Delahunt v Moody

JurisdictionIreland
Judgment Date28 November 1928
Date28 November 1928
CourtSupreme Court (Irish Free State)

Supreme Court.

Delahunt v. Moody
In the MATTER of the Workmen's Compensation Act
1906
and in the MATTER of an Arbitration between JOHN DELAHUNT, Applicant, and JAMES MOODY,Respondent (1)

Workmen's compensation - Request for arbitration - Refused "without prejudice" - Validity of order - Whether order constituted an adjournment of proceedings - Second request for arbitration - Award - Jurisdiction of Circuit Court Judge to entertain second request - Application of County Court procedure to arbitrations under the Workmen's Compensation Act - Civil Bill (Ir.) Act, 1851 (14 & 15 Vict. c. 57), sect. 111 - Workmen's Compensation Act, 1906 (6 Ed. 7, c. 58), sects. 1, sub-sect.(3), 2, Sch. II, Arts. 2, 4, 12 - Consolidated Workmen's Compensation (Ir.) Rules, 1917, rr. 27, 88.

Appeal from an order of the High Court (Sullivan P. and O'Byrne J.), dated the 4th day of March, 1927, made on the hearing of an appeal under the Workmen's Compensation Act, 1906.

James Moody, the appellant, had appealed to the High Court from an award of the Circuit Court Judge for Wicklow, made on the 21st day of December, 1926, which awarded compensation to John Delahunt, a workman employed by the appellant, and the appellant had applied for an order that the said award might be set aside and discharged. The grounds of the appeal to the High Court, as set out in the appellant's notice of motion, dated the 3rd day of January, 1927, are stated in the judgment of the Chief Justice, post, p. 212. The High Court held that the objection taken on behalf of the appellant as to the jurisdiction of the Circuit Court Judge to enter on the arbitration could not be sustained, and ordered that the matter of the appeal be sent back to the Circuit Court Judge to consider and determine whether want of notice of the accident within the terms specified by sect. 2 of the Workmen's Compensation Act, 1906, was a bar to the maintenance of proceedings, having regard to the provisions of sect. 2, sub-sect. (1) (a), of the Act, and whether the failure to bring proceedings within the time specified by the Act was a bar to the maintenance of the proceedings, having regard to the provisions of sect. 2, sub-sect. (1) (b), of the Act, and to deal with the proceedings and to make his award in accordance with such determination.

The facts have been summarised in the head-note, and are fully stated in the judgment of the Chief Justice.

The grounds of the appeal to the Supreme Court were that the Circuit Court Judge had no jurisdiction to entertain the request for arbitration, dated the 19th day of July, 1926, or to make the award dated 21st day of December, 1926, by reason of the fact that he had already made his award, dated the 7th day of July, 1926, in respect of the same accident, between the same parties, refusing the said application for compensation "without prejudice," and with costs; and on the grounds that the said award dated the 7th day of July, 1926, was final, and that the words "without prejudice" were added without jurisdiction, and in excess of jurisdiction, and were void, and of no effect; and that the said judgments of the Circuit Court Judge and of the High Court on the hearing of the appeal from the Circuit Court Judge were erroneous in law in not allowing the answer and objection, dated the 29th day of October, 1926, of the appellant.

The power of dismissing a civil bill without prejudice to the plaintiff's proceeding by a new civil bill, given to a County Court Judge (now, in the Irish Free State, a Circuit Court Judge) by sect. 111 of the Civil Bill (Ir.) Act, 1851, is not applicable to an arbitration under the Workmen's Compensation Act, 1906.

So held by the Supreme Court.

Mountain v. Parr, [1899] 1 Q.B. 805; Sutton v. Great Northern Railway Co., [1909] 2 K.B. 791; and Taylor v. Cripps, [1914] 3 K.B. 989,applied.

A workman lodged a request for arbitration under the Workmen's Compensation Act, 1906, on 24th June, 1926, claiming compensation in respect of an accident which occurred on 2nd June, 1925, and on the 7th July, 1926, the Circuit Court Judge, after hearing evidence, ordered that the application be "refused without prejudice," and ordered the workman to pay the employer's costs. The Judge considered that the workman's case had not been proved to his satisfaction, but he did not wish to prevent the workman bringing forward his application again on additional medical evidence. No appeal was taken from the order. On 19th July, 1926, the workman lodged a second request for arbitration, and on the 21st December, after hearing additional evidence, the Judge awarded the workman compensation. The employer appealed to the High Court on the grounds that the refusal of compensation by the Judge on 7th July was final; that the workman had failed to give notice of the accident or to make a claim within the prescribed time, and that the Judge had omitted any finding in the workman's favour on either of these points. The High Court held that the Judge's refusal of compensation on 7th July was not final, and remitted the case to him to determine the questions arising upon the absence of notice and the absence of a claim within the prescribed time. Subsequently the Circuit Court Judge made a further award, deciding the two questions referred to him in the workman's favour, and amending his prior award in respect of costs. The employer appealed from the decision of the High Court to the Supreme Court.

