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GAZETTE
JULY/AUGUST
the same date to allow a designated
Medical Practitioner to take a specimen of
his blood, or, at his option, to provide a
specimen of his urine, contrary to Section
13(3) of the same Act. Both Summonses
stated that the date of Hearing would be
25 September 1979, but were not served
until 10 October 1979. The Summonses as
served had been altered by the insertion
in both, of the words "Redated 10/10/79"
in place of the previous date of issue "13
July 1979", and the date for the Hearing
"25 September 1979" was crossed out and
was replaced by "27 November 1979".
Both alterations had been initialled by the
Peace Commissioner who had issued the
Summonses.
When the Summonses thus altered
came on for Hearing in the District Court
on 27 November 1979 both Parties were
represented and the Summonses were
adjourned by Consent. Following a
number of subsequent adjournments the
Hearing eventually took place and was
again adjourned to a later date at the end of
the prosecution's evidence for legal
argument. The only legal submission
made on behalf of the Defendant was that
the Summonses as served were invalid and
that as a result each prosecution was
rendered void.
Held by the Supreme Court on Appeal
from the decision of the High Court on a
consultative case stated per Gannon J.
[19811 ILRM 465 that the procedure
adopted in regard to the Summonses even
if it could be said to be defective, could not
be relied on as a grounds of Defence. The
amended Summonses were clearly served
within six months of the making of the
complaint, and even if they had breached a
procedural requirement of the District
Court Rules, that breach would have been
cured when the Defendant appeared in
the District Court on the day specified in
the Summonses for the Hearing.
The Court held further that a
Summons is only a written command
issued to a Defendant for the purpose of
getting him to attend Court on a specified
date to answer a specified complaint. If he
responds to that command by appearing
in Court on the specified date and by
answering the Summons when it is called
in Court, he cannot be heard to say that he
was not properly summoned if the
complaint set out in the Summons is a
valid one.
This Case was distinguished from the
decision of the Supreme Court in
D.P.P.
v. Gill
(20 December 1979 unreported). In
that case valid Summonses had been
served on the Defendant. On the date
specified for Hearing there was an
appearance by the Defendant's Solicitor
but no appearance on behalf of the D.P.P.
In the absence of a District Court Clerk as
a result of Industrial Action the District
Justice held that he could make no Order
on the Defendant's application to have the
Summonses struck out. The Summonses
subsequently lapsed for want of an
alternative date for the Hearing thereof,
and the fresh Summonses issued by the
D.P.P. were held to be good.
Director of Public Prosecutions v. Stuart
Clein.
Supreme Court (per Henchy J. Nem.
Diss.) 26 October 1982 — unreported.
Padraic Dillon
NATURAL JUSTICE —
Purported dismissal of Trade Union
Official by Executive invalid as
members of executive affected by dis-
missal and therefore not in accord-
ance with Rules of Natural Justice.
On the merger of two unions in 1966,
the Defendant was made assistant joint
General Secretary (Financial) of the First
Defendant. Provision was also made for
the election, from the general member-
ship, of three other full time positions.
The Executive Council, made up of a
General President, a Vice President and
Elected Members together with full-time
officials who were not entitled to vote, had
over-all control of union affairs and power
to remove all union officials. The ordinary
administrative affairs of the union were
delegated to a resident executive which
met more frequently and was made up of
the same personnel. The rules of the union
also contained detailed provisions
regarding election of officers and full-time
officials and Rule 22 laid down procedure
for discipline and subsequent dismissal of
officers of the Executive Council or
resident executive for neglect of duty or
bringing the Union into disrepute.
The present action followed two
previous unsuccessful attempts to remove
the Defendant by the General President
and some members of the Resident
Executive and Executive Council. In the
High Court in the original action of which
this was an Appeal, it was held that the
Defantant's dismissal had been unfair and
contrary to the principals of natural
justice.
In 1975 the Defandant and Mr. L.
O'Neill were elected Joint General Secre-
taries of the Union. The Defendant had
special responsibility for financial affairs.
On re-election in 1979 the Defendant's
position as General Secretary (Financial)
became permanent as provided in the
Rules. Mr. O'Neill failed to be re-elected,
his Assistant Secretary, Mr. Moneley
being elected in his place. Mr. Fullerton
was re-elected General President. The
Rules of the Union prevented Mr. O'Neill
from taking up the post of Assistant
General Secretary, vacated by the election
of Mr. Moneley because of his age. In
January 1980 the Executive Council
appointed Mr.O'Neill "Acting Assistant
General Secretary" an appointment
opposed at that time, on technical grounds
by the Defendant.
Subsequently the Defendant as
General Secretary (Financial) failed to
pay Mr. O'Neill the salary appropriate to
the post of Assistant General Secretary as
a result of which, a meeting of the
Executive Council fined him and directed
him to make the payment. The Defendant
did not follow this direction and another
meeting of the General Executive, not
attended by the Defendant, suspended
him and made twelve charges against him.
The Defendant made written reply to the
charges when notified of them and
attended a subsequent meeting to discuss
his possible dismissal. At this meeting he
was allowed to make further explanation
but was obliged to withdraw having done
so and before a vote was taken on his
dismissal. Despite the fact that Mr.
O'Neill and Mr. Moneley were persons
directly affected and responsible for some
of the twelve charges made against the
Defendant, they were allowed to remain.
This meeting was resumed at a later date
when the Defendant was again forced to
withdraw and again Mr. O'Neill and Mr.
Moneley remained for discussion prior to
voting. On a vote, seven of the twelve
charges were proven and in a secret ballot,
a majority voted for the Defendant's
dismissal, the subject matter of these pro-
ceedings.
HELD:
Having regard to the terms of his
appointment by the rules of the union the
Defendant was clearly an officer and as the
Executive Council were exercising a quasi-
judicial function they must therefore
observe the Rules of natural justice, be
impartial and not affected by their own
decisions.
Clearly, these criteria were not met and
this was demonstrated by reference to four
of the twelve charges which led to the
dismissal.
1. Failure to pay Mr. O'Neill's salary and
expenses as Assistant General
Secretary. Mr. O'Neill was not
requested to leave the meeting at the
same time as the Defendant and there-
fore, his contribution in the absence of
the Defendant allowed him to unfairly
influence the members of the Council.
2. Failure to pay larger affiliation fees to
the Irish Congress of Trade Unions
than Union membership warranted.
Such larger payment would have
entitled Mr. Fullerton, the General
President and Chairman of the
meeting to an ICTU Executive
Council seat and was clearly motivated
by this desire. Notwithstanding the
Defendant's expulsion from the
meeting, Mr. Fullerton should not
have acted Prosecutor in a matter
which affected his own personal
position.
3. Failure to pay Mr. P. O'Neill, another
member of the Executive Council,
expenses, due to the fact that he had
failed to discharge arrears due to the
Union. Again Mr. P. O'Neill remained
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