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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
an
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
v