Fitzpatrick v Minister for Industry and Commerce

• Jurisdiction: Ireland
• Judgment Date: 18 May 1931
• Date: 18 May 1931
• Docket Number: (1930. No. P./353/30.)
• Court: High Court (Irish Free State)

Fitzpatrick v. Minister for Industry & Commerce

HUGH DONALD FITZPATRICK

Plaintiff

and

THE MINISTER FOR INDUSTRY AND COMMERCE

Defendant.

(1930. No. P./353/30.)

Patent agent - Register of patent agents - Eligibility for registration - Statutory alteration in conditions of eligibility - Removal from register - Retrospective legislation - Industrial and Commercial Property (Protection) Act, 1927 (No. 16 of 1927), sect. 63, sub-sects. 1 and 2 - Industrial and Commercial Property (Protection) (Amendment) Act,1929 (No. 13 of 1929), sect. 7, sub-sect. 2.

The Industrial and Commercial Property (Protection) Act, 1927 (hereinafter referred to as "the Act of 1927"), provided by sect. 63:—

"(1) Any person who—

• (a) resides or has a place of business in Saorstát Éireann éireann, and

• (b) is not an alien, and

• (c) possesses the prescribed educational and professional qualifications, and

• (d) complies with the prescribed conditions,

shall be eligible to be registered on the register of patent agents, and shall on application in the prescribed form and manner and payment of the prescribed fee be so registered.

(2) Any person registered in the register of patent agents who

• (a) ceases to be eligible to be so registered,

. . . . . . . .

may be removed by the Minister [the Minister for Industry and Commerce] from the register of patent agents . . ."

Sub-sect. 1 of sect. 63 was amended by sect. 7, sub-sect. 2, of the Industrial and Commercial Property (Protection) (Amendment) Act, 1929 (hereinafter referred to as "the Act of 1929"), passed on the 18th May, 1929, which provided:—

"On and after the expiration of three months from the passing of this Act section 63 of the Principal Act [the Act of 1927] shall be construed and have effect as if the following paragraph were inserted in sub-section (1) thereof in lieu of paragraph (a) now contained therein, that is to say:—

'(a) both resides and has a place of business in Saorstát Éireann éireann,and.'"

The plaintiff, a patent agent, who had carried on business as such in Dublin from the year 1919, was, on the 19th November, 1927, registered as a patent agent in the register of patent agents established pursuant to the Act of 1927. He had a place of business, but had no residence, in Saorstát Éireann éireann. By a sealed order, dated July 1st, 1930, the Minister for Industry and Commerce, purporting to exercise the power of removal from the register conferred on him by sect. 63, sub-sect. 2, of the Act of 1927, removed the plaintiff's name from the register, on the ground that he had ceased to be eligible to be registered, as he did not both reside and have a place of business in Saorstát Éireann éireann. The plaintiff brought an action against the Minister, claiming (a) a declaration that he had not ceased to be eligible to be registered in the register of patent agents; (b) a declaration that the order of July 1st, 1930, purporting to remove him from the register was null and void; and (c) an order directing the Minister to restore him to the register.

Held that sect. 7, sub-sect. 2, of the Act of 1929 had no reference to persons already registered, being a mere statement of the conditions of eligibility that were to apply at the expiration of three months from the date of the passing of the Act. And, as the plaintiff had never ceased to conform to the conditions of eligibility which enabled him to be registered, he was entitled to remain on the register, and the relief claimed by him must be granted.

Trial of Action.

The plaintiff, Hugh Donald Fitzpatrick, was a patent agent, having been admitted as a Fellow of the Chartered Institute of Patent Agents, London, in the year 1889. Since the year 1919 he had carried on in Dublin the business of patent agent, and on November 19th, 1927, was registered as a patent agent in the register of patent agents established pursuant to the provisions of the Industrial and Commercial Property (Protection) Act, 1927 (No. 16 of 1927), having complied with the conditions of eligibility set forth in sect. 63, sub-sect. 1, of the said Act, and with the rules made by the Minister for Industry and Commerce in pursuance of sect. 63, sub-sect. 3, of the Act. The plaintiff had a place of business—Unity Buildings, Lower O'Connell Street, Dublin—in Saorstát Éireann éireann, and from the date of his registration as a patent agent had therein carried on the business of a patent agent, but he did not reside in Saorstát Éireann éireann. He had at all material times complied with the provisions of the Ack, and with the Register of Patent Agent Rules, 1927, as amended by the Rules of 1928, made by the Minister for Industry and Commerce and by the Minister for Finance in pursuance of sect. 63, sub-sect. 3, of the Act.

On May 19th, 1929, the Industrial and Commercial Property (Protection) (Amendment) Act, 1929 (No. 19 of 1929), was passed, sect. 7, sub-sect. 2, of which amended sub-sect. 1 of sect. 63 of the Act of 1927. (Both sub-sections are set out in the head-note, and sub-sect. 2 of sect. 63 is set out below (1).)

By letter, dated February 13th, 1930...