The Gazette 1976

GAZETTE

AUGUST 197«

Re Haughey—{

1971) I.R. 236

—said: "Article 40(3) of the Con-

stitution is a guarantee to the citizen

of basic procedures of fairness. The

Constitution guarantees such fair-

ness, and it is the duty of the Court

to underline that the words of this

Article are not political shibboleths,

but provide a positive protection for

the citizen and his good name".

Accordingly Butler J. held in this

case that the decision to discharge

the plaintiff from the Army consti-

tuted a denial of Natural and Con-

situtional Justice. This defect of

procedure is fundamental, and the

discharge must therefore be quashed.

The Conditional Order of Certiorari

will be made absolute.

The Minister for Defence lodged

an appeal to the Supreme Court,

which was dismissed.

Henchy J. said that, under S. 73

of the Defence Act 1954, the dis-

charge of a man from the per-

manent defence forces is allowed

"for prescribed reasons". Para-

graph 58 of the Defence Forces

Regulations sets out no less than

24 reasons as "prescribed reasons"

under the Act. The reason chosen

in this case, instead of being a

tangible one, was the nebulous one

applying to a man whose dis-

charge is clearly desirable in the in-

terests of the service, and in whose

case no other reason for discharge

is applicable'. In order to apply

this reason it was necessary for the

Commanding Officer to prove

beyond doubt that the discharge

should be clearly desirable in the

interests of the service, and that

none of the 23 other reasons ap-

plied. To discharge the plaintiff for

this reason was condemnatory, in the

same way as if he had been dis-

charged for misconduct or ineffic-

iency, and rendered him ineligible

for enlistment ever again.,

As the plaintiff has enlisted for 3

years in the Army and had served

for almost 2 years before being dis-

charged, he had a statutory con-

tract, and was the holder of an

office, in the same way as a recruit

in the Gardai. While the Common

Law concept of Natural Justice is

usually taken to encompass the two

principles of

"Nemo judex in sua

causa"

and

"Audi Alteram Partem"

the requirements of Constitutional

Justice undoubtedly cover a wider

field—such as that Justice was not

administered in public, or that the

decision was given by an unconsti-

tutional tribunal. The plaintiff rests

his case here on the Common Law

principle that each party is entitled

to be heard. This is well founded,

because the plaintiff was never given

any reasons for his discharge until

after he had actually been dis-

charged; and the facts or findings

to support this were never divulged

to him. As the discharge in this case

was for a discreditable reason, the

fundamentals of justice require that

the man shall be given the oppor-

tunity of meeting the case against

him. In this case it would be an

affront to justice if the law held that

a decision with drastic consequences

for the man involved could be made

behind his back,. The law applicable

here is well-established, and the

Army Authorities were under a clear

duty to give him due notice in ad-

vance of his discharge, of the statu-

tory reasons for it, and of the essen-

tial facts and findings supporting

that reason. The Army Authorities

have lamentably failed to observe

this procedure in this case, and the

appeal is consequently dismissed.

Per Henchy J.: If a plaintiff seeks

to have condemned in the Supreme

Court as invalid a decision on the

ground that it is incompatible with

the Constitution, it is necessary for

him to prove the following :

(1) The application in the cir-

cumstances of the case of a specified

Constitutional right, either express

or implied;

(2) The decision appealed from

has infringed that right; and

(3) That the person appealing

stands aggrieved by reason of that

infringement.

State (Gleeson) v. Minister for Defence

and Attorney General — Supreme Court

— (Henchy J., Griffin J,. and Kenny J.)

— Separate judgments by each Judge —

unreported — 1st July, 1976.

PRACTICE

The mother of an illegitimate child

may only institute proceedings in

the High Court claiming an affilia-

tion order by special leave of that

Court.

It was only in 1930 that the

Illegitimate Children (Affiliation

Orders) Act was passed, which

gave leave to the mother of such

child to apply to the District Court

for an affiliation order against the

putative father, but it is essential

that a sworn information by the

mother identifying the father be

filed, and the Justice must be satis-

fied of its authenticity before issuing

a summons. The Courts Act 1971

amended the law by providing that

all affiliation claims for a sum

exceeding £15 per week for the

maintenance and education of the

child were henceforth to be heard

exclusively in the High Court. If

the High Court had seisin of a case

the District Court could not inter-

vene. At the moment, there is no

procedure in the High Court for

receiving a sworn affirmation by the

mother identifying the father and

the Superior Courts Rules Com-

mittee have as yet not issued any

amending rules relating thereto. S.

19 of the Courts Act, 1971, had

provided that claims for weekly

sums of over £15 should be brought

in the High Court, which accord-

ingly has an inherent jurisdiction to

operate S. 19, subject to adopting

as nearly as possible the District

Court procedure. Accordingly a pre-

liminary affidavit should be sworn

by the mother identifying the father,

and the High Court should not

grant leave to issue proceedings

until this was done. As this pro-

cedure was not followed in this

case, the proceedings are struck out,

but may be started afresh.

Re Courts Act 1971 and S.E.O'B. —

Supreme Court (Henchy, Griffin and

Kenny JJ.) per Henchy J. — unreported

— 29th July, 1976.