The Gazette 1987

GAZETTE

MARCH 1987

The Revenue Commissioners -v- No.

(101

ILTR 197) decided in the year 1965, Judge

Ryan regarded this test as being "too

artificial for Irish conditions".

It was considered that a sufficient guide

was suggested in

Cavan Co-Operative

Society

(1917). 2 IR 608.

"Husbandry presupposes a connection

with land and production of crops or food

in some shape."

It was held that the activity in which the

Appellants were engaged was husbandry:

it was a development in modern farming.

Accordingly, the Appellants in using the land

for the purposes of rearing and fattening

pigs and generally looking after their health

and welfare were farming the lands.

HELD:

The decision of the Appeal Commission-

ers was not correct in law and their

question was accordingly answered in the

negative.

Knockhall Piggeries and Others and J. H.

Kerrane, inspector of Taxes — High Court

Iper Barrington J.) 2 May 1985, (1985)

ILRM 655.

Desmond Rooney

BUILDING SOCIETIES

Registration of change of Rules

of Building Societies — Review of

Building Societies Act 1 9 76

Whether altered rules contravened

Sections of the Building Societies

Act.

The Plaintiff Society altered its rules by

Special Resolution to comply with a

Statutory Instrument made by the Minister

for Industry Trade Commerce and Tourism

pursuant to the Mergers, Take-Overs and

Monopolies (Control) Act 1978. The

procedure for altering rules is provided

for by Section 12 of the 1976 Building

Societies Act and this Section also provides

for an appeal to the Court against the refusal

of the Registrar to register a proposed

alteration of the rules. Under the terms of

Section 12, the Registrar must register an

alteration of the rules of the Society if he

finds that they are in accordance with the

Act.

In this case the Registrar refused to

for two categories of Director and different

voting rights for different types of investor

(member).

The proposed rules provided for a

procedure whereby investment directors

would be appointed, removed and replaced

by holders of investment shares and that

similarly ordinary directors would be

appointed, removed or replaced by holders

of savings shares. The Registrar decided

that these provisions were not in

accordance with the statutory provisions

and "in particular Section 10 of the Building

Societies Act 1976". The Court held that

these proposed rules in respect of different

classes of Directors were not prohibited by

the Act. Further in dealing with the

management of the Society the proposed

rules provided for the appointment of an

alternate Director by a Director of the

Society. It was held that these proposed

rules were lawful.

The Court further held that in this

particular case the proposed rules providing

for the issue of shares which had only

qualified or no voting rights or which

provided that the voting rights attached to

some shares could be more weighty than

others was not in contravention of the

Statute. This was so because the Statute

particularly provided in Section 22(7) that

certain Societies which complied with the

provision of Section 22 (7)(b) could issue

shares to which voting rights did not

attach.

The Court held that the Act of 1976 must

be considered as setting out a general

framework for Building Societies but does

not purport to legislate in detail for the

government of each Society. The Minister

has extensive powers under Section 10

(Subsection 3), of the Act, allowing him the

means of ensuring control. The Act was not

intended, however, to burden the registrar

of Friendly Societies with the type of power

which is vested in the Minister, which is

essentially power to be exercised to control

policy. The Registrar has a function to the

extent that when the Minister does prescribe

some such regulation under Section 10 of

the Act, the Registrar has a duty to perform

as laid down in the Act, but otherwise his

duty is to see that the rules made are not

in conflict with the provisions of the Statute.

The Court held that in the present case the

Registrar's objections could not be sustained

and that, in effect, he strayed into the

field of policy which is reserved to the

Minister.

The appeal was dismissed and the order

of the High Court confirmed.

In the matter of the Building Societies Act

1976. The Irish Civil Service Building

Society versus the Registrar of Friendly

Societies (1985) IR 179.

Frank O'Flynn

GARDA COMPENSATION

Garda Siochana (Compansatlon) Acts

1 9 4 1 - 1 9 4 6 - Statutory Interpre-

tation — Casa Stated to Supremo

Court — Whether In Assessing com-

pensation for Financial Losa regard

should bo had to a Ponaion already

payable.

The President of the High Court stated a

case for the Supreme Court in the hearing

of an action brought by the plaintiff against

the defendant pursuant to the provisions of

the Garda Siochana (Compensation) Acts

1941 — 1945 for personal injuries

maliciously inflicted upon him in the course

of the performance of his duties as a

Member of the Garda Siochana in 1983. On

the date the injuries were inflicted the

plaintiff was 43 years old. As a result of his

injuries he was discharged from the Garda

Siochana in June, 1985. If the injuries had

not been sustained and he remained a

Member of the Garda Siochana he could

have retired at any time between December,

1990 and April, 1997. In June, 1985 on

retirement the plaintiff was awarded a

pension of £5,993 per annum and a

retirement gratuity of £11,823.00. If he had

continued as a Member of the Garda

Siochana until normal retirement he would

have received a pension of 50% of his then

basic pay and a gratuity equal to one and

a half times his basic pay.

At the hearing before the President of the

High Court the Defendant requested the

Judge to take into consideration by way of

deduction from the actuarial calculations of

the loss of salary an actuarial calculation of

the value of the special pension being paid

to the plaintiff and that not to do so would

be to compensate the plaintiff twice for his

financial loss incurred.

The plaintiff contended that the Pension

should not be taken into account in deter-

mining the actual financial loss suffered by

the plaintiff.

The question of law put by the President

of the High Court for the opinion of the

Supreme Court was whether in assessing

the compensation payable to the plaintiff for

the financial loss, he should have regard to

the pension now payable to him and deduct

the value of this pension from the loss

proved.

HELD:

1. S.10, Paragraph 3 of the Act of 1941

requires the Judge to take into

consideration the fact, if it be a fact, that

the plaintiff was entitled under the

relevant Acts and Statutory Orders and

Regulations to a pension allowance or

gratuity out of public funds in respect of

the injuries which are the subject of the

application. The word "shall take into

consideration" in the statutory context

in which they appear mean that they are

to be included in the mathematical cal-

culation and are not to be construed

as simply a direction to consider the

matter in the course of an intellectual

exercise.

2. Accordingly if the earning power of

the plaintiff was not in any way

diminished it is clear that no

compensation could be awarded under

that heading. If his earning power is

totally lost or simply diminished, then the

compensation to be awarded should be

the sum appropriate under that heading

to the actual and prospective economic

loss proved.

3. The answer to the question posed by

the President of the High Court is that

the value of the special pension should

be deducted from the value of the

economic loss proved.

McCarthy J.

dissenting, held that S.10 Sub-section 3

requires the Judge in fixing the amount

of compensation to bear in mind the fact

that the plaintiff is entitled to the special

pension. It does not follow that the

whole or any part of the annual sum

or any capital value of the same

should be deducted from the total sum

assessed or from any item which goes

to make up the total sum. The question

from the President should therefore

be answered by stating that in assessing

the compensation payable not for

financial loss but as a whole the Judge

should take into consideration the fact

that the plaintiff is in receipt of the

special pension but should disregard its

amount.

Gerald O'Looney -v- The Minister for the

Public Service. Supreme Court (per Waish

J.) 14 December 1986.

Eugene O'Sulllven