The Gazette 1989

GAZETTE

MAY 1989

(ii) there was judicial support for the

proposition that decisions of the

Supreme Court by less than its full

complement of members might be

reviewed.

3. (Per Henchy and Griffin J. J. dissenting)

(i) the issue was ruled by the decisions

Corley -v- Gill

and

Dolan -v- Corn

Exchange;

and

(ii) accordingly, because all the evidence

which might have been adduced had not

been heard, the Case stated by the

Circuit Court was

ultra vires.

Raymond Doyle -v- Ciaran Hearne, Robert

Dunne and Brendan Keegan (Supreme Court,

Finlay C. J, Henchy, Griffin and McCarthy J.

J. - Walsh J. concurring with Finlay C. J.

and McCarthy J.) 31 July 1987.

[1988] ILRM

318.

PATRICK J. C. McGOVERN

RES JUDICATA

Whether e compromised consent High

Court Order sgsinst a County Council in

a claim under the Malicious Injuries Act

1981 is thereafter binding on third

parties bringing claims arising out of the

same incident in the Circuit Court.

The Appellants were the original

respondents in the Circuit Court to an

Application under the Malicious Damage Act

1981 for compensation for damage to

property owned by the applicants and stored

in a Hotel premises at the time that the Hotel

was destroyed by a fire.

An application for compensation by the

owners of the Hotel premises had previously

been decided by the Circuit Court in their

favour. This decision had been appealed by

the County Council to the High Court where

the parties compromised the case between

them and an order was made

inter alia

to the

following effect.

"That the sum of £845,000 awarded to

the applicant by the said Order for the

damage complained of in the Notice of

Application dated the 19th day of September

1978 be reduced to £422,500."

The application, the subject matter of the

present appeal, did not come on for hearing

in the Circuit Court until after the above

compromise had been reached. The

argument in the present case, in the Circuit

Court, centered on whether the finding that

the fire was malicious in the proceedings by

the owners of the Hotel premises bound the

County Council in the proceedings by these

applicants. The Circuit Court Judge found

that the County Council were so bound and

the County Council appealed this decision

to the High Court.

On appeal, Counsel for the Applicants

argued that the issue of liability for the fire

was

res judicata

and that the fact that it was

a judgement by consent did not affect its

capacity to be a judgment

in rem.

Counsel for the County Council sub-

mitted:-

1. That the consent order in the High Court

recognised that a substantial issue had

arisen on the question of malice and that

therefore the parties to that action had

compromised that substantial issue on

a commercial basis.

2. That if the proceedings had been other

than under the malicious injuries code

such a compromise could have been

made privately. The Order was

necessitated because the County

Council had no power to compromise

and therefore had to have a judgment.

3. If a local authority were estopped from

denying malice then in subsequent

proceedings the authority might be

prevented from relying on further

evidence which might have come to

hand since the first proceedings.

4. That if estoppel arose there would have

to be mutuality and it would have to

apply against all other persons injured

by the fire.

Lynch J. adopted the reasoning of the

Court of Appeal in Northern Ireland in the

case of

Sharon Shaw -v- James Sloan

and

Adrian Gribben and Frank Gribben

11982] N.I.

393. He found that the applicants sought to

rely on a judgment obtained by another

person with whom they were not in privity.

It was perhaps easier to see how injustice

could be worked in the converse case - if

one party should bring a claim under the

malicious code and should fail to establish

malice because of insufficiency of evidence

then all other persons injured by the fire

would be barred from maintaining a claim.

To deprive such a person of this access to

the Courts would be a grave injustica Whilst

there was a great deal to be said for treating

one of several cases as a test case binding

all other cases arising out of the same

circumstances that had not been done in this

case. The County Council had never lured

the Applicants into a false sense of security

and no question of any estoppel by their

conduct arose. He therefore reversed the

order of the Circuit Court refering the case

back to that Court so that all issues therein

might be tried.

