Hempenstall (The State) v Judge Shannon and District Justice Reddin

• Jurisdiction: Ireland
• Judgment Date: 31 January 1936
• Date: 31 January 1936
• Court: High Court (Irish Free State)

The State (Hempenstall) v.

THE STATE (at the prosecution of James Hempenstall)

and

JUDGE SHANNON K.C. and DISTRICT JUSTICE REDDIN, and in the Matter of the Courts of Justice Act, 1924 (1)

High Court.

District Court - Jurisdiction - Power to award costs - Summons under Married Women (Maintenance in case of Desertion) Act, 1886 (49 & 50 Vict. c. 52), sect. 1 - No power conferred by the Act to award costs - Former jurisdiction inside Metropolitan Police District - Dublin Police Act,1842 (5 & 6 Vict. c, 24), sect. 59 - Former jurisdiction of Justices outside Dublin Metropolitan Police District - Petty Sessions (Ir.), Act, 1851 (14 & 15 Vict. c. 93), sect. 22, sub-sect. 9 - Jurisdictions transferred to District Court - Courts of Justice Act, 1924 (No. 10 of 1924), sect. 78 -Jurisdiction to award costs under Dublin Police Act, sect. 59, transferred to District Court.

Sect. 78 of the Courts of Justice Act, 1924, provides that there shall be transferred to the District Court (inter alia) all jurisdiction which at the commencement of the Act was vested in or capable of being exercised by the Divisional Justices of the Police District of Dublin Metropolis. That jurisdiction included that conferred by the Dublin Police Act, 1842, sect. 59 of which provided that it should be lawful for any Divisional Justice who should hear and determine any charge or complaint to award such costs as to him should seem meet to be paid to or by either of the parties to the said charge or complaint. Sect. 91 of the Courts of Justice Act, 1924, provides for the making of rules "for carrying into effect this Part of this Act" (the Part relating to the District Court), and in particular, rules might be made (inter alia) for "the practice and procedure of the District Court generally including questions of costs." Rule 37 (a) of the District Court Rules, which were made pursuant to sect. 91, provides that a District Justice who shall hear and determine any charge or complaint shall have power to order any party to the said charge or complaint (other than the Attorney-General or a member of the Civic Guard in his official capacity) to pay to the other party such costs as to him shall seem meet.

Held that Rule 37 (a) was validly made.

Accordingly, when a District Justice makes an order under sect. 1 of the Married Women (Maintenance in case of Desertion) Act, 1886, for a husband to pay to his wife a weekly sum for her maintenance, the District Justice has power to order the husband to pay a sum for costs although the Act itself contains no provision for the payment of costs.

Certiorari.

Upon a complaint by one, Mabel Hempenstall, residing at Hill House, Kilmainham, Dublin, a summons under the Married Women (Maintenance in case of Desertion) Act, 1886, was issued against her husband, James Hempenstall, of Woodfield, Rathfarnham, County Dublin.

The summons came on for hearing on the 20th November, 1933, before District Justice Reddin, sitting as one of the Justices assigned to the District Court Area of Rathfarnham (District No. 12) at the Courthouse, Howth, County Dublin, and the District Justice, having adjudged that the...