Cork County Council v Whillock

JurisdictionIreland
CourtSupreme Court
JudgeO'Flaherty J.,EGAN J.
Judgment Date01 January 1993
Neutral Citation1992 WJSC-SC 3239
Docket Number[S.C. No. 78 of 1988],(78/88)
Date01 January 1993

1992 WJSC-SC 3239

THE SUPREME COURT

O'Flaherty J.

Egan J.

Blayney J.

(78/88)
CORK CO COUNCIL v. WHILLOCK

BETWEEN

THE COUNTY COUNCIL OF THE COUNTY OF CORK
APPLICANTS

AND

PAUL WHILLOCK AND HIS HONOUR JUDGE ANTHONYMURPHY
RESPONDENTS

Citations:

MALICIOUS INJURIES ACT 1981 S23

MALICIOUS INJURIES ACT 1981 S23(2)

MALICIOUS INJURIES ACT 1981 S14

DUBLIN CORPORATION V CARROLL 1987 IR 401

MALICIOUS INJURIES ACT 1981 S8

MALICIOUS INJURIES ACT 1981 S14(3)

STATUTE OF LIMITATIONS 1957 S49(1)

INTERPRETATIN ACT 1937 S11

GANLEY & ORS V MIN FOR AGRICULTURE 1950 IR 191

SMITH V DUBLIN CO COUNCIL 35 ILTR 110

LOCAL GOVT (IRL) ACT 1898 S5(7)

GRAND JURY ACT 1836 S137

DAMAGE TO PROPERTY (COMPENSATION) ACT 1923 S21

DAMAGE TO PROPERTY (COMPENSATION) ACT 1923 S21(1)

DAMAGE TO PROPERTY (COMPENSATION) ACT 1923 S21(2)

STATUTE OF LIMITATIONS 1957 S11(1)(e)

WOODROW PACKAGING LTD V DUBLIN CORPORATION UNREP MCMAHON 26.7.83 1983/12/3742

MAXWELL ON INTERPRETATION OF STATUTES 12ED 28

Synopsis:

CIRCUIT COURT

Jurisdiction

Time limit - Extension - Malicious injuries - Compensation - Claim - Institution - Extension authorised by special statute - (78/88 - Supreme Court - 3/11/92) - [1993] 1 I.R. 231

|Cork County Council v. Whillock|

LIMITATION OF ACTIONS

Time limit

Extension - Circuit Court - Jurisdiction - Action - Cause - Malicious injury - Compensation - Claim - Jurisdiction conferred by special statute - Malicious Injuries Act, 1981, ss. 9, 13, 14, 23 - (78/88 - Supreme Court - 3/11/92) - [1993] 1 I.R. 231

|Cork County Council v. Whillock|

PRACTICE

Time limit

Extension - Malicious injuries - Compensation - Claim - Institution - Extension authorised by special statute - (78/88 - Supreme court - 3/11/92) - [1993] 1 I.R. 231

|Cork County Council v. Whillock|

1

Judgment of O'Flaherty J.delivered the 3rd day of November, 1992. [BLAMNEYAGR]

2

The appellant, Mr. Paul Whillock, claims that a fire occurred at premises owned by him at Loughboy, Ringaskiddy, Co. Cork on or about the 13th November, 1983. On the 14th November, 1983 his solicitor served apreliminary notice of intention to apply for compensation for malicious damage in respect of the premises and that was duly served on Cork County Council.

3

Section 23 of the Malicious Injuries Act, 1981provides that proceedings under the act should not be commenced after the expiration of three years from the date on which the cause of action accrues. A cause of action under the Act accrues on the date of the service of a preliminary notice (section 23 (2)).

4

Proceedings had not been so commenced within the stipulated time. On the 24th April, 1987, the appellant applied to the Circuit Court at Midleton, Co. Cork, for an order extending the time for the making of an application for compensation. By order of His Honour Judge Anthony Murphy dated the 5th May, 1987, the time for the making of an application to the Court for compensation was extended.

