360 / 406
GAZETTE
SEPTEMBER 1985
other Court of Justice decisions, he is himself doing that
which he claims allowing an appeal would be, i.e.
''acting contrary to both the letter and the
spirit
of
Article 177."
With respect to Mr. Justice Walsh's statement (on
page three of his judgement) that there is no appeal
against a judge's decision to state a case, I would query
the correctness of this, especially since the
Lisney
case.
The relevant part of s. 52(1) of the Courts (Supplemental
Provisions) Act 1961 is as follows:-
'. . . and may, (without request) refer any question of
law arising in such proceedings to the High Court for
determination'. There is no implied or express prohib-
ition on an appeal against such a decision by the judge.
It may also be noted that the remedy of
mandamus
is
available to an applicant in the event of a refusal by a
judge to state a case: (Delaney, 'The Administration of
Justice in Ireland').
Connected to this problem is the judge's reference to
Article 34 of the Constitution on page five. The
question of what is a decision within the meaning of
Article 34.4.3 has been approached tangentially in a
number of previous cases:
The People (A-G.)
-v-
Fennell,
(No. 2)
w
- on the question of the accused's sanity, and in
the case of
re. McGovern
" - on an administrative dir-
ection to an officer of the court. Mr. Justice Walsh here
seems to say that the definition of a 'decision' is:
'. . . an order having any legal effect upon the parties
to the litigation.'
Is legal effect now to be the sole constitutive element?
Doubt is cast on this by s. 21 of the Eleventh Interim
Report of the Committee on Court Practice and Pro-
cedure, 1976:
"The extent of the jurisdiction of the Supreme Court
has been considered in the judgements of that Court on
The State (Browne)
-v-
Feran
12
and
Vella
-v-
Morelli".
In the latter case it was held that by virtue of the pro-
visions of Article 34, all decisions of the High Court,
including what in former times were considered to be
non-appealable discretionary orders, were subject to an
appeal to the Supreme Court."
I agree with the Committee in stating that 'decision',
within Article 34 does not merely have the meaning
of 'having legal effect', as under Mr. Justice Walsh's
strictly limited definition. The combination therefore of
Article 34, the European Communities Act - i.e. 'neces-
sitated' - and the Treaty itself, allows the limited form
of appeal established by the Court of Justice, subject to
the power of the Oireachtas to implement legislation
prohibiting such appeals.
•
Footnotes:
1. [1963] E.C.R. 1.
2. [1974] Ch. 401.
3. [1972] C.M.L.R. 401.
4. [1962] C.M.L.R. 1.
5. [1971] C.M.L.R. 403.
6. See footnote 3.
7. [1981] LL.R.M. 289.
8. [1982] LL.R.M. 390.
9. [1973] E.C.R. 1175.
10. [1940] I.R. 453.
11. [1971] I.R. 149.
12. [1967] I.R. 147.
13.
[19681LR.il.
APPOINTMENT WITH
INCORPORATED LAW SOCIETY
OF IRELAND
Full-time Tutor in Society's Law School. Candid-
ates must be solicitors of not less than 2 years
standing and the appointment shall be for 2 years.
Applications, with
C.N.
should reach the under-
signed byFriday, 31st January, 1986.
Professor Richard Woulfe,
Incorporated Law Society of Ireland,
Blackhall Place,
Dublin 7.
HANDWRITING & SUSPECT
DOCUMENT ANALYSIS
BY Scotland Yard trained
C.I.D. / Scene of Crime Officer
Confidentiality
assured.
T. T. W. ALLEN
"Seaview",
Ballyguile, Co. Wicklow
(0404) 9266 (anytime)
SERVICE OFFICE AVAILABLE
DUN LAOGHAIRE
A firm of accountants have a fully furnished
office available for letting for up to two years.
This is ideally suited to a solicitor commencing in
practice on his/her own. Has full administrative
support, e.g. private telephone line, telephonist/
receptionist and typist if required.
Enquiries telephone: 850638
348