324 / 330
GAZETTE
JULY/AUGUST 1986
not obliged to give reasons for its
decision to grant planning approval;
6. the learned trial Judge erred in law in
failing to hold that the principles of
res
judicata
applied to the first-named
Respondent's decision of 20 May, 1983
having regard to its earlier decision of
25 February, 1982 in that both
decisions involved the common central
issue namely the developmental and
environmental and town planning
consequences
of
permitting
the
érection of the single storey dwelling in
the garden at the rere of a house in
Temple Road, Dublin."
A further ground agreed was to the
effect that the original outline permission
was abandoned by bringing the other
applications
for
detailed
planning
permission. The Prosecutor's argument
that where an individual has obtained
outline permission and does not pursue the
standard course in respect of it — applica-
tion for planning approval within the
outline permission — but a different form
of permission in a more detailed, or indeed,
in another way " he abandons his existing
permission". The Court held that this
argument was inconsistent with the wording
of Section 29 Sub Section 1 of the 1976 Act
and Section 2 of the 1982 Act which set
time limits on the durations of planning
permissions. Noting the cases of
Slough
Estates Ltd.
-v-
Siough Borough
Council
(No. 2) [1949] 2 All ER 988 and
Pioneer
Aggregates
Ltd.
-v-
Secretary
of
State
[1984] 2 All ER 58, the Court held that in
this case there was no question of abandon-
ment. In relation to Ground 1, the Court
approved the view of the trial Judge that
the holding of Barrington J. in
The State
(Pine
Valley Developments)
Ltd.
-v-
Dublin County Council
[1982] ILRM 169,
that a planning authority in considering an
application for approval was confined
"within the four walls of the outline
permission granted in respect of the same
lands" was correct.
On Ground 4, the Court held that the
Bord had a statutory duty to state its
reasons and had done so.
On Ground 5, the Court noted that no
authority had been cited to support the
proposition that it was a principle of
natural justice that the reasons for
decisions should be given by administrative
bodies.
Ground 6, the Court approved the view
of the High Court that the principle of
res
judicata
could be applied to a decision of
the Bord relying on the views of Gavan
Duffy J. in
Athlone Woollen Mills Ltd.
-v-
Athlone Urban District Council
[1950] IRI
and noted that on the facts the trial Judge
had rejected the application of the
principles so as to benefit the Prosecutors
and agreed with the decision of the High
Court. The Court accordingly dismissed
the appeal.
The State (at the Prosecution
of James F.
Kenny A Dermot Hussey) -v- An
Bord
Pleanala A Patrick Meenan
-
Supreme
Court (per McCarthy
J.), 20
December
1984.
John F. Biickley
CONSTITUTIONAL LAW
Article 34 - Indictable Offences Triable in
the Circuit Court - Whether Appellant is
entitled as of right to Trial in the Central
Criminal Court - High Court Jurisdiction
Considered.
The Appellant was sent forward for trial
to the Dublin Circuit Criminal Court on a
charge of fraudulently converting to his
own use a cheque for £9,376 contrary to
Section 20(1 )(iv)(a) of the Larceny Act,
1916. As the Law now stands he has no
right to trial in the Central Criminal Court
and he claimed that withholding from him
the right to a trial in that Court was
unconstitutional.
The charge against the Appellant was not
a minor offence and therefore must be tried
before a Jury. The legislation presently
governing the right of transfer to a trial is
Section 31 of the Courts Act 1981 which
repealed Section 6 of the Courts Act 1964.
The 1964 Act allowed a right of transfer
from the Circuit Court to the Central
Criminal Court for any person who had
been sent forward for trial to the Circuit
Court. Procedure for transfer was by way
of application to the relevant Judge of the
Circuit Court and he exercised his
discretion as to whether to allow the
application. In repealing Section 6 of the
1964 Act, Section 31 of the 1981 Act
abolished the right of transfer to the
Central Criminal Court. Instead a person
who was sent forward for trial to a Circuit
Court sitting other than within the Dublin
Circuit could apply for a transfer to the
Dublin Circuit.
