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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