McCarthy Construction Limited -v- the

County Council of the County of Waterford

- 6 July 1987 - (High Court per Lynch J.)

unreported.

DAIRE M . MURPHY

PROCEDURE

Validity of summonses - Conviction on

hearing in District Court within six

mon t hs of O f f e n c es -

wh e t h er

Defendant could raise on appeal the

defence open to him but not availed of

at the Summa ry Trial -

whether

initiation of proceedings in the District

Court within six months constituted a

valid complaint.

The Defendant was convicted on

1 January, 1986 of seven separate offences

under the Road Traffic Acts, all alleged to

have occurred on 11 September, 1985. A

fine with imprisonment in default was

imposed in respect of each summons. The

Defendant did not appear and was not

represented in the District Court but

appealed the District Court decision to the

Circuit Court.

In the Circuit Court the Defendant

submitted that the Summonses which had

been issued had been issued in accordance

with a procedure which, in the case of

the

State IClarke) -v- Roche

11987] ILRM 309 the

Supreme Court had already held to be

invalid. The Complainant, relying on

the

State IRoche) -v- Delap,

11980] I.R. 170

asserted that it was not open to the

Defendant to make this point on appeal. The

Defendant offered no further evidence in the

Circuit Court.

The matter then came before the Supreme

Court by way of a case stated from the

learned Circuit Court Judge wherein he

raised five questions for determination by

the Court as follows:-

(a)

Is the Respondent (Defendant) entitled

to raise the question of the validity of

the complaint in the Circuit Court at

the hearing of the appeal?

(b) If the answer to Question (a) is in the

affirmative, is the respondent's right

to raise the question of the complaint

affected by the fact that he did not

raise this issue in the District Court?

(c)

If the answer to the above Question

(a) is in the negative, are the facts that

the District Justice has made the

Orders herein and the Respondent has

lodged a Notice of Appeal to the said

District Court Orders and that the Res-

pondent has appeared in the Circuit

Court, sufficient to give jurisdiction to

the Circuit Court to hear these appeals?

(d) If the answer to Question (a) above is

in the affirmative, then on the evidence

in these cases before me, was there

sufficient evidence of the making of a

valid complaint?

(e)

Does the hearing of the case in the

District Court within six months of the

date of the offence amount to valid

complaint?

On the evidence given and accepted by

the learned Circuit Court Judge, the

Supreme Court was satisfied that, having

regard to the decision in

the State (Clarke)

-v- Roche,

no valid complaint had been made

prior to the issue and service of the

Summonses. Counsel for the Complainant

did not seriously dispute that, but rather

relied upon the initiation of the proceedings

before the District Justice within six months

as constituting a valid complaint under

Section 10 of the Petty Session (Ireland) Act

1851. Furthermore, Counsel for the

Complainant argued that if no complaint had

been validly made this went as a

fundamental matter to the jurisdiction of the

Court to entertain the charges in the first

instance. In such circumstances the District

Court Orders could only be set aside on the

basis of judicial review and not, as in the

instant case, by way of appeal to the Circuit

Court. The Complainant, in his submissions

relied on the following authorities:-

The Minister for Agriculture -v- Norgro,

[1980] I.R. 155;

Attorney General (McDonnell) -v- Higgins,

[1964] I.R. 374;

D.PR

-v- GUI,

11980 II.R. 263;

People -v- Keogh,

[1985] I.R. 444;

State (Roche) -v- Delap,

11980] I.R. 170;

State (A.G.) -v- Connolly,

[1948] I.R.176;

State (McLoughlin) -v- Shannon,

11948] I.R.

439;

A.G. -v- Mai/en,

11957] I.R. 344.

Counsel for the Defendant advanced the

following arguments:-

1. Failure to make a valid complaint within

six months of the offences was a matter

of defence. In view of the fact that the

Circuit Court appeal was a hearing

novo,

the Defendant was entitled to

raise the point and it was immaterial

whether or not it had been raised in the

District Court.

iii