322 / 346
GAZETTE
JULY/AUGUST
198
On the first question the Court
accepted that under the provisions of
Section 11 of the Interpretation Act 1937
the day upon which the Minister gave his
decisions was to be included in the
computation of the five week period and
accordingly the last day of the period was
23 September 1979. The Defendants
decision to refuse permission was not
made until the following day 24
September 1979. In relation to the second
question, 23 September 1979 fell on a
Sunday and the Court held that express
provision by statute or statutory
instrument was needed if the time limited
by statute for doing any ministerial or
administrative act were to be extended
because the last day for doing the Act
happened to fall on a Sunday. There was
no such express provision under the
legislation before the court and
accordingly the court held that as no
notice had been given up to 23 September
1979 of a decision to refuse permission, a
decision by the Defendant to grant the
permission should be regarded as haying
been given on the last day of the five week
period notwithstanding that that day
happened to be on a Sunday.
Having regard to the court's conclusion
on the second question it was not strictly
necessary to consider the third question
but the court expressed its view that it
would not follow the decision of O'Keeffe
P. in the case of
The State (Murphy) v.
Dublin County Council
[1970] I.R. 253
having regard to the critical views which
had been expressed in the cases of
Thomas
Bishop Limited v. Helmville Limited [
1972]
1 All E.R. 365 and
Maltglade Limited v.
St. Albans Rural District Council
[1972] 3
All E.R. 129 of the case of
Moody v. Gold-
stone R.D.C.
[1966] 1 W.L.R. 1085 on
which some reliance had been placed by
O'Keeffe P. in
The State (Murphy) v.
Dublin County Council
when he stated at
page 258 "it seems to me that one must
consider in each case what the legislature
intended. In the case of the Act of 1963
the legislature obviously intended that the
planning authority should arrive at a
decision without undue delay and should
give notice of the decision to the applicant.
The planning authority was to be required
to do its part within the appropriate period
by dispatching notice of its decision but
the time of receipt of the notice seems not
to be of importance. I think that the notice
was given when it was sent by registered
post in the manner prescribed by the Act
. . . There is no reference to 'service' of the
notice in sub-section 4 of Section 26 of
the Act of 1963 to bring into operation the
second limb of Section 18 of the
Interpretation Act 1937. For this reason I
think that the prosecutor's submission is
incorrect and that the cause shown should
be allowed". The Court in taking a
different view expressed the view that the
provisions of the Act indicated an
intention that Planning applications were
to be dealt with as matters of some
urgency and that there was to be an obliga-
tion on Planning Authorities to
communicate their decisions to applicants
within a strict limit of time and that it was
intended that no similar decision should
reach applicants either personally or at
their premises within the period
prescribed by the Act as "the appropriate
period". The court noted that the
utilisation of any of the other methods of
giving notice under the Act, other than the
use of registered post, involved either
personal delivery of the notice to the
applicant or delivery of it at the address
where he normally resides, or at an
address he had given for purposes of
service, or by delivering it physically at the
land to which the application relates or
affixing it conspicuously at or near the said
land. Under these provisions time
continues to run against the Planning
Authority until the notice has been
physically delivered to or brought to the
notice of the applicant or left at some
premises where it may reasonably be
regarded as having come into his
possession and control. The court
expressed the view that if an applicant
could show that the notice given by the
Planning Authority served by registered
post did not reach him within "the
appropriate period" the Planning
Authority would have to suffer the conse-
quences of resorting to this method of
service rather than the more conclusive
method of personal service or service at
the premises to which the application
relates or where the applicant resides or at
the address for service which he has given.
The court indicated that it inclined to the
view that the registered letter should be
regarded as having been "posted" when it
was handed into the post office, properly
stamped and accepted by the person in
charge of the post office even though the
time was . later than the time given as the
latest date for posting for that particular
day. The court held however that the
notice was not given for the purposes of'
the Act until 25 September 1979 at the
earliest, a date clearly outside the
prescribed five week period.
On the fourth question the court
followed the decision of Barrington J. in
the case of
The State (Pine Valley
Development Limited) v. Dublin County
Council
(27 May 1981 unreported).
Having held that a decision by the
Defendant to grant the permission was
given on the last day of the appropriate
period and the Defendant having
subsequently made an order refusing
permission there would exist two
conflicting decisions of the same Planning
Authority and the Plaintiff had correctly
sought relief in the form of a Declaratory
Order as to the legal position and it would
have been inappropriate for him to seek
relief by way of Mandamus against the
authority to compel it to make or give a
decision in favour of an applicant when it
was already deemed to have donfc so by act
and operation of law.
Myles Freeney v. Bray Urban District
Council.
The High Court, (per O'Hanlon
J.) 16 July 1981 — [1982] ILRM 29.
John F. Buckley
PRACTICE
Order 22 (Rules 4(1) and 10(1) of the
Rules of the Superior Courts — Court
Order required to give infant Plaintiff
entitlement to money lodged In Court
— payment induced by fraud —
whether Courts discretion to be exer-
cised in favour of defrauded payer.
The Plaintiffwas 19 years of age when
he sustained a serious iqjury while
working in June 1977. Suing by his father
and next friend he instituted proceedings
in the High Court against thefirst named
Defendants ("Ryans"). They had
arranged Employers Liability Insurance
at Lloyds who were represented by the
second named Defendants in the present
proceedings ("The Underwriters").
Solicitors on the instructions of the
Underwriters lodged in Court with their
Defence the sum of £39,053 without
admission of liability. Under Order 22,
R.4. of the Rules of the Superior Courts a
Plaintiff may within seven days of receipt
of the Notice of Payment into Court serve
a prescribed Notice of Acceptance. This
was not done. The Court presumed that
this was because 0.22, R. 10 provides that
no compromise or payment or acceptance
of money paid into Colirt in the case of an
infant Plaintiff can be given effect to
without an Order ofthe Court. Meanwhile
the Underwriters discovered that the
Employers Liability Policy of insurance
had been entered into by them as a result
of fraudulent mis-statements made by
Ryans as to the amount of wages and
salaries paid or payable by them to their
employees. The underwriters brought
proceedings in the High Court and
successfully obtained a declaration of
nullity of the insurance contract. The
Order which was made on 28 December
1978 was not appealed and the matter
became
res judicata
binding on the
Plaintiff and Ryans. The money paid into
Court by the Underwriters was, therefore,
paid by them under a mistaken
assumption of liability which assumption
was induced by Ryans' fraudulent mis-
representations.
On 2 January 1979 a Notice of Motion
was issued on behalf of the Plaintiff (still
an infant) seeking an Order extending the
time for accepting the money lodged in
Court. The Underwriters, on 11 January
1979, caused a Notice of Motion to be
served seeking payment out of the money
to them. These Motions were heard
together on 31 January 1980. The
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