The Gazette 1993

GAZETTE

APRIL 1993

1941, s.28 - Criminal Justice Act 1951, s.2

The applicant had been charged with a

number of indictable offences, involving steal-

ing and malicious damage to property. With

his consent, he was tried summarily in the

District Court. He was convicted and sen-

tenced to three terms of one year's imprison-

ment in respect of three ofthe charges, two of

the terms to run consecutively. The trial

judge imposed these sentences in purported

exercise of powers in s.2 of the 1951 Act,

which empowers the District Court to try

summarily certain indictable offences, in-

cluding the offences with which the appli-

cant was charged. However, the applicant

sought judicial review on the ground that s.5

of the 1884 Act limited the District Court to

imposing a sentence of three months on a

young person tried summarily for an indict-

able offence. 'Young person' was defined by

s.9 ofthe 1884 Act, as amended by s.28 ofthe

1941 Act, as a person between the age of 15

and 17. The applicant fell into this age cat-

egory. In the High Court O'Hanlon J granted

the judicial review and quashed the sen-

tences, holding that they were ultra vires s.5

of the 1884 Act. On appeal HELD by the

Supreme Court (Finlay CJ, O'Flaherty and

Egan JJ) affirming the High Court: s.5 of the

1884 Act constituted a specific enactment

establishing a very definite and important

right for young persons, and since s.2 of the

1951 Act conferred a general jurisdiction on

the District Court without reference to the

1884 Act, the maxim

generalia specialibus

non derogant

applied; and it followed that

the special provision in s.5 ofthe 1884 Act,

whose continued'validity had been recog-

nised by the amendment effected by s.28 of

the 1941 Act, had not been impliedly re-

pealed by the general provision in s.2 of the

1951 Act; and s.2 ofthe 1951 Act could not

therefore be regarded as an optional jurisdic-

tion which could be exercised by a court of

summary jurisdiction over young persons

who came within the terms of the 1884 Act

and accordingly the sentences imposed in

the instant case were ultra vires. Dicta in

Seward v 'Vera Cruz'

(1884) 10 App Cas 59

approved.

Flynn v Denieffe, Independent Newspapers

pic and Eason & Son Ltd Supreme Court 15

December 1992

GAMING AND LOTTERIES - PRIZE GAME - 'SCOOP' -

BOARD GAME DISTRUBUTED TO ALL HOUSEHOLDS

IN STATE ON BEHALF OF NEWSPAPER PROPRIETOR

- UNNECESSARY TO PURCHASE NEWSPAPER TO

OBTAIN PRIZE-WHETHER CONSTITUTING LOTTERY

- Gaming and Lotteries Act 1956, ss. 2, 21

The second defendant, Independent News-

papers, was the proprietor of a number of

newspapers distributed in the State. In 1989,

game cards bearing the name 'Scoop' were

distributed to all households in the State,

accompanied with publicity material an-

nouncing that th is was 'the world's fi rst news-

paper hoard game', that 'Scoop' amounted to

a series of games and that the chances of

winning prizes in the game were increased if

persons played the game in all three newspa-

per titles under the control of Independent

Newspapers. In order to win a prize, partici-

pants were required to move a number of

places on the game board indicated by the

board itself, then answer a general knowl-

edge question and return the card to Inde-

pendent Newspapers together with a claim

form contained in one ofthe relevant news-

papers. The three defendants were prosecuted

for variously promoting, distributing and sell-

ing material relating to a lottery, contrary to

s.21 of the 1956 Act. On case stated to the

High Court Murphy J held ([1989] IR 722)

that 'Scoop' did not constitute a game of skill

and was a lottery within the meaning of s.2 of

the 1956 Act. On appeal to the Supreme

Court, the defendants did not assert that the

game was one of skill, but asserted that it was

not a lottery since it was not a requirement

that participants purchase a newspaper in

order to compete in the game. HELD by the

Supreme Court (O'Flaherty, Egan and Blayney

JJ) dismissing the appeal: (1) the essential

attributes of a lottery were: (a) thedistribution

of prizes; (b) that this was to be done by

means of chance; and (c) there there must be

some actual contribution made by the par-

ticipants, or by a substantial number of the

participants. Dicta in

Reader's Digest Asso-

ciation v Williams

[1976] 3 All ER 737 and

Imperial Tobacco Co Ltd v Attorney General

[1981] AC approved; (2) (Egan and Blayney

JJ; O'Flaherty J dissenting) it was not suffi-

cient for the defendants to argue that for some

participants the game did not constitute a

lottery; and although not every participant

was required to purchase a newspaper in

order to take part in the game, it was suffi-

cient that a substantial number did actually

purchase a newspaper in order for the game

to be classed as a lottery for the purpsoes of

s.2 ofthe 1956 Act.

