 May 1979 — Unreported.
Summaries of judgments prepared by
John F. Buckley, George Gill, Joseph
B. Mannix, Franklin J. 0*Sulllvan,
Michael Staines and edited by
Michael V. O'Mahony.