The Gazette 1977

Extradition Foreign law - Application for leave to adduce evidence of foreign law to establish foreign warrant issued without jurisdiction — Application refused wrongfully - (124/75 - Supreme Court — 1/6/76). Gillespie v. The Attorney General.

owner of vehicle when it was used by third party when user was not covered by policy of insurance — Failure of user to produce on demand such policy — No such demand made on defendant — Whether presumption that no policy in existence — Complaint properly dismissed - Case stated — Road Traifflc Act, 1961, ss. 56 (4) 69 - (1975 No. 553 SS. - Gannon J. - 15/3/76). Lyons v. Cooney. Sentence Detention - St. Patrick's Institution- Prisoner serving sentence of imprisonment — Appeal by prisoner to Circuit Court from earlier sentence of detention imposed by District Court — Sentence of detention affirmed with variation — Circuit Court purporting to postpone start of detention until expiration of existing sentence of imprisonment — Lack of jurisdiction — Certiorari - (127/1976 - Supreme Court - 21/10/76). The State (White) v. Martin. Sentence Mistake — Two months imprisonment — Sentence recorded as "three months imprisonment" — Judicial shorthand for "convicted and sentenced to three months imprisonment" — Order of certiorari quashing sentence only - Effect of order - Conviction and sentence not severable — Conviction also quashed — Order prohibiting District Justice from substituting "two months imprisonment"- (39/1973 - Supreme Court - 5/4/1976). The State (Burke) v. o hUadhaigh. Warrant Validity — Sentence of 7 years penal servitude be imposed —Sentence recorded on warrant as "to be detained in military custody for a period of 7 years" - Warrant held to be valid - (189/75 - Supreme Court - 27/1/76). The State (Flannery) v. Governor qf Military Detention Barracks. Fault —Apportionment —Plaintiff claiming damages for personal injuries caused by alleged negligence of two defendants — Question of liability of each party left to jury — Question of degrees of fault of each party also left to jury although trial judge ultimately responsible for deciding those questions — Civil Liability Act, 1961 s. 38 - (1974 No. 3554P - Murnaghan J. - 24/11/76) - Interlocutory ruling during trial. Lynch v. Lynch. Assessment House destroyed — Cost of rebuilding plaintiff's house awarded as damages rather than market value of destroyed house — (1975 No. 3504P - Finlay P. - 30/7/76). Munnelly v. Calcon Ltd. Assessment Inconvenience and discomfort — Breach of building contract - Failure of defendant to implement compromise — (1975 No. 4344 — DAMAGES Assessment

Assessment Injury resulting from death — Claim on behalf of dependants of deceased —Wife and four children — Posthumous child — Deceased farmer with forty acres - Children too young to suffer mental distress — Apportionment of damages - (1975 No. 68P - Murnaghan J. - 5/10/76). O'Sullivan v. Coras Iompar Eireann. Contract Breach — Termination of commercial agreement - Whether plaintiff's damages limited to compensation for loss — Whether such damages should deprive defendant of uqjust enrichment resulting from his breach — Breach not calculated by defendant to obtain benefit of uqjust enrichment — Damages restricted to compensation for loss — (1975 No. 1007P - Finlay P. 14/7/76). Hickey A Co. Ltd., v. Roches Stores Stores (Dublin) Ltd. Contract Breach — Termination of doctor's contract for services — Three months' notice — Three months salary in lieu of notice — Three months profits for loss of authorised concurrent private practice also awarded— Expenses of removal awarded — (1964 No. 4 Sp. - Gannon J. - 9/7/76). Discharge — Natural justice — Audi alteram partem — Rule ignored by Minister — Member the holder of an office upon statutory terms — Discharge invalid — Defence Forces Regulations A. 10, paragraph 58 (r) - Defence Act, 1954, s. 73 - (6/76 - Supreme Court - 1/7/76). The State (Gleeson) v. Minister for Defence. EMERGENCY POWERS Police Arrest — Suspect thought to have committed offence — Release after expiration of statutory period of detention - Suspect arrested a second time in respect of the same offence - Suspect not charged — Whether second period of detention lawful — Habeas corpus — Emergency Powers Act, 1976, s. 2 - (1976 No. 443 SS-Finlay P. - 12/11/76). The State (Hoey) v. Commissioner qf Garda Siochana. EJECTMENT Trespasser Building erected by trespasser — Owner having no knowledge until building completed in eighth year of ownership — Genuine mistake by trespasser who nevertheless had means of knowledge that he was trespassing - Order for possession with stay to enable defendant to pay value of site and damages — Stay to be perpetual if payment made — (1974 No. 2597P - Finlay P. - 28/7/76). McMahon v. Kerry County Council. EVIDENCE Estoppel Statutory power — Statutory power to be exercised after specified event - Authority exercising power before specified event — Authority exercising power properly on second occasion — Whether authority bound by exercise of power on first occasion — No estoppel in face of statute - (1976 No. 143 SS - McMahon J. - 24/6/76). Greendale Building Co. v. Dublin County Council. Murphy v. Mulligan. DEFENCE FORCES Member

HIGH COURT Jurisdiction

Affiliation - Adaptation of High Court procedure to produce procedure prescribed by statute — Claim for maintenance in excess of District Court jurisdiction - (212/75 — Supreme Court - 29/7/76). O. v. W.

HUSBAND AND WIFE Infant

Custody — Failure of marriage —Daughter aged 6 years and son aged 3 years - Custody of both children awarded to mother - (1976 No. 77 Sp. - Hamilton J. - 17/6/76). O'D. v. O'D. Infant Custody - Two sons and one daughter —14, 9 and 3 years - Mother remarrying after divorce in England - Mother pregnant - Children to continue in father's custody — (1975 No. 244 Sp. - McWillaim J. - Custody — Wife applying for sole custody for purpose of taking child abroad — Intention of wife to marry paramour abroad and to change her religion for that purpose — Husband alive within jurisdiction — Both parents Catholics — No express mutual promise at date of marriage to rear children in that faith — Such promise implied (In re May, 92 I.L.T.R. 1). Application refused and custody awarded to father — (Parke J. — 4/2/76). H. v. H. Marriage Nullity — Marriage not consummated — Husband not impotent as such but only in relation to wife — Marriage in 1969 — Decree obtained in ecclesiastical court —Decree of nullity granted to wife — (1/75 — Supreme Court - 1/7/76). S. v. S. Property Matrimonial home - Wife's application for declaration of her estate or interest - Wife's contribution on purchase of house — House conveyed to husband and wife as joint tenants — No reason to alter effect of conveyance at common law — Wife not given and not entitled to any interest in second house purchased solely by husband - Married Women's Status Act, 1957, s. 12 - (1976 No. 77 Sp. - Hamilton J. - 17/6/76). 26/1/76). M. v. M. Infant

O'D. v. O'D. INDUSTRY Apprentices

McWilliam J. - 22/6/76). Murphy v. Quality Homes. Assessment

Training scheme - Statutory levy imposed on employers - Constitution - Statute - Validity - Delegated legislation - (1974 No. 3902P - McMahon J. - 28/5/76). City View Press Ltd. v. An Comhairle Olliunta. (Training Board). 5

Inconvenience and loss of enjoyment — Breach of building contract - Defects in new house — Assessment of cost of repairs — (1974 No. 198P - McMahon J. - 19/5/76). Johnson v. Longleat Properties.