The Gazette 1988

GAZETTE

OCTOBER 1988

economy, if the injunction were not granted, the Plaintiff would probably have to cease operating either because of heavy fines or the inability to get crew, in wh i ch event the benefit to the economy from the landing of catches in Ireland would be lost. Weighing all the factors, the balance of convenience lies w i th the Plaintiff, at least until the European Court of Justice have handed d o wn their judgement in the reference. The Court granted the injunction restraining the Minister from enforcing the condition in the licence until further order, w i th liberty to apply w h en the judgement of the European Court of Justice had been obtained. The Court noted that its injunction would not make the act legal if it is ultimately held that the Minister was acting within his powers. It merely postponed any en- forcement of the law. Beara Fisheries and Shipping Ltd -v- The Minister for the Marine, Ireland and the Attorney General. High Court (per Carroll J.) 31 July 1987 - 119881 ILRM 221. KARL HAYES The Respondent female was mentally retarded since birth. As a day pupil, she attended a school for mentally retarded children maintained by the Midland Health Board (the Board) until she was 18 years of age. Thereafter, still residing at home, she attended an adult training centre maintained by the Board which was associated w i th the school. Prior to March 1987 persons e m p l o y ed by t he B o a r d, w h o w e re concerned w i th the care and training of the Respondent, came to the conclusion, for reasons stated by t h em in affidavits before the Court, that the Respondent's welfare was at risk of serious harm should she continue to reside at home. On 10 March 1987 she was admitted to a residential institution suitable for mentally retarded persons maintained by the Board. In August 1987 the Respondent's parents applied to the High Court for an Order of Habeas Corpus naming as Respondents the Board and certain other persons. An Order was made pursuant to article 40(4)(2) of the Constitution directing the Respondents to produce the body of the Respondent before the Court and to certify in writing the grounds of her detention. On the hearing of that return before the President of the High Court the Board sought an adjournment to permit it to lodge a Petition in Wardship and that was granted. The Habeas Corpus a p p l i c a t i on w as adjourned. Following legal submissions on the hearing of the Petition, the President concluded as a matter of law that it was a condition precedent to the exercise by him of his jurisdiction to bring persons of unsound mind into his wardship that they be entitled to property w h i ch required management and/or protection. He also concluded that the Respondent was entitled to have her welfare protected by the Courts if that was proved to be necessary and for WARDSHIP Application to make a Parson a Ward of Court. Whathar necessary such parson should have or ba entitled to property requiring management and/or pro- tection.

that purpose he directed that she should be represented by a Guardian ad litem w h o should be heard on the adjourned hearing or the application under article 4 0 ( 4 X 2) of the Constitution. In the hearing before him the President made no determination as to whether the e v i d e n ce a d d u c ed e s t a b l i s h ed an unsoundness of mind in the Respondent within the meaning of the phrase in the lunacy code. Neither did he determine that the evidence established a necessity for the protection of the person of the Respondent. These points were not in issue in the subsequent appeal to the Supreme Court. The Board appealed to the Supreme Court against the President's decision that as a matter of law it was a condition precedent to the exercise by him of his jurisdiction to bring persons of unsound mind into his wardship that they be entitled to property w h i c h r e q u i r ed m a n a g e m e nt a n d / or protection. In the Supreme Court the legal argument centred on the effect of the Lunacy Regulations (Ireland) Act 1871 and section 9 of the Courts (Supplemental Provisions) Act 1961 on the jurisdiction of the High Court in lunacy matters. H e l d by the Chief Justice delivering the judgement of the Supreme Court allowing the appeal, that there is vested in the High Court jurisdiction where necessary and appropriate to take into its wardship a person of unsound mind w h o se person requires protection and management but w h o is not entitled to any property w h i ch requires protection or management. In substitution for the order made in the High Court, the Supreme Court made an Order permitting the Petition filed in the case to be deemed as an application for an enquiry as to the unsoundness of mind of the Respondent and as an application for admission into wardship of the Court. Acknowledging that the point did not arise for decision in the case before the Court, the Chief Justice expressed a view that on a hearing of an application pursuant to article 49(4)(2) of the Constitution the High Court must reach a single decision, namely, wh e t h er the detention of the person concerned is or is not in accordance w i th law. If it is, then the application must be refused. If it is not, the person must be discharged from the custody in which he is. This procedure did not appear to the Chief Justice to admit of any supervision or monitoring of the interests of the person concerned, even allowing for a condition of mental retardation or other want of capacity. In the Matter of an Application by the Midland Health Board Supreme Court (per Finley C.J. nam.diss) 11988) ILRM 251. DENIS GREENE ADOPTION Whether coneent of mother to the plecement by the Adoption Society of her illegltimete child wee free end fully informed — principles eppliceble in reletlon to sppesl f r om High Court to Supreme Court. The adoption society's social worker met the mother w h o stated she was expecting a child and wanted to have the child placed for adoption. After the child was born the

Recent Ir ish Cases

Ed i t ed by Ga ry By r ne

INJUNCTION In an application for an injunction against the State, in consideration where the balance of convenience Ilea, tha fact that tha injunction may postpone trial for criminal offences is a factor to be considered but Is not a bar to tha granting of an injunction. Fishing licences issued by the State to allow long-line fishing in territorial waters contain conditions requiring a certain percentage of the crew of each fishing vessel to be Irish nationals. These conditions have caused difficulty. In an earlier case of Pesca Valentia -v- The Minister for Fisheries, the High Court found that the evidence established o v e r w h e l m i n g ly that Irish fishermen are not prepared to crew on vessels wh i ch are more than a day or t w o out of port. In the Pesca Valentia case, the issues were referred to the European Court of Justice for a preliminary opinion, and the decision of that Court is awaited. The instant case involved similar issues. The Plaintiff company sought an injunction to restrain the State from enforcing the conditions of the licence, thus allowing it to employ Spanish fishermen w h o were prepared to crew the vessels. If the injunction was not granted, the Plaintiff w o u ld face serious financial consequences, perhaps ruin. If the Plaintiff had to cease fishing because of inability to get crews in accordance w i th the conditions of the licence, and ultimately succeeded in the action, it would not be possible to recover damages, as a suit for damages wo u ld not lie against the Minister acting w i t h in his power. If the Plaintiff continued to fish in breach of the condition, it wo u ld be liable on conviction to substantial fines and forfeiture. As far as the Defendants were concerned, the balance of the convenience had t w o aspects - upholding the criminal law until the European Court of Justice holds to the contrary, and ensuring that the economic benefits from the Hake quota allotted to Ireland are directed into the Irish economy. H e l d following the judgement in the Pesca Valentia case, that the current approach is to treat the postponement of trial for criminal offences due to breach of the condition in the licence, as a factor to be considered in weighing the balance of convenience, and not as a bar to the granting of an injunction. In relation to the Irish

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