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now passed. During those three years
the condition was observed.
Compliance with the condition had
no affect on the sewage disposal
facilities. Those facilities were the
same as they were when the condition
was imposed. So it was urged that the
condition could not be deemed good
because its supporting reason was
wanting in feasibility of purpose.
Held
(per Henchy J.) that the
Court found it unnecessary to give a
ruling as to whether the condition
was invalid from the beginning for
having been given for a bad reason
because even if the condition was
held to have been validly imposed it
no longer had any force. The
condition had become a dead letter
which must now be ignored in
constructing the present legal force
and validity of the permission. The
Court held that the Plaintiffs'
challenge to the validity of the
permission, whatever strength it
might have had when the proceedings
were instituted must now be held to
have failed.
KflUney & BaOybraek Development
Association Limited v. The Minister
for Local Government and Templefln
Estates
ij—hm (No. 2) Supreme
Court (Henchy J., with Griffin and
Parke JJ.) — Unreported — 24
April, 1978.
NEGOTIABLE — BILL OF
EXCHANGE
Drawer not entitled to set off counter-
claim for unliquidated sum against
amount due on BID of Exchange.
The Plaintiffs supplied yam to the
second-named defendants. The
defendants gave the plaintiffs two
Bills of Exchange in payment for the
yarn and subsequently dishonoured
them. The defendants claimed that
the yarn contained a twist which
made cloth made from it defective.
The defendants attempted to
minimise their alleged loss by selling
the cloth made from the defective
yarn at a lower price and estimated
their nett loss at £21,907.05.
The plaintiffs claimed £25,586.56
with interest on foot of the Bills of
Exchange and obtained judgment for
that sum in the High Court. The
defendants had sought a stay on the
ground that the defendants should be
allowed to bring a counter-claim for
loss for breach of contract but the
President of the High Court had
refused to accede to defendants
request. The defendants appealed to
the Supreme Court against this
refusal.
Held
(per Henchy J.) that it was
well settled in a line of cases from
Warwick v. Nairn
(1855) 10 Exch.
762 to
Nova (Jersey) Knit v.
Kammgarn Spinnerei
(1977) 2ALL
E.R. 463, including the unreported
Irish case of
Prendergast v. Biddle
(No. 36 of 1957, Supreme Court 31
July, 1957) that a counter-claim for
unliquidated damages under a
contract for sale cannot be raised
against a claim on a bill of exchange.
Gerrit Vandelden &Company & Ore
v. Scafldd Gentex Limited & Anor.
Supreme Court (Henchy J., with
concurring judgment by Kenny J.,
and with O'Higgins CJ . and Griffin
and Parke JJ.) — Unreported — 21
July, 1978.
Certiorari - CRIMINAL LAW
Evidence of pervious convictions
which are In dispute should be
properly proved — a failure to hear
submissions from Defendant on
evidence of convictions Is a breach of
basic principles of the administration
of justice — courts discretion to
decline to quash order nonetheless
applied.
Prosecutors had pleaded guilty at
Mountmellick District Court to
charges relating to breaking and
entering. After submissions wore
made on their behalf by their
solicitor, the Garda Superintendent
informed the Court of their previous
convictions. Both accused were
convicted and sentenced to twelve
months imprisonment.
Both prosecutors separately
applied for and obtained conditional
orders of certiorari on the grounds
(1) that the alleged previous
convictions had not been properly
proved, (2) that some of the alleged
convictions did not relate to the
prosecutor. (3) an in one of their
cases that prejudicial information
was proffered. Applications to have
the conditional order made absolute
were taken together.
The Superintendent deposed that
he had read out the convictions from
a photostat copy of the Garda
Criminal History Sheet and that
neither the prosecutors nor their
solicitor raised any objections nor
required him to be examined under
oath.
The Prosecutors submitted that
the convictions should have been
proved in a regular manner and they
should have been given an
opportunity of considering and
challenging such evidence. The
evidence as given constituted at best
hearsay by an unsworn witness.
Prosecutors sought that the
conditional order be made absolute
without any distinction between
c o n v i c t i on
and
s e n t e n ce
notwithstanding that they had
pleaded guilty.
Held:
(i) Before passing sentence
the Court should hear evidence of the
antecedents and character of
convicted persons.
(ii) The Prosecutors should have
been given an opportunity of
admitting or denying each alleged
previous conviction before such
information was put before the
Court. In respect of any conviction
disputed by an accused, proper
evidence such as production of a
Court Order, would be required to
put the fact of such conviction before
the Court.
(iii) This should have been done
before the solicitor for each
prosecutor addressed the Court.
(iv) The failure to hear the
c o n v i c t ed p e r s on and h is
representative on these matters after
they had been read in Court was a
"failure in procedure of one of the
basic principles of the administration
of justice".
(v) Since these orders, though
offending against basic principles of
justice, were made within jurisdiction
the Court will exercise its discretion
not to quash them. At present
appeals are pending in the Circuit
Court and any irregularities can be
examined there.
The State (Stanbrldge) v. District
Justice Mahon; The State (Murphy)
v. District Justice Mahon
- High
Court (Gannon J.) — 6th June 1978
— unreported.