Beirne v Garda Commissioner Supreme

Court 30 October 1992

GARDA SIOCHANA - TRAINEE - TERMINATION OF

TRAINING ASSIGNMENT - WHETHER FAIR PROCE-

DURES ADOPTED - WHETHER AMENABLE TO JUDI-

CIAL REVIEW-WHETHER DECISION BASEDON CON-

TRACT OR STATUTORY POWERS-Police Forces Amal-

gamation Act 1925, s.14 - Garda Siochana (Admissions

and Appointments) Regulations 1988

The applicant sought judicial review of the

termination of his traineeship in the Garda

College by the respondent. The termination

arose out of a series of incidents on a football

outing from the Garda College. An investiga-

tion of the incidents was made, and other

students alleged in statements that the appli-

cant had assaulted one student, threatened to

assault another and had to be restrained.

None of these statements were made avail-

able to the applicant, but he accepted during

the investigation that he had consumed about

seven pints of Guinness and that arising from

this there had been some incidents with other

students and a misunderstanding, but that a

full investigation would indicate that these

had been exaggerated out of all proportion.

The applicant was informed that a report

would be made to the respondent Commis-

sioner but was not told that a recommenda-

tion was made that his traineeship be termi-

nated. In the High Court, Flood J granted the

relief sought: [1992] ILRM 699. On appeal

HELD by the Supreme Court (Finlay CJ and

Egan J; O'Flaherty J dissenting) affirming the

High Court: (1) judicial review lay to quash

the Commissioner's termination ofthe appli-

cant's traineeship, since such power to termi-

nate arose from the statutory powers con-

tained in the 1988 Regulations, which were

made under s.14 of the 1925 Act; and while

the 1988 Regulations empowered the Com-

missioner to lay down conditions of contract

for trainees, including the power to

terminmate for misconduct, this power could

not be separated from the statutory basis on

which it rested; (2) in the circumstances, the

termination of the applicant's traineeship

had not been in accordance with fair proce-

dures, as he was not given an opfxjrtunity to

deal with the statements from the other stu-

dents nor was he aware that he was liable to

have his trainesship terminated arising from

the investigation of the incidents. Per

O'Flaherty J (dissenting): judicial review did

not lie because the termination arose from a

breach of the contract terms between the

respondent and the applicant, and no ques-

tion of discretion arose.

Curust Financial Services Ltd and Anor v

Loewe-Lack-Werk Otto Loewe GmbH & Co,

KG and Anor High Court, 3 July 1992;

Supreme Court 2 November 1992

INJUNCTION - INTERLOCUTORY - EXCLU-

SIVE MANUFACTURING AND DISTRIBU-

TION AGREEMENT-WHETHER IN BREACH

OF EUROPEAN COMMUNITY LAW -

WHETHER DAMAGES ADEQUATE REM-

EDY - Treaty of Rome, Article 85

Since the 1960s, the plaintiffs (Curust) had an

exclusive manufacturing and distribution

agreement for the State with the first defend-

ant (Loewe), a German company, in relation

to Loewe Rust Primer. Loewe supplied cer-

tain raw materials wich were then mixed by

Curust and put in tins. In 1986, because of

changes in the manufacturing process, a new

agreement provided that Loewe would sup-

ply the finished product in its entirety, that

this would then be tinned and distribued by

Curust. It was envisaged that Curust would

recommence manufacturing at some stage

when it complied with the new process re-

quirements. In July 1990, a price agreement

was entered into by the parties, but in Octo-

ber 1990 disputes arose and Loewe pur-

ported to terminate all agreements between

the parties. However, Loewe continued to

supply raw materials to the plaintiffs until

December 1991, the date on which the price

agreement was to have terminated. In early

1992, the plaintiffs recommenced manufac-

ture of Loewe Rust Primer through another

company, without permission from Loewe,

in breach of the 1986 agreement. In June

1992, the plaintiffs discovered that the sec-

ond defendant had begun selling the Loewe

Rust Primer under the label Durabond. It

commenced proceedings seeking to restrain

the defendants from acting in breach of the

1986 agreement, and applied for interlocu-

tory injunctions. In the High Court HELD by

Barron J granting the relief sought: (1) since

the defendants had raised the issue of the

validity of the 1986 agreement having regard

to Article 85 of the Treaty of Rome, the

plaintiffs were required to establish a fair

question on this, and they had done so, albeit

on the basis of a bare averment that the trade

in rust primer was slight in intra-Community

terms; (2) damages would not be an adequate

remedy for the plaintiffs and they were thus

entitled to an interlocutory injunction to pre-

serve the status quo ante. On appeal HELD

by the Supreme Court (Finlay CJ, O'Flaherty

and Egan JJ) allowing the appeal: (1) the trial