5

Cork County Council submits that in ordering an extension of time the learned Circuit Court judge wasacting in excess of jurisdiction. It appears that the County Council initially wished to appeal that decision to the High Court; the Council was itself out of time for appealing and applied for an extension of time which was granted by the Master of the High Court and that order, in turn, was subject to an appeal to the Court. There was also a question concerning the Circuit Court order giving "liberty to apply" which was understood by the appellant's advisers to mean that the County Council might wish to avail of a case stated. That was not the County Council understanding; the County Council thought that was put there to give it an opportunity of considering an ordinary appeal. However, we are not concerned with these ancillary proceedings because they were discontinued and Mr. McKechnie S.C. on behalf of the County Council has accepted that if the Circuit Court judge had jurisdiction to make the order that he did he would have been entitled to do so on the merits of the application. So, therefore, the sole question with which this appeal is concerned iswhether the learned Circuit Court judge had jurisdiction to make the order. That, in turn, requires an answer to the question whether section 14 of the Malicious Injuries Act, 1981, empowered the court to make such an order.

6

The learned High Court judge (Carroll J.) in her judgment delivered on the 22nd February, 1988, held that the learned Circuit Court judge had no jurisdiction to extend the time and that, therefore, the Circuit Court order should be quashed.

7

In the course of her judgment, the learned High Court judge followed her previous decision in Dublin Corporation .v. Carroll (1987) I.R.401. In the course of her judgment in that case the judge recited that the point at issue (as in the present case) was whether section 23 of the Malicious Injuries Act, 1981, bars the right and the remedy conferred by the act and is unaffected by section 14 of the same act.

8

Section 23 provides as follows:-

9

(1) Proceedings under this act shall not be commenced after the expiration of three years from the date on which the cause of actionaccrued.

10

(2) A cause of action under this act shall accrue on the date of the service of a preliminary notice under section 8.

11

(3) Section 49(1) (which relates to limitation in case of disability) of the Statute of Limitations, 1957, shall apply to a right of action under this Act as if, in paragraph (a) of that subsection, the reference to that Act were a reference to this Act and for "six years" there were substituted "three years".

12

Section 14 provides:-

13

(1) An application for compensation under this Act shall not be made except in accordance with rules of court.

14

(2) Rules of court regulating the practice andprocedure in relation to such applications shall provide that non-compliance therewith shall not render any proceedings void unless the court shall so direct.

15

(3) The court may, in relation to any act or proceedings under this Act or under rules of court made for the purposes of this Act, extend the time for, set aside either wholly or in part, amend or otherwise deal with in such manner and on such terms as the court may think just, such act or proceedings.

16

The judge held that prima facie there was a contradiction between the two sections. She pointed out that section 23 was a provision stated in negative terms and that there was no saver such as "subject to section 14" but that sub-section (3) makes special provision for persons under a disability by incorporating section 49 subsection (1) of the Statute of Limitations, 1957, as amended by subsection (3) itself. The judge also referredto section 10 where there was an express power in the court to extend a time limit and concluded:-

"Therefore there are three approaches used by the draftsman, a positive time limit under s. 8, a positive time limit with a saver under s. 10 and a negative time limit under s. 23 with a saver for those under a disability. Taking the statute as a whole, I am of opinion that s. 14 does not apply to the negative prohibition against commencing proceedings after the expiration of three years from the accrual of the cause of action and therefore that three years is an absolute period beyond which both the right and the remedy are barred unless sub-s 3 of s 23 applies." (at p. 403)

17

Mr. McKechnie submits that we should follow the reasoning in that case. He says that essentially section 14 is concerned with procedural matters and that section 23 is a classical formulation of a limitation periodwhichprovides an absolute bar to the bringing of proceedings after the expiration of the time limit with the sole exception providing fordisability.

18

There is no doubt that if section 23 stood alone his submission would beunanswerable.

19

However, it does not stand alone and regard must be had to...

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