244 / 264
GAZE1TE
DECEMBER 1977
RECENT IRISH CASES
Summaries ofjudgments prepared by
John Buckley, Colum Gavan Duffy,
Rory McEntee and Michael Staines.
ESTOPPEL BY WAIVER
Land required by Land Commission
to relieve congestion — objection
he a rd by the s ame
Lay
Commissioners who earlier certified
land required for relief of congestion
— Objection dismissed by Appeal
Tribunal — Appeal to Supreme
Court — against natural justice for
two Commissioners who signed
Certificate to hear objection — This
not raised before Lay Commissioners
— waived objection.
Dr. Corrigan, an Irish doctor
practising in Canada purchased lands
in Meath and hoped to retire there.
Within days of completion of the
purchase the Land Commission
served a Statutory Notice of
Inspection intimating that their
Inspector would inspect the lands for
the purpose of reporting as to their
Compulsory Acquisition. Some
mon t hs later the two Lay
Commissioners certified that the land
was required for the relief of
congestion in the immediate area.
Following this Certificate a
provisional list of land issued relating
to Dr. Corrigan's holding and he
entered an objection. His solicitors
were notified of the date of hearing
and of the identity of the
Commissioners who would hear the
objection. The Commissioners who
heard the objection were the same
two Commissioners who certified
that the land was required for relief of
congestion. Dr. Corrigan and his
advisers were aware of this fact at
all times. The hearing proceeded
without objection by Counsel for Dr.
Corrigan as to the composition of the
tribunal. Uncontroverted evidence
that the lands were required for relief
of congestion was furnished by the
Land Commission and the objection
was dismissed. An Appeal was made
to the Appeals Tribunal on grounds
which did not include the claim that
the Commissioners were disqualified
by Natural Justice from hearing the
objection by reason of their having
signed the Certificate. On the
morning of the hearing before the
Appeals Tribunal new Counsel was
instructed and given leave to amend
the Notice of Appeal by striking out
all stated grounds and substituting a
new and single ground that the
h e a r i ng
b e f o re
the
Lay
Commissioners was invalidated by
the f act that the two Lay
Commissioners
who
conducted
that hearing were the two Lay
Commissioners who had earlier
certified under Section 25 of the
Land Act, 1936, that the lands were
required for the relief of congestion in
the immediate neighbourhood. It was
not suggested that the two Lay
Commissioners were in any way
actuated by bias or that they went
outside the evidence given at the
hearing. Counsel's argument was
that they left themselves open to the
suspicion of bias, suspicion that they
might have brought to the hearing
opinions or preconcept i ons
unfavourable to the Land Owner
which they might have formed when
dealing with the material for the
purpose of the issue of the Certificate.
Counsel complained of a situation in
which actual bias might reasonably
be suspected.
Bu t l er
J.
ru l ed
t hat
notwithstanding this point the
hearing was not invalidated. An
Appeal against Butler J.'s ruling was
made to the Supreme Court.
Held
(per Henchy J.) that it was
not necessary to decide whether the
h e a r i ng by the two Lay
Commissioners was against Natural
Justice as the composition of the
Tribunal was consciously and
knowingly accepted by Counsel for
Dr. Corrigan and it was settled law
that if with full knowledge of the facts
alleged to constitute disqualification
of a member of the Tribunal the party
expressly or by implication acquieses
at that time in that member's taking
part in the hearing and in the
decision, he will be held to have
waived the objection on the grounds
of disqualification which he might
otherwise have had. This was a
waiver of a right by conduct in the
couise of the trial. The litigant cannot
blow hot and blow cold by
concealing a complaint of that nature
and hoping that the Tribunal will
decide in his favour when reserving to
himself the right, if the Tribunal gives
an adverse decision, to raise the
complaint of disqualification.
A party who knowingly and
willingly accepts the jurisdiction of a
Tribunal notwithstanding his
knowledge of a valid objection to its
constitution is deemed to have
waived that objection and is estopped
from later raising that objection on
appeal.
It was also not necessary to decide
whether the hearing by the two Lay
Commissioners was against Natural
Justice as the practice has been
d i s c on t i nued by the Land
Commission and in any event, as
there was uncontrovertable evidence
as to congestion, the remitting of the
c a s e to two o t her
Lay
Commissioners for a fresh hearing
would be merely a postponement of
the inevitable.
Laurence Corrigan v The Irish Land
Commission — Full Supreme Court
— Separate judgments delivered by
Henchy J., Griffin J., and Kenny J.
— Unreported — 29 July, 1977.
GUARDIANSHIP OF
INFANTS
Aunts awarded custody of four
children following death of mother, in
preference to father.
The plaintiff, a non-practising
Anglican husband, was married to a
Catholic wife in a Catholic Church in
London in September, 1962. There
were four children of the marriage —
three girls and a boy. M. (born
1963), G. (born 1965), T. (born
1968) and A. (born 1972). All the
children were brought up as
Catholics. The husband, 35 years of
age, worked as a foreman. Since his
marriage, the husband had lived at
six different addresses in London. In
July, 1973, the wife and the four
children went to her father's house in
Ireland, and the husband paid the
fares. The wife then informed the
husband that she did not intend to
return to England. The husband met
his father-in-law in Ireland in
September, 1973, and told him that
his relationship with his wife was
over. He then returned to England
and never subsequently got in touch
with his wife and children. The
husband subsequently associated in
London with another married woman
with four children. The husband of
the other woman obtained a decree of
divorce against his wife in May,
1974, naming the husband in this
case as co-respondent. In July, 1974,
the other woman changed her name
to that of the plaintiff.
The wife died in October, 1975,
and the three defendants, aunts of the
children, were all sisters of the wife.
The two eldest children, M. and G.
(both girls) had been living with the
21