405 / 406
GAZETTE
JULY/AUGUST 1985
be void and be incapable of being registered
under those Acts.
(2) For the purposes of Sub-Section (1) and
of any enactment repealed by this Act, a
Floating Charge on slock created by a
body corporate shall not be and shall be
deemed never to have been a Bill of Sale."
It was conceded that the goods supplied by
Charles Dougherty & Co. Limited constituted
" S t o c k" within the meaning of the 1978 Act.
In the High Court the Plaintiff Receiver
claimed that the reservation of title Clause
failed on a number of grounds with the result
that he had an entitlement to all the product
supplied as part of the assets of the Company
in Receivership. The Receiver's claim failed
on all grounds in the High Court and he sub-
sequently appealed to the Supreme Court on
one ground only, namely that condition 9 of
the Contract of Sale, which contained the
retention of Title Clause, constituted a Bill of
Sale of stock and as a result was void by
virtue of Section 36 of the 1978 Act.
HELD: —
This Appeal raised a question of the con-
struction of Section 36 of The Agricultural
Credit Act 1978. It was conceded that if a Bill
of Sale existed that it is one within the mean-
ing of the Bills of Sale (Ireland) Act 1879 and
1883. If, pursuant to Section 36, the Bill of
Sale of stock be void, what then of the sale —
do the goods not revert to the true owner?
The answer is that it is only Clause 9, the
retention of Title Clause, that is void.
Virtually every Section of part III of the
1978 Act deals with Charges on stock created
by the owner of the stock in favour of some
person or body which advances money to the
owner — chattel mortgages of several kinds,
but all being of the nature of the raising of
money using goods ar chattels as security.
Section 36, taken in the context of Part III of
the Act, as it must be, was intended and could
only be intended to apply to a Bill of Sale
given to secure the payment of monies. Con-
struing the Section accordingly, the decision
of the High Court was upheld and the Appeal
dismissed.
Bernard Somers
-v-
James Allen
(Ireland)
Limited — Supreme Court (per McCarthy J.)
22 March, 1985 - unreported.
Michael Tyrrell
INJUNCTION
Application for interlocutory injunction
against the State must be dealt with in accord-
ance with ordinary principles. No general
principle stops the Courts from granting an
injunction prohibiting the exercise of a statu-
tory power.
The Plaintiff is a limited liability company,
incorporated in Ireland and the owner of
three fishing vessels registered in the State.
The boats are used for deep water trawling
and particularly for fishing for hake.
In December 1983 the Minister for Fisheries
and Forestry issued a licence to the Plaintiff
pursuant to Section 222(b) of the Fisheries
(Consolidation) Act 1959 inserted by Section
2 of the Fisheries (Amendment) Act 1983.
The licence contained a condition that the
Plaintiff's boats were not to be used for sea
fishing unless 75% or more of the crew were
Irish citizens or nationals of another Member
State of the EEC. The operation of this con-
dition was postponed for the 1983/1984
season, but became operative on 17 August
1984. On 11 September 1984 one of the Plain-
tiff's vessels was arrested for fishing other-
wise than in accordance with the licence on
the basis that the entire crew of the vessel
were Spanish nationals. The Plaintiffs brought
proceedings in the High Court for an order
restraining the Defendants from enforcing
the condition claiming (a) that the condition
was impossible for them to comply with, as
Irish fishermen were unwilling to take up
employment on the Plaintiff's boats by
reason of the length of the sea voyages invol-
ved and the hardship of the work concerned
and (b) that the material provisions of the
Fisheries (Amendment) Act 1983 were incon-
sistent with the Constitution and with Euro-
pean Community Law and that the Plaintiff
company would be put out of business and
suffer irreparable loss. On 12 March 1985
Lardner J. in the High Court granted the
injunction sought to the Plaintiffs and the
Defendants appealed to the Supreme Court.
At the hearing of the appeal, the Defend-
ants argued that the effect of the injunction
was to suspend the exercise by the Minister of
a power expressly granted to him by statute to
impose a condition of this nature, and to
suspend the power of the Attorney General to
prosecute a criminal offence created by
statute. Accordingly it was submitted having
regard to the presumption of consistency with
the Constitution which attaches to those
statutory provisions, the true test on the
hearing of an application for an Interlocutory
Injunction was not the otherwise applicable
test as to whether the Plaintiff had established
a fair question to be tried and secondly as to
where the balance of convenience lay. The
Defendants contended that the Court should
never grant an Interlocutory Injunction which
in effect prohibited even for a temporary
period the exercise of a statutory power con-
tained in a post-Constitution statute or in the
alternative that it should only do so in the
most exceptional circumstances.
On behalf of the Plaintiff it was contended
that the application fell to be decided in
accordance with the ordinary principles laid
down by the Court concerning interlocutory
applications and that there were no grounds
for applying any different principles, that
there was a fair question to be tried and that
the balance of convenience was in favour of
the Plaintiff whose entire business would be
destroyed by a suspension of its fishing activ-
ities pending the hearing of the action.
The Court held that there was no such
general principle as was claimed by the Def-
endants. It is the duty of the courts to protect
persons against the invasion of their consti-
tutional rights or against unconstitutional
action. It would be inconsistent with that
duty if the court were to be without power in
an appropriate case to restrain by injunction
action against a person which found its
authority in a statutory provision which
might eventually be held to be invalid. Not-
withstanding the presumption of constitut-
ional validity which attaches to the statute in
question, the Plaintiff had clearly established
that there was a fair question to be tried.
The Court confirmed the order of Lardner
J. but held that while Ireland may be an
appropriate Defendant in the action it did not
appear appropriate that any injunction should
ever be given against Ireland. The injunction
was therefore given against the first and third
defendants only and was further modified to
permit the first named Defendant to continue
to investigate whether the condition was being
breached in the period up to the hearing of
the action without arresting any of the Plain-
tiff's employees or detaining their vessels.
Pesca Valentia Limited
-v-
The Minister for
Fisheries and Forestry, Ireland and the A ttor-
ney General, Supreme Court (per Finlay C. J.)
21 May, 1985 - unreported.
Karl Hayes
Copies of judgments in the above
cases are available on request from
the Society's Library. The photo-
copying rate is lOp per page.
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