390 / 406
G A Z E T T E
JULY/AUGUST
1985
(continuing then to set out verbatim sub
paragraphs (a) to (e) of Sub Section 3 of
Section 16.")
It was contended by the Defendants
that the authorisation of Mr. McClean
was defective in that it did not indicate
"the matters" in respect of which the
authorised officer might act under the
Section.
The Defendants were convicted in the
District Court of an offence of failing to
comply with the requirement of an
authorised officer and each was fined £50.
On appeal to the Circuit Court the Circuit
Court Judge stated a case to the Supreme
Court to determine the following
question:—
"Is the authorisation which is
Document No. 5 attached to this case
stated a valid and effective authorisa-
tion within the meaning of Section 16
of the Consumer Information Act
1978?"
The S u p r eme Co u rt ( G r i f f in
H e d e r m a n a nd M c C a r ty
J . J . )
unanimously agreed that the question
should be answered "No".
Per Hederman J. "the authorisation of
Mr. McClean merely recited all the
powers which could be given or which it
was possible to give to any authorised
officer pursuant to the provision of Sub
Section 3 . . . it is not sufficient to merely
recite the powers given to an authorised
officer. The authorisation must also
indicate the matters in respect of which he
may then act.
Per McCarthy J. — the authorisation
must specify "the matters in respect of
which he may act under this Section. In
my view matters in this context means the
particular investigation or investiga-
tions."
Per Griffin J. — Section 16(2) "was in
my view designed or intended to ensure
that in the authorisation there should be
specified the events, topics or subject of
contention or complaint (to use neutral
words) which the authorised officer was
required to investigate for the purpose of
ascertaining whether there was or was not
compliance with the provisions of the Act
on the part of the person or firm being
investigated.
Director of Consumer Affairs
-v-
Joe
Walsh Tours Limited and Samuel
Lombard - Supreme Court, 20 July 1984-
unreported.
John Buckley
CONSTITUTIONAL LAW
High Court jurisdiction — family law.
The Plaintiff, the wife of the
Defendant, issued a notice pursuant to
Order 60 of the Rules of the Superior
Courts, 1962 on the Attorney General
requiring the determination by the court
of issues as to the validity under the
Constitution of a number of statutory
provision referred to in the Schedule to
that Notice. The Schedule was as follows:
1. Section 5 of the Guardianship of
Infants Act, 1964 as amended by
Section 15 of the Courts Act, 1981.
2. Section 23 of the Family Law (Main-
tenance of Spouses and Children)
Act, 1976 as amended by Section 12
of the Courts Act, 1981.
3. Sections 1 and 2 of the Family Law
(Protection of Spouses and Child-
ren) Act, 1981.
The Notice was not served on the
Defendant, but the Attorney General
appeared by Counsel to argue for the
constitutionality of the statutory
provisions.
The Plaintiff in her Special Summons
made a number of claims against her
husband: sole custody of their three
infant children and contribution for their
maintenance and education (Section 11,
Guardianship of Infants Act, 1964);
payments of maintenance sums for
herself and the three children (Section 5
and 7, Family Law (Maintenance of
Spouses and Children) Act, 1976);
exclusion of the Defendant from the
Family Home (Section 2(1)), Family Law
(Protection of Spouses and Children)
Act, 1981; exclusively, or alternatively a
share of, ownership of the family home
(Section 12, Married Women's Status
Act, 1957); protecting the family home
from the Defendant's conduct (Section 5,
Family Home Protection Act, 1976) and
an injunction restraining the Defendant
from use of the home as a residence and
from access to herself and the children.
When the Defendant did not appear to
answer the claim, the Plaintiff issued the
Notice pursuant to Order 60. It was
argued on behalf of the Plaintiff that the
various Sections were unconstitutional
because they purported to deprive the
High Court of jurisdiction to hear the
claims in the originating Summons. She
also submitted arguments to show that
the Sections were not unconstitutional
and did not deprive the High Court of
such jurisdiction. This caused difficulty
to the Attorney General in the
adversorial system of adjudication.
As to the Plaintiffs application for an
order under Section 11 of the 1964 Act, it
was clear that under the provisions of that
Act both before and since the amendment
by the Courts Act, 1981 such application
could be made to the Circuit Court. Since
the 1981 Act, the District Court now had
a limited jurisdiction under the Section
which it did not have under the 1964 Act.
HELD:— nothing in Section 5 of the
1964 statute as amended in 1981
expressed a withdrawal or withholding
from the High Court of jurisdiction to
entertain applications or to make orders
under Part II of of that Act. The
argument of the Plaintiff that Section 5 as
amended of the Guardianship of Infants
xix
Act restricted or removed the jurisdiction
of the High Court to hear claims under
Part II of that Act was unsustainable, and
there was no ground for declaring Section
5 to be invalid having regard to the
provisions of the Constitution.
With regard to issue No. 2 in the
Schedule, as expressed in Section 23 of
the Family Law (Maintenance of Spouses
and Children) Act, 1976 in its amended
form and the entire 1976 Act there was
not any wording in the Section or the Act
which might be interpreted as restricting
or removing the jurisdiction of the High
Court in relation to such matters. The
statute taken as a whole was an Act
conferring on the courts of first instance
of limited local jurisdiction a jurisdiction
in relation to such matters and as such
there was no ground for declaring the new
Section 23 of the 1976 Act as amended in
the 1981 Act to be invalid having regard
to the Constitution.
Neither in Section 1 or 2 nor in the
entire of the Family Law (Protection of
Spouses and Children) Act, 1981 was
there any wording which might be
construed or interpreted as restricting or
removing any jurisdiction of the High
Court in relation to the matters the
subject of the statute.
The statute taken as a whole was an Act
conferring on the courts of first instance
and limited local jurisdiction a jurisdic-
tion which they did not, and otherwise
than by statute could not, have or have
had in relation to such matters. Such
being the nature, purpose and extent of
the statute there was no ground for
declaring the new Act of 1981 nor in
particular Section 1 and 2 of that statute,
the Family Law (Protection of Spouses
and Children) Act, 1981, to be invalid
having regard to the provisions of the
Constitution.
The burden of the Plaintiffs complaint
was that it was not within the competence
of the Oireachtas under the Constitution
to withhold or withdraw from the
jurisdiction of the High Court any issue
which was justiciable, nor to restrict the
jurisdiction of the High Court nor to
deprive it of jurisdiction by statute.
The provision in the Constitution at
Article 34.3.1 that the High Court be
invested with full original jurisdiction in
and power to determine all matters and
questions whether of law or fact, civil or
criminal, ensures that no wrong need go
without a remedy. This appeared to be
the principle upon which the judgment of
the Supreme Court in
R.D. Cox
-v-
Owners of the m.v. Fritz Rabe
(unreported
Supreme Court, 1st August, 1974) was
founded.
He would reject the contentions
advanced on behalf of the Attorney
General as wrong in law that the
Oireachtas may, under Article 36 of the
Constitution, confer upon and withdraw
from the High Court or confer to the
exclusion of the High Court upon other