O'Driscoll v Cork County Council

• Jurisdiction: Ireland
• Judgment Date: 25 March 1930
• Date: 25 March 1930
• Court: High Court (Irish Free State)

O'Driscoll v. Cork Co. Council

PATRICK J. O'DRISCOLL

and

COUNTY COUNCIL OF THE CO. OF CORK, and in the MATTER of the COURTS OF JUSTICE ACT, 1924 (1)

High Court

Local Government - Abolition of rural district council - Solicitor to the council - Claim to a gratuity - Claim not admitted - Appeal to Minister for Local Government - Delay in appealing - Statutory remedy - Prescribed time limit - Mandamus - Public Authorities Protection Act,1893 (56 & 57 Vict. c. 61) - Local Government Act, 1925 (No. 5 of1925), sect. 42 (ii), sect.. 44, sub-sects. 2, 3, and 6.

O'D. was appointed in 1917 solicitor to a rural district council by a resolution of that body, and he continued to act as such until the council was abolished on October 1st, 1925, under the provisions of the Local Government Act, 1925. On 14th February, 1927, he applied to the county council, to whom the powers and duties of the abolished rural district council had been transferred, for compensation for loss of his position as solicitor, and he received a reply stating that the matter would be submitted to the county council in due course. He wrote several other letters, without getting a satisfactory answer, the correspondence continuing up to March, 1929. On 24th February, 1927, he wrote to the Department of Local Government, putting before that Department his claim for loss of office. He subsequently applied for, and obtained, a conditional order for a writ of mandamus to compel the county council to determine the amount of the gratuity or compensation to which he was entitled under sect. 44, sub-sect. 3, of the Act.

Held that the conditional order must be made absolute, notwithstanding O'D.'s delay in enforcing his claim, and notwithstanding the fact that sub-sect. 6 of the said sect. 44 provided that if an officer of a local body was aggrieved by the neglect or refusal of the local body to grant him a gratuity, he might, within six months of his ceasing to hold his office, appeal to the Minister for Local Government, who might grant him any gratuity which should have been granted by the local authority - the Court being of opinion that this sub-section afforded no answer to O'D.'s claim, since his status was in question, as the county council had denied that he was an officer entitled to a gratuity under the provisions of the Act.

R. (Brown) v. Wicklow County Council, [1900] 2 I.R. 351, applied.

Mandamus.

The prosecutor, Patrick J. O'Driscoll, solicitor, applied to make absolute a conditional order of mandamus, dated the 29th day of July, 1929, directed to the County Council of the County of Cork (hereinafter referred to as "the defendant council"), commanding them, pursuant to sect. 44, sub-sect. 3, of the Local Government Act, 1925, to determine, for submission to the Minister for Local Government and Public Health, the amount of the gratuity or compensation to which he was entitled as solicitor to the former Bandon Rural District Council, this council having ceased to exist by virtue of the provisions of the Local Government Act, 1925. By sect. 3, sub-sect. 1, of the Local Government Act, 1925 (No. 5 of 1925), it was provided

that "on and after the appointed day all rural district councils shall cease to exist, and upon the appointed day the powers and duties (subject to the provisions of this Act), and the property, debts, and liabilities of the council of every rural district within a county, shall be transferred to the council of such county, and the council of such county shall be the successors of the council of such rural district." And sub-sects. 2 and 3 of the section directed how the debts and liabilities of a rural district council were to be paid. The "appointed day" mentioned in this section was defined by sect. 1 of the Act to mean the first day of October, 1925.

The prosecutor, in his affidavit upon which the conditional order had been obtained, stated that on 22nd day of September, 1917, he was duly appointed solicitor to the Bandon Rural District Council by resolution of that body, and from that date to the date of the abolition of the said Council he acted as solicitor in pursuance of the said resolution and annually earned fees as such solicitor, and these fees were duly paid to...