Held by the Supreme Court (FitzGibbon and Murnaghan JJ.; Kennedy C.J. dissenting) that the refusal of compensation by the Circuit Court Judge on 7th July was final, notwithstanding that that refusal dismissed the application "without prejudice"; that that refusal could not be treated as a nullity, nor as a mere adjournment of the application, and accordingly that the Circuit Court Judge had no jurisdiction to entertain the second application for arbitration, and therefore the appeal from the High Court must be allowed.

Cur. adv. vult.

Kennedy C.J. :—

James Moody, the present appellant, is a victualler in the town of Wicklow. John Delahunt, the respondent, alleges that on the 2nd June, 1925, he being then a working butcher in the employment of the appellant, the second finger of his right hand was cut by a bone while he was cutting meat, and that the injury sustained by him has caused total incapacity for work of uncertain duration. Delahunt was employed at a weekly wage of £2 10s., and he claims to be entitled to compensation under the Workmen's Compensation Act, 1906. He did not serve on his employer notice in writing of the alleged accident until 20th May, 1926. On the 24th June, 1926, Delahunt issued a request for arbitration in the regular form under the statutory rules. Moody delivered answers in writing, in which he denied the alleged accident and the alleged injury, and also objected that notice of the accident was not given, and claim for compensation was not made, within the times respectively limited by the Act. On the 7th July, 1926, the application for arbitration came on for hearing before the learned Circuit Judge at Wicklow (Judge Doyle), who made an order in these terms:—

"I order that the application for compensation be and same is hereby refused without prejudice."

The Judge further ordered that Delahunt pay to Moody "his costs of and incidental to this arbitration," together with witnesses' expenses.

On the 19th July, 1926, Delahunt issued a new request for arbitration under the Workmen's Compensation Act, 1906, in respect of the same alleged accident and injury. This document was a replica of that served in June. In both the questions alleged to have arisen, and upon which arbitration was requested, were the same, viz.: (1) whether Delahunt was a workman to whom the Act applied; (2) as to the liability of Moody to pay compensation under the Act in respect of the injury; and (3) as to the amount or duration of the compensation payable by Moody. Answers in writing were again delivered by Moody, to the same effect as before, but with the additional answer that the order of 7th July, 1926, though it purported to be "without prejudice," was final and conclusive; and that the applicant, Delahunt, was estopped by that order from proceeding with the arbitration; and that there was no jurisdiction to entertain the new application.

The new application came on for hearing before the learned Circuit Judge on the 21st December, 1926. The preliminary objection to jurisdiction was at once taken on behalf of the respondent, Moody, and was, after argument, overruled by the learned Judge, who said that he was not bound to dispose finally of the proceedings on the first hearing, "if he feels it is in the interest of justice—that what is a shadow of doubt, or what is a possible source of amendment of evidence at the first hearing, may fructify in the presentation of evidence on the second hearing—that it is open to him to keep it open to that extent."Then, after a very full hearing, he made an award in favour of the applicant, Delahunt; ordering that Moody pay him full weekly compensation as from 20th October, 1925, and that Moody also pay Delahunt's costs of that arbitration, such costs to be set off against the costs given to Moody by the order of 7th July, 1926.

Moody appealed to the High Court by an elaborate notice of appeal, setting out his grounds under three heads, very fully and carefully stated. The first ground taken was the finality and conclusiveness of the order of 7th July, 1926; the estoppel of the applicant from further proceeding; and the want of jurisdiction in the Circuit Court to entertain the second application. The second ground was the failure of the applicant to give notice of the accident in accordance with the statute, and the absence of any finding by the Circuit Judge that the appellant was not prejudiced in his defence by such failure to give notice, or that such failure was occasioned by...

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2 cases
  • Delahunt v Moody
    • United Kingdom
    • Privy Council
    • 1 January 1929
    ...Court to His Majesty in Council under Art. 66 of the Constitution of the Irish Free State. The judgment of the Supreme Court is reported [1928] I.R. 208. The Judicial Committee held that the case was not one which involved a question of such importance that they should advise that leave to ......
  • McDaid v O'Connor and Bailey Ltd
    • Ireland
    • Supreme Court
    • 30 March 1954
    ...[1929] A. C. 651. (1) [1904] 1 K. B. 235. (2) [1910] 1 K. B. 685. (3) [1943] I. R. 41. (4) [1948] 1 K. B. 111. (5) [1936] I. R. 360. (6) [1928] I. R. 208. (1) [1907] A. C. (2) [1929] A. C. 651. ...

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