The Gazette 1988

GAZETTE

OCTOBER 1988

Recent

Ir ish

Cases

Ed i t ed by

Ga ry By r ne

INJUNCTION

In an application for an injunction

against the State, in consideration where

the balance of convenience Ilea, tha fact

that tha injunction may postpone trial for

criminal offences is a factor to be

considered but Is not a bar to tha

granting of an injunction.

Fishing licences issued by the State to

allow long-line fishing in territorial waters

contain conditions requiring a certain

percentage of the crew of each fishing

vessel to be Irish nationals. These conditions

have caused difficulty. In an earlier case of

Pesca Valentia -v- The Minister for Fisheries,

the High Court found that the evidence

established o v e r w h e l m i n g ly that Irish

fishermen are not prepared to crew on

vessels wh i ch are more than a day or t w o

out of port.

In the

Pesca Valentia case,

the issues were

referred to the European Court of Justice for

a preliminary opinion, and the decision of

that Court is awaited.

The instant case involved similar issues.

The Plaintiff company sought an injunction

to restrain the State from enforcing the

conditions of the licence, thus allowing it to

employ Spanish fishermen w h o were

prepared to crew the vessels.

If the injunction was not granted, the

Plaintiff w o u ld face serious financial

consequences, perhaps ruin. If the Plaintiff

had to cease fishing because of inability to

get crews in accordance w i th the conditions

of the licence, and ultimately succeeded in

the action, it would not be possible to

recover damages, as a suit for damages

wo u ld not lie against the Minister acting

w i t h in his power. If the Plaintiff continued

to fish in breach of the condition, it wo u ld

be liable on conviction to substantial fines

and forfeiture.

As far as the Defendants were concerned,

the balance of the convenience had t w o

aspects - upholding the criminal law until

the European Court of Justice holds to the

contrary, and ensuring that the economic

benefits from the Hake quota allotted to

Ireland are directed into the Irish economy.

H e l d following the judgement in the

Pesca

Valentia

case, that the current

approach is to treat the postponement of

trial for criminal offences due to breach of

the condition in the licence, as a factor to

be considered in weighing the balance of

convenience, and not as a bar to the granting

of an injunction. In relation to the Irish

economy, if the injunction were not granted,

the Plaintiff would probably have to cease

operating either because of heavy fines or

the inability to get crew, in wh i ch event the

benefit to the economy from the landing of

catches in Ireland would be lost.

Weighing all the factors, the balance of

convenience lies w i th the Plaintiff, at least

until the European Court of Justice have

handed d o wn their judgement in the

reference. The Court granted the injunction

restraining the Minister from enforcing the

condition in the licence until further order,

w i th liberty to apply w h en the judgement of

the European Court of Justice had been

obtained. The Court noted that its injunction

would not make the act legal if it is ultimately

held that the Minister was acting within his

powers. It merely postponed any en-

forcement of the law.

Beara Fisheries and Shipping Ltd -v- The

Minister

for the Marine, Ireland and the

Attorney General. High Court (per Carroll J.)

31 July 1987 - 119881 ILRM 221.

KARL HAYES

WARDSHIP

Application to make a Parson a Ward of

Court. Whathar necessary such parson

should have or ba entitled to property

requiring management and/or pro-

tection.

The Respondent female was mentally

retarded since birth. As a day pupil, she

attended a school for mentally retarded

children maintained by the Midland Health

Board (the Board) until she was 18 years of

age. Thereafter, still residing at home, she

attended an adult training centre maintained

by the Board which was associated w i th the

school. Prior to March 1987 persons

e m p l o y ed by t he B o a r d, w h o w e re

concerned w i th the care and training of the

Respondent, came to the conclusion, for

reasons stated by t h em in affidavits before

the Court, that the Respondent's welfare

was at risk of serious harm should she

continue to reside at home. On 10 March

1987 she was admitted to a residential

institution suitable for mentally retarded

persons maintained by the Board. In August

1987 the Respondent's parents applied to

the High Court for an Order of

Habeas

Corpus

naming as Respondents the Board

and certain other persons. An Order was

made pursuant to article 40(4)(2) of the

Constitution directing the Respondents to

produce the body of the Respondent before

the Court and to certify in writing the

grounds of her detention.

On the hearing of that return before the

President of the High Court the Board sought

an adjournment to permit it to lodge a

Petition in Wardship and that was granted.

The

Habeas

Corpus

a p p l i c a t i on w as

adjourned.

Following legal submissions on the

hearing of the Petition, the President

concluded as a matter of law that it was a

condition precedent to the exercise by him

of his jurisdiction to bring persons of

unsound mind into his wardship that they

be entitled to property w h i ch required

management and/or protection. He also

concluded that the Respondent was entitled

to have her welfare protected by the Courts

if that was proved to be necessary and for

that purpose he directed that she should be

represented by a Guardian

ad litem

w h o

should be heard on the adjourned hearing

or the application under article 4 0 ( 4 X 2) of

the Constitution.

In the hearing before him the President

made no determination as to whether the

e v i d e n ce

a d d u c ed

e s t a b l i s h ed

unsoundness of mind in the Respondent

within the meaning of the phrase in the

lunacy code. Neither did he determine that

the evidence established a necessity for the

protection of the person of the Respondent.

These points were not in issue in the

subsequent appeal to the Supreme Court.

The Board appealed to the Supreme Court

against the President's decision that as a

matter of law it was a condition precedent

to the exercise by him of his jurisdiction to

bring persons of unsound mind into his

wardship that they be entitled to property

w h i c h r e q u i r ed m a n a g e m e nt

a n d / or

protection.

In the Supreme Court the legal argument

centred on the effect of the Lunacy

Regulations (Ireland) Act 1871 and section

9 of the Courts (Supplemental Provisions)

Act 1961 on the jurisdiction of the High

Court in lunacy matters.

H e l d by the Chief Justice delivering the

judgement of the Supreme Court allowing

the appeal, that there is vested in the High

Court jurisdiction where necessary and

appropriate to take into its wardship a person

of unsound mind w h o se person requires

protection and management but w h o is not

entitled to any property w h i ch requires

protection or management. In substitution

for the order made in the High Court, the

Supreme Court made an Order permitting

the Petition filed in the case to be deemed

as an application for an enquiry as to the

unsoundness of mind of the Respondent and

as an application for admission into wardship

of the Court.

Acknowledging that the point did not arise

for decision in the case before the Court, the

Chief Justice expressed a view that on a

hearing of an application pursuant to article

49(4)(2) of the Constitution the High Court

must reach a single decision, namely,

wh e t h er the detention of the person

concerned is or is not in accordance w i th

law. If it is, then the application must be

refused. If it is not, the person must be

discharged from the custody in which he is.

This procedure did not appear to the Chief

Justice to admit of any supervision or

monitoring of the interests of the person

concerned, even allowing for a condition of

mental retardation or other want of capacity.

In the Matter of an Application

by the

Midland Health Board Supreme Court (per

Finley C.J. nam.diss)

11988) ILRM 251.

DENIS GREENE

ADOPTION

Whether coneent of mother to the

plecement by the Adoption Society of

her illegltimete child wee free end fully

informed — principles eppliceble in

reletlon to sppesl f r om High Court to

Supreme Court.

The adoption society's social worker met the

mother w h o stated she was expecting a

child and wanted to have the child placed

for adoption. After the child was born the