Byrnes v Lockyer and Others

JurisdictionIreland
Judgment Date31 July 1932
Date31 July 1932
Docket Number(1931. No. 67. P.)
CourtSupreme Court (Irish Free State)

Supreme Court.

(1931. No. 67. P.)
Brennan v. Lockyer and Others.
THOMAS BRENNAN
Plaintiff
and
WILLIAM LOCKYER AND OTHERS, Representing THE UNION OF POST OFFICE WORKERS' MUTUAL BENEFIT SOCIETY, Defendants (1)

Practice - Service out of the jurisdiction - Contract sought to be enforced alleged to have been made within the jurisdiction - Insufficiency of plaintiff's affidavit - Want of uberrima fides - Proposed defendants having no property within the jurisdiction - Exercise of the Court's discretion, as to granting leave to issue and serve summonses out of the jurisdiction having regard to the nature of the action - Rules of the Supreme Court (Ir.), 1905, Or. XI, r. 1 (f), rr. 2 and 4.

Appeal by the defendants from an order of Johnston J., dated the 13th day of May, 1931, refusing to set aside an order of O'Byrne J., dated the 12th day of January, 1931, by which liberty was granted upon an ex parte application by the plaintiff to issue an originating summons against the defendants for service out of the jurisdiction. The material facts have been summarised in the head note, and are set out in the judgment of Kennedy C.J.

The defendants appealed on the grounds that the decision of Johnston J. was wrong in law and on the facts in holding that the contract in the case was made within the jurisdiction of the Courts of the Irish Free State.

Plaintiff applied ex parte under Or. XI, r. 1 (f) of the Rules of the Supreme Court (Ir.), 1905, for leave to issue an originating summons for service out of the jurisdiction, alleging that the contract which he sought to enforce was made within the jurisdiction. Plaintiff's affidavit, on which he based his application, stated that the intended nation was to recover a sum of £81, which he claimed as benefit due to him by the intended defendants, L. and others, who were members of the Committee of Management and Secretaries of the Union of Post Office Workers' Mutual Benefit Society. having an address in London. He stated that he had been for a period of about 21 years a member of the Society (having joined it in the year 1909), and had been employed during all that time as a postman in Dublin, and had contributed fortnightly contributions to the local secretaries of the Society in Dublin until February, 1930, when he had retired from the postal service under Art,. X of the Anglo-Irish Treaty. He had then made application to the local secretary of the Society in Dublin for "full benefit," i.e, benefit upon the basis that his retirement was not voluntary, but the society had disputed hie claim on the ground that his resignation was voluntary. He alleged that all the transactions in respect of which the action was being brought arose in the Irish Free State. O'Byrne J. granted his application. The plaintiff thereupon issued a plenary originating summons against the defendants, claiming a declaration that he was entitled to"full benefit" in accordance with the rules of the Society, and for an account of all monies due to him by the Society for "full benefit," and for payment of the amount so found. The defendants applied to the High Court to set aside the order of Byrne J. and the summons, basing their application on an affidavit made by the defendant, L., who was the Treasurer of the Union of Post Office Workers and the Secretary of the said Union of Post Office Workers' Mutual Benefit Society L. stated that the Society did not come into existence until the year 1919, and therefore that the plaintiff's statement that he had become a member in 1909 was not true. L. stated that in 1909 there was in existence the"Postmen's Federation" with the "Postmen's Federation Mutual Benefit Society" attached thereto, but that they had been amalgamated with two other associations, and a new Union and Society were formed, viz.: the "Union of Post Office Workers" and the "Union of Post Office Workers' Mutual Benefit Society" of which the plaintiff then became a member, L. exhibited the plaintiff's application for membership of the"Postmen's Federation Mutual Benefit Society" and the certificate issued in pursuance thereof. From these it appeared that in 1909 the Dublin Secretary sent to the office of that Society in London a document proposing the plaintiff as a member, and the certificate which was sent from London to the Dublin Secretary for delivery to the plaintiff certified his member ship. The present "Union of Post Office Workers' Mutual Benefit Society"

(which the plaintiff proposed to sue by their officers) had no branch in the Irish Free State. Johnston J. who heard the application refused to set aside the order of O'Byrne J. The defendants appealed to the Supreme Court.

Held (reversing Johnston J.) that the order giving leave to issue the originating summons for service out of the jurisdiction should be set aside upon the grounds: 1, that there was a definite failure of uberrima fideson the part of the intended plaintiff in the affidavit upon which the order was obtained; 2, that there were not materials before the Court sufficient either to enable the Court to determine the question whether the cause of action fell within Or. XI, r. 1 (f) or not, or to enable the Court to exercise its discretion as to comparative cost and convenience under Or. XI, r. 2; and 3, that the case was not one in which the jurisdiction to issue a summons for service out of the jurisdiction ought to be exercised, even if it existed upon the facts as they were presented to the Court.

Cur. adv. vult.

Kennedy C.J. : —

This was an appeal from an order of Mr. Justice Johnston dismissing an application to discharge an order made by Mr. Justice O'Byrne giving leave to issue an originating summons for service out of the jurisdiction. The order of Mr. Justice O'Byrne was made on the ex parte application of the plaintiff, Thomas Brennan, grounded on his affidavit, filed the 10th of January, 1931. In this affidavit the

plaintiff stated that the action (to institute which he proposed to issue the originating summons), was being taken by him to recover a sum of £81 which he claimed as benefit due to him by the intended defendants, William Lockyer and others, members of the Committee of Management and Secretaries of the Union of Post Office Workers' Mutual Benefit Society, with an address at No. 43 Cromwell Road, South Kensington, London. The deponent stated that he had been for a period of about twenty-one years a member of the Union of Post Office Workers' Mutual Benefit Society, and that during all that time he had been employed as a postman in the postal service in the city of Dublin, and had contributed to the local secretaries of the Society in Dublin, a subscription payable every fortnight until the 21st of February, 1930, when, as he alleged, he had retired from the postal service under Article 10 of the Anglo-Irish Treaty. He then made an application to the local secretary of the Society in Dublin for "full benefit" —that is to say, benefit upon the basis that his retirement was not voluntary. He had received a cheque for a sum of £19, only, and had received from the intended defendant, William Lockyer, as Central Secretary of the Society, a letter disputing his claim to full benefit, on the ground that withdrawal from the postal service under Article 10 of the Treaty was a voluntary resignation, in which case full benefit was not payable The deponent accepted the sum sent him as a payment on account. He went on to say that he became a member of the Society in Dublin in the year 1909, and paid all his subscriptions to the local secretaries, who were also members of the Society, and he alleged that— "all the transactions in respect of which the action was being brought arose in Saorstát Éireann éireann within the jurisdiction of this honourable Court." He further said that he had instructed his solicitors to ascertain from the solicitors of the Society the names of the proper parties...

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