The Appellant claimed that this removal
from him of an opportunity of having a
trial in the Central Criminal Court had the
effect that Section 31 of the Courts Act
1981 (insofar as it repeals Section 6 of the
Courts Act 1964) was inconsistent with
Article 34.3.1 of the Constitution which
provides that "the Courts of the first
instance shall include a High Court
invested with full original jurisdiction in
and power to determine all matters and
questions whether of law or fact, civil or
criminal".
In making his decision Henchy J. stated
that the use of the plural "Courts of first
instance" both in Article 34.2 and Article
34.3.1 shows that the High Court is not to
be the only Court of first instance: Further-
more Article 34.3.1 cannot be read literally
as to do so would bring this Article into
conflict
with
other
constitutional
provisions. He referred specifically to
Article 34.3 which debars the High Court
from determining the constitutionality of a
statutory provision declared constitutional
by the Supreme Court in a reference under
Article 26. Also Article 34.4.6 provides
generally that the High Court cannot
entertain any question which has been
previously determined by the Supreme
Court. This Article amounts to a recogni-
tion of the fact that the High Court is not
expected to be a suitable forum for hearing
and determining at first instance all
justicable matters.
Henchy J. reiterated that despite the
unambiguous terms of Article 34.3.1 it
cannot be given its literal construction and
the more fundamental rule of constitu-
tional interpretation, that the Constitution
must be read as a whole should prevail.
When applying this construction, an
interpretation which will give due and
harmonious
effect to any
potential
conflicting provisions should be adopted
where possible.
The Court accepted that if article 34.3.1
is read literally and in isolation from the
rest of the Constitution it would support
the Appellant's claim. But the Court did
not accept this as the correct interpretation
and in support of its decision to interpret
the Constitution in a general context the
Court referred to the inter-relation between
Article 34.3.1 and Article 34.3.4 which has
the effect that whilst the District Court or
the Circuit Court may be given sole
jurisdiction to determine a particular case
the full jurisdiction of the High Court
could still be invoked by proceedings such
as
Habeas Corpus, Certiorari,
Prohibition,
Mandamus,
Injunctory or Declaratory
Actions.
Furthermore, excepting those indictable
offences which Parliament considered to be
the
most
serious
(notably
treason,
genocide, certain offences under the
Offences Against the State Act 1939,
murder, attempted murder and piracy) all
indictable offences are triable in the Circuit
Court where there is provision for Appeal
in all cases where a conviction arises. Such
an Appeal to the Court of Criminal Appeal
invokes the original jurisdiction of the
High Court.
The Appellant did not contend that he
was prejudiced by the mere fact of having
to stand trial in the Circuit Court but it was
noted that it would be very difficult for this
argument to be successfully advanced.
Accordingly the Appeal was dismissed
and the Order of the High Court affirmed.
Philip
Tormey
-v-
Ireland
and
The
A ttorney General (per Henchy J.), 16 May,
1985 — unreported.
Felicity Hogan
EMPLOYMENT
Temporary workers supplied by an
Employment Agency: Are they employees
of the 'Client' Company?
The complainant in this case sought to
prosecute the Defendant for certain alleged
breaches of the Holidays (Employees) Act
1973. The prosecution was brought in the
District Court against the Defendant as the
employer of Philomena McNulty ("the
employee"). The matter was referred to the
High Court by way of consultative case
stated. The question raised by the case
stated was as follows—
"Was
Philomena
McNulty
an
employee within the meaning of the
Holidays (Employees) Act 1973 of the
P.M.P.A. between the 25 February
1981 and 7 October 1983?"
The employee worked for the Defendant
at the material time as a temporary typist.
She was engaged by the Defendant under
the terms of an agreement between it and
the Alfred Marks Bureau (Ireland) Ltd.
("the Bureau"). Under the terms of that
agreement, the Defendant paid hourly
charges to the Bureau in respect of the
work done by the employee. The Bureau
was declared to be the employer and was
responsible for the payment of wages and
deductions of taxes. The Defendant was
vi