The Gazette 1977

GAZE1TE

DECEMBER1977

INJUNCTION—DISMISSAL OF PROBATIONER GARDA Supreme Court uphold an Appeal against an Order of the High Court condemning the plaintiff's dismissal from Ms post as probationer Garda. Plaintiff was dismissed from his post as probationer Garda shortly before his two-year probation period had expired under Regulation 9 of the Garda Siochana (Appointments) Regulations 1945. Under these R e g u l a t i o ns the Ga r da Commissioner had considered that the plaintiff "is not likely to become an efficient and well-conducted Guard." He had formed this opinion after reading the plaintiff's dossier. This dossier contained several reports critical of the plaintiff. One report disclosed an abnormally high number of absences through illness. Another report stated that the plaintiff required adequate supervision on duty and went on to cast suspicion on his amount of sick-leave. A third report stated that he was inclined to be lazy and criticized his standard of discipline. Finally, the Garda Surgeon reported that his sick record was excessive and that he had a "frivolous and immature attitude to his job." Held. The test by which this case was to be decided was whether the material in the dossier was capable of supporting the Commissioner's opinion. The Commissioner was not required to reach his opinion on the basis of a personal interview. Furthermore, the Court could not reject his opinion just because it would have reached a contrary opinion. In this case, there was ample evidence in the dossier to support the opinion of the Commissioner. His order effectively terminated the plaintiffs service as a Garda. The appeal against the order of the High Court should, therefore, be allowed.^ Brendan Mary Hynes v. Edmund P. Garvey, per Henchy J.—Supreme Court (per Henchy J. with Griffin and Parke JJ.)—unreported—19 July, 1977. PLANNING ACTS Whether powers of Compulsory Acquisition vested In Planning Authority by Local Government (Planning & Development) Act, 1963. The defendant County Council

required 1 rood and 24 perches of sea shore at Spiddal, Co. Galway, and made a Compulsory Purchase Order under "Section 76 of and the Third Schedule to the Housing Act, 1966, as extended by Section 10 of the Local Government (No. 2) Act, 1960, as substituted by Section 86 of the Housing Act, 1966, and Section 77 of the Local Government (Planning & Development) Act, 1963". The plaintiff objected to the making of the Order, which was sent to the Minister for Local Government for confirmation. The Minister's officials tried to persuade the plaintiff to sell voluntarily, but failed. A public inquiry was then held and the Compulsory Purchase Order was subsequently confirmed. The plaintiff brought proceedings to have the Compulsory Purchase Order quashed on the grounds that the defendant County Council had no power to acquire lands compulsorily for the purposes of development or the provision of amenities. The defendants disclaimed any reliance on Section 10 of the Local Government (Ireland) Act, 1898 (which Section inter alia gives a County Council power to compulsorily acquire land for the purpose of their powers and duties). Held Section 10 of the Local Government (No. 2) Act, 1960, applied the procedure under the Housing Act, 1966, to acquisitions on land and other Acts, when those Acts authorised the Local Authority to acquire lands compulsorily. It is not permissible to imply that a power of compulsory acquisition has been created, because a power to develop has been conferred on a Local Authority. As Section 10 of the 1898 Act was not referred to in the Order it cannot be invoked to justify it. The Local Government (Planning & Development) Act, 1963, does not confer any power to authorise a Planning Authority to acquire land compulsorily for the purposes of that Act.

Resident Executive on the 9 March, 1977, when he was suspended with pay, and at a meeting of the Executive Council on the 11 March, 1977, when he was removed from Office. Hamilton J. stated that it was well established that the essential requirements of Natural Justice at least included that before someone was condemned he should have an opportunity of defending himself and that in order that he may do so that he should be made aware of the charges or allegations or suggestions which he had to meet; this was something which was basic to our system. Hamilton J. was of opinion that on the balance of probabilities the defendant had opened the copy letter of the 4 Marclq 1977, delivered to his office and that glancing through it he did not appreciate that it was intended by the Resident Executive to consider the question of his suspension and removal from office if he failed to answer the charges contained therein. This was supported by the fact that the letter did not in any way indicate to the defendant that if he failed to attend the meeting to which he had been summoned to answer the charges he would there and then be suspended. The letter also summoned the defendant to attend a specially convened meeting of the Executive Council on the 11 March, 1977, at the Union office but again there was no indication that his removal from office was to be considered. The General President of the Union was made aware of an entry in the defendant's working diary indicating that he was on holiday and no further effort was made to ascertain whether or not the defendant was on holiday and would thus not be in a position to attend the meetings of the Resident Executive and the Executive Council. Hamilton J. held that the resolution of the Executive Council of the plaintiff Union removing the defendant from office was null and void and he made declarations in accordance with Nos. 1, and 2, of the defendant's Counterclaim but limited damages to the l oss of the defendant's salary. National Engineering and Electrical Trade Union, and Eustace Connolly, Joseph Carter and Sylvester Sheridan (Trustees) v. Kevin M. P. McConnell —The High Court—Judgment of Hamilton J.—Unreported—20 June, 1977.

Movie News Limited v. Galway County Council-The High Court — J ud gme nt of Ke n ny J.—unreported—30 March, 1973.

An appeal in this case was dismissed on procedural grounds by the Supreme Court on the 15 July, 1977.

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