Dublin Corporation v Lowe

JurisdictionIreland
JudgeFINLAY C.J.
Judgment Date17 December 1986
Neutral Citation1986 WJSC-SC 498
Docket Number[S.C. No. 245 of 1986]
CourtSupreme Court
Date17 December 1986

1986 WJSC-SC 498

THE SUPREME COURT

Finlay C.J.

Walsh J.

Griffin J.

Hederman J.

McCarthy J.

245/86
DUBLIN CORPORATION v. ASHLEY

BETWEEN

THE RIGHT HONOURABLE THE LORD MAYOR, ALDERMEN AND BURGESSES OF DUBLIN
Plaintiff

and

JOHN ASHLEY
Defendant
AND BETWEEN
THE RIGHT HONOURABLE THE LORD MAYOR, ALDERMEN AND BURGESSES OF DUBLIN
Plaintiffs

and

THOMAS LOWE
Defendant

Citations:

COURTS OF JUSTICE ACT 1947 S16

DUBLIN CORPORATION WATERWORKS ACT 1861

LOCAL GOVT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S8

LOCAL GOVT (SANITARY SERVICES) ACT 1962 S7

PUBLIC HEALTH (IRL) ACT 1878 S65(a)

PUBLIC HEALTH (IRL) ACT 1878 S65(a)(7)

TOMLINS-JACOBS LAW DICTIONARY 1797

Synopsis:

CASE STATED

Issues

Circuit Court - Single original issue - Case stated by Circuit Court judge in general terms - Case stated for determination of question of law by Supreme Court - Decision of Supreme Court in favour of plaintiff on original issue - New relevant issue raised by Supreme Court at hearing of Case - Decision of Supreme Court to determine new issue - ~D. v. C.~ (292/84 - Supreme Court - 13/12/85) distinguished - Distinction between hearing of Case stated by judge and hearing of appeal by party to an action - New issue determined by Supreme Court in favour of defendant - (245/86 - Supreme Court - 17/12/86) - [1986] IR 781

|Corporation of Dublin v. Ashley|

LOCAL GOVERNMENT

Service charges

Water supply - Authority for charge - Method of payment - Validity - Retrospective effect of charge - By order of 25/10/83 the City Manager fixed a charge, payable on demand, for the period to 31/12/83 for water supplied by the plaintiff for domestic purposes in the city of Dublin - On 25/5/84 the City Manager made a similar order imposing a charge, payable either in full or in two equal instalments, for water so supplied in the same area - Shortly after the date of each order the plaintiff demanded of the defendant in writing the payment of the sum of #50 - The defendant did not pay the sums demanded - The plaintiff obtained in the District Court decrees for the payment by the defendant of the said sums - At the hearing of an appeal by the defendant to the Circuit Court, the defendant submitted that each order was invalid because its effect was retrospective - The plaintiff's evidence was that the first order was intended to apply to the period from its date to the end of 1983, and that the second order was intended to apply to the 1984 calendar year - The authority for such charges was s.8 of the Act of 1983, which became law on 12/7/83 - At the hearing of a Case stated by the Circuit Court judge it was held that the first order was prospective in effect and that any retrospective effect of the second order did not render that order invalid - Held that the authority for such charges was s.65A(7) of the Act of 1878 (as inserted by s.8 of the Act of 1983) which states that a charge under that section for water supplied shall be payable in advance by equal half-yearly instalments on 1st April and 1st October or by such other instalments as the sanitary authority to whom the charge is payable shall determine - Held that the intention of the legislature excluded the treatment of the word "instalments" as being singular under s.11(a) of the Act of 1937 so as to authorise a single payment - Held that the first order, which made the entire charge payable on demand, was not authorised by s.65A(7) of the Act of 1878 and was, therefore, ~ultra vires~ the plaintiff corporation as sanitary authority - Held that the second order was ambiguous in relation to the requirement of a single payment while the subsequent demand was for a single payment and that, accordingly, the second order was invalid either because it had been made ~ultra vires~ the plaintiff corporation or because of the uncertainty of its terms - Public Health (Ir.) Act, 1878, s.65A - Interpretation Act, 1937, s.11 - Local Government (Sanitary Services) Act, 1962, s.7 - Local Government (Financial Provisions) (No. 2) Act, 1983, s.8 - (245/86 - Supreme Court - 17/12/86) - [1986] IR 781

|Corporation of Dublin v. Ashley|

SUPREME COURT

Case Stated

Issues - Circuit Court - Single original issue - Case stated by Circuit Court judge in general terms - Determination of original issue by Supreme Court in favour of plaintiff - New relevant issue raised by court at hearing of Case - Decision of court to determine new issue - ~D. v. C.~ (292/84 - Supreme Court - 13/12/85) distinguished - Distinction between hearing of Case stated by judge and hearing of appeal by a party to an action - New issue determined by court in favour of defendant - (245/86 - Supreme Court - 17/12/86) - [1986] IR 781

|Corporation of Dublin v. Ashley|

1

JUDGMENT delivered on the 17th day of December 1986 by FINLAY C.J. [NEM DISS]

2

This is a Case Stated by Judge Gerard Clarke, assigned to the Dublin Circuit, pursuant to Section 16 of the Courts of Justice Act 1947, seeking the determination of certain questions of law which arose in an identical fashion in the two above-entitled caaes.

3

On the 25th day of October 1983 the City Manager and Town Clerk for the City of Dublin made an Order pursuant to the provisions of Section 65(a) of the Public Health (Ireland) Act 1878 as inserted by Section 7 of the Local Government (Sanitary Services) Act 1962, as amended by the provisions of the Local Government (Financial Provisions) (No. 2) Act 1983, fixing a charge, payable on demand, for the period to the 31st December 1983 for water supplied for domestic purposes in the City Area and in the Extra-Municipal Areas as defined in the Dublin Corporation Waterworks Act 1861. The amount of the charge was a sliding scale according to the rateable valuation of the premises to which the water was supplied.

4

On the 25th day of May 1984 the City Manager and Town Clerk made an Order purporting to be pursuant to the same statutory provisions for the period to the 31st December 1984 "payable either...

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