O'Doherty v Attorney-General and O'Donnell

• Jurisdiction: Ireland
• Judgment Date: 20 June 1941
• Date: 20 June 1941
• Court: High Court

(H.C.),

O'Doherty

and

Attorney-General and O'Donnell

Claim for pension -Statutory duty of Referee under Military Service Pensions Act, 1934 - Construction of statute - Meaning of "service" - Remedy for breach of statutory duty - Mandamus or judicial declaration -Jurisdiction of High Court to make declaration in regard to matter confided to special tribunal - Discretionary power - Principles applicable to exercise of discretion - Not exercised where more appropriate remedy available - Practice - Procedure -Joinder of Attorney-General as defendant -Tribunals of Enquiry (Evidence) Act, 1921 (11 Geo. 5, c. 7), s. 1 - Military Service Pensions Act, 1924 (No. 48 of 1924), s. 1 - Military Service Pensions Act, 1934 (No. 43 of 1934), s. 2 (1), ss. 3, 8 (2) (a), s. 9 - Constitution of 1937, Art.37.

1. (1) Sect. 2 (1) of the Military Service Pensions Act, 1934, provides: —"A person shall for the purposes of this Act be deemed to have been serving in the Forces while such person was rendering active service in any of the bodies which constitute the Forces and, in the case of a person who served as a member of the Irish Volunteer Executive or of the Headquarters Staff of Oglaigh na hEireann (Irish Republican Army) or in the Intelligence Branch of any of the bodies which constitute the Forces, while such person was so serving." Sect. 3 provides: —"(1) This Act applies to every person —(a) who served in the Forces at any time during the week commencing on the 23rd day of April, 1916, or who served in the Forces continuously during either of the following periods, that is to say, the period commencing on the 1st day of April, 1920, and ending on the 31st day of March, 1921, and the period commencing on the 1st day of April, 1921, and ending on the 11th day of July, 1921, and (b) who served in the Forces at any time during the period commencing on the 1st day of July, 1922, and ending on the 30th day of September, 1923, and (c) who is not a person to whom the Act of 1924 applies."The plaintiff, who was desirous of obtaining a pension in respect of his military service, applied to the Minister for Defence for a Service Certificate under the Military Pensions Act, 1934, such Certificate being a necessary preliminary to obtaining a military service pension under the Act. The plaintiff stated that he became a member of the Irish Volunteers in 1913 and as such member was engaged upon active service in the week commencing on the 23rd April, 1916. He also stated that...