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GAZETTE
JULY 1994
Recent Irish Cases
Edited by Ra ymond Byrne, BCL, LLM, BL, Lecturer in Law,
Dublin City University
The following case summaries have been reprinted f r om t he
Irish Law
Times and Solicitors Journal
w i t h t he kind permission of t he publishers.
The Garda Representative Association, v
Ireland:
Supreme Court (Finlay CJ, Egan
and Denham JJ) 26 May 1993
Judicial Review - Garda Sfochána - Con-
ciliation and Arbitration Scheme - Inten-
tion of Garda Commissioner to incorpo-
rate parading time in ordinary hours of
work and re-roster 'special services' -
Whether certain proposals within scope
of conciliation council - Whether deci-
sion made without or in excess of jurisdic-
tion - Whether wrongful refusal to exer-
cise functions - Purpose ofjudicial review
proceedings
Facts
The chairman of a conciliation
council established with regard to staff
relations in the Garda Síochána ruled on
29 October 1987 that certain proposals
contained in two circular letters of that
year issued by and relating to the intention
of theCommissioner oftheGarda Síochána
(to incorporate parading time in the ordi-
nary hours of work and to re-roster the
'special services', were not appropriate
for consideration by the said conciliation
council.
The plaintiffs sought relief by way of
judicial review and sought a declaration
that the proposals contained in the two
c i rcu I ars fel I w ith i n the scope of the scheme
to provide for a conciliation and arbitra-
tion machinery for members of the Garda
Síochána. The plaintiffs also sought an
order that the chairman of the council
should decide that the proposals con-
tained in the circulars were appropriate
for discussion by the council. In a judg-
ment delivered on 19 April 1988 ([19891
ILRM 1) Murphy J refused to grant the
relief sought. The plaintiffs appealed.
Held
by the Supreme Court (Finlay CJ;
Egan and Denham JJ concurring) in up-
holding the decision of Murphy J and
refusing the relief sought by the plaintiffs:
(1) Judicial review is a review and not an
appeal and for the court to give a declara-
tion that the chairman of the Garda Con-
ciliation Council had been incorrect in his
interpretation as to whether proposals con-
tained in certain circulars were matters
within the scope of the conciliation coun-
cil, as distinct from declaring that the
interpretation was void or invalid, would
be to conduct such an appeal.
Chief Con-
stableof North Wales Police v Evans
[1982]
1 WLR 1155 approved. (2) This well-
established principle of judicial review
regarding the decisions of individuals or
tribunals of an administrative nature car-
rying out a decision making process, which
they were bound to do in a judicial man-
ner, was not merely an artificial restriction
imposed by procedural rules of the court,
but went to the root of the administrative
nature of such tribunals. (3) The scheme of
conciliation and arbitration between the
staff and officials of the gardaf provided
that certain decisions should be deter-
mined by the chairman of the conciliation
council and the parties were deemed to
have agreed to or accepted that provision.
(4) It would not be appropriate for the
court to interfere with a decision merely
on the basis that the court would have
raised different inferences and conclu-
sions or that the court was satisfied that the
case made against a decision was stronger
than the case made for it. It was sufficient
to state that it could not be said that the
chairman's decision was an irrational de-
cision in the teeth of common sense or
flying in the face of reason.
O'Keeffe v An
BordPleanálal
1992] ILRM237approved.
Reported at [1994] 1 ILRM 81
Damien Duff v District Judge Mangan:
Supreme Court (Finlay CJ, Blayney and
Denham JJ) 1 April 1993
judicial Review - Criminal Law -
Certio-
rari -
Challenge to jurisdiction of District
Court to try case - Refusal by justice to
hold enquiry as to complaint - Conviction
made without jurisdiction - Appeal to
Circuit Court as alternative remedy - Ap-
peal struck out - Right to be tried by due
process of law - Whether
certiorari
lies
when adequate alternative remedy inad-
equately prosecuted - Exercise of discre-
tion in granting remedy - Courts (No. 3)
Act 1986
Facts
The appellant appeared in the Dis-
trict Court on 22 January 1986 to answer
a number of summonses under the Road
Traffic Act 1961. At the hearing the de-
fendant's solicitor submitted that the sum-
monses grounding the complaints, having
been signed by a District Court clerk, were
invalid and the court had no jurisdiction
to hear the complaints. The district justice
refused to accede to the submission and
proceeded to convict the appellant. After
a number of adjournments, pending a
decision in the case of
State (Clarke) v
Roche
the appeal was listed for 7 June
1988. However, as the appellant was only
advised four days prior to the appeal he
sought an adjournment which the State
resisted and the appeal was struck out.
On 28 November 1988 Johnson J
granted the appellant leave to apply for
certiorari
on the grounds that: (i) at the
date of the hearings the constitutionality
of the powers of a District Court clerk to
receive a complaint and issue a summons
were queried and following the decision
of the Supreme Court in
State (Clarke) v
Roche
the procedure for commencing
summonses in the District Court was al-
tered by the Courts (No. 3) Act 1986 and
it was submitted that the respondents had
exceeded their jurisdiction in convicting
on foot of the summonses before them and
(ii) four days' notice of the date of the
appeal was inadequate and unconstitu-
tional.
On 13 March 1989 Lardner J refused
the application for
certiorari
referring to
the fact that the appellant did not attend
the Circuit Court appeal and to the sub-
mission by the State that the validity of
summonses was a matter of defence. The
appellant appealed to the Supreme Court.
Held
by the Supreme Court (Denham J;
Finlay CJ and Blayney J concurring) in
allowing the appeal: (1) The district judge
erred in law, within jurisdiction in deter-
mining that he could hear the case with-
out an inquiry as to the complaints and
summonses, but he exceeded his jurisdic-
tion in then proceeding to hear the case.
(2)
Certiorari
is a discretionary remedy
which will be cautiously granted where
there is an adequate alternative remedy
which has been inadequately prosecuted.
(3) In all the circumstances of this case
which arose in the midst of developing
law on the making of a complaint and the
issuing of a summons it is appropriate to
grant the order of
certiorari a
nd quash the
orders against the appellant.
Reported at [1994] 1 ILRM 91
McC. v McC.:
High Court (Costello j) 22
June 1993
Conflict of Laws- Enforceability of foreign
maintenance order in Ireland - Mainte-
nance order capable of being varied un-
der Hong Kong law in changed circum-
stances - Whetherjudgment of Hong Kong
court 'final and conclusive'
Facts
The plaintiff and defendant, having
been married in England in 1961, were
divorced in 1986 in the District Court of
Hong Kong on the application of the plain-
tiff wife. By ancillary order, a mainte-
nance order was made for certain lump
sums and periodical payments to be paid
by the defendant to the plaintiff. The lump
sums were paid as ordered, as were the
periodical payments until 15 June 1989,
when they ceased. The defendant, an Irish
citizen, returned to Ireland and the plain-
tiff instituted proceedings in the Eastern
Circuit claiming arrears of maintenance.
Themaintenance order could, under Hong
Kong law, be varied retrospectively and
the defendant raised its enforceability as a
defence. By consent, this question was
tried as a preliminary issue. It was decided
in the Circuit Court that the Hong Kong
order was enforceable in Ireland and the
defendant appealed to the High Court
against this decision.
Held
by Costello J in affirming the deci-
sion of the Circuit Court and returning the
matter for hearing in the Eastern Circuit: