Irish Refining Plc v Commissioner of Valuation

JurisdictionIreland
CourtSupreme Court
JudgeFINLAY C.J.
Judgment Date01 January 1990
Neutral Citation1989 WJSC-SC 1748
Date01 January 1990
Docket Number[S.C. No. 41 of 1988]

1989 WJSC-SC 1748

THE SUPREME COURT

Finlay C.J.

Hederman J.

McCarthy J.

41/88
IRISH REFINING PLC v. COMMISSIONER OF VALUATION
JUDICIAL REVIEW
IN THE MATTER OF SECTION 10 ANNUAL REVISION
OF RATEABLE PROPERTY (IRELAND) (AMENDMENT)
ACT 1860
AND IN THE MATTER OF SECTION 31(3) COURTS
OF JUSTICE ACT 1936

BETWEEN

IRISH REFINING PUBLIC LIMITED COMPANY
Applicant

and

THE COMMISSIONER OF VALUATION
First Respondent

and

HIS HONOUR JUDGE SEAN MacD. FAWSITT
Second Respondent

and

CORK COUNTY COUNCIL
Notice Party

Citations:

ANNUAL REVISION OF RATEABLE PROPERTY (IRL) AMDT ACT 1860 S10

COURTS OF JUSTICE ACT 1947 S16

PRENDERGAST V PORTER 1961 IR 440

THOMPSON V CURRY 1978 IR 61

MORGAN V EDWARDS 1860 5 H & N 415

VALLEY BRIGHT V RICHARDSON 1985 STC 70

HUGHES V VINER 1985 3 AER 40

SOUTHERN HEALTH BOARD V REEVES SMITH 1980 IR 24

BROWN V DONEGAL CO COUNCIL 1980 IR 145

DPP V GANNON UNREP SUPREME 03.06.86 EX TEMPORE

INSPECTOR OF TAXES V KIERNAN 1981 IR 117

DUFFY, STATE V PHEASANTRY LTD UNREP HIGH 11.05.87

COMMISSIONER OF VALUATION, STATE V O'MALLEY UNREP MCWILLIAM 1984/4/1115

GANLY V MIN AGRICULTURE 1950 IR 191

BENNION STATUTORY INTERPRETATION

M'KEONE, ap., BRADFORD 7 IJ (NS) 157

GAUSSEN V LOWER BANN 1929 NI 11

MONTREAL STREET RAILWAY 1917 AC 170

MOORE V HUGHES 1947 KB 831

DOLAN V O'HARA 1975 NI 125

RAINSFORD V LIMERICK CORPORATION 1995 2 ILRM 561 1981/7/1121

COURTS OF JUSTICE ACT 1936 S31(3)

IRISH REFINING PLC, IN RE EGAN 25.1.88 1988/5/1353

DPP V O'CONNOR HIGH 9.6.83 1983/8/2284

Synopsis:

STATUTORY INTERPRETATION

Time limit

Compliance - Failure - Rights not barred - Provision merely directory - Failure to transmit Case Stated within period specified - ~See~ Case Stated, transmission - (41/88 - Supreme Court - 4/5/89) - [1990] 1 I.R. 568

|Irish Refining Plc v. Commissioner of Valuation|

CASE STATED

Transmission

Time limit - Expiration - Failure to transmit - Rights not barred - Statutory requirement - Compliance with requirement merely directory - Delay issue raised on appeal - Held that the transmission provision in s. 10 of the Act of 1860 was directory and mandatory: Prendergast v. Porter [1961] I.R. 440 approved - Annual Revision of Rateable Property (Ireland) Amendment Act, 1860, s. 10 - Courts of Justice Act, 1936, s. 31 - (41/88 - Supreme Court - 4/5/89) - [1990] 1 I.R. 568

|Irish Refining Plc. v. Commissioner of Valuation|

1

JUDGMENT delivered on the 4th day of May 1989 by FINLAY C.J. [Nem Diss]

2

This is an appeal brought by the Applicant against the Order of the High Court made on the 25th day of January 1988, dismissing its application by way of judicial review for an order of prohibition to prevent the second-named Respondent from stating a case to the High Court pursuant to Section 10 of the Annual Revision of Rateable Property (Ireland) (Amendment) Act 1860 ("the 1860 Act") as adapted and amended by Section 31(3) of the Courts of Justice Act 1936("the 1936 Act").

3

In May 1977 the Applicant's premises were at its request placed in the annual revision list of the Cork County Council for a review of the valuation then attached to it in the sum of £24,000. No change in that valuation was effected on that revision.

4

In October 1978 that decision was appealed to the Commissioner of Valuation who in turn gave his decision in July 1979 and left the valuation of £24,000 unchanged. That valuation was, in the same month appealed to the Circuit Court by the Applicant and came before that Court in May of 1980.

5

The learned Circuit Court Judge decided to state a consultative case to the Supreme Court under Section 16 of the Courts of Justice Act 1947.

6

That case came before the Supreme Court in February 1984 and was not entertained by this Court as no findings of fact had been made and the evidence had not been completed. The valuation appeal before the Circuit Court then came on for hearing in June of 1984 and the learned Circuit Court Judge in a reserved decision given on the 13th July 1984 reduced the valuation of the premises concerned from the sum of £24,000 to a sum of £1,217. The point of law which led to this reduction was very largely concerned with the question as to whether a certain system of piping and oil tanks forming part of the premises was machinery within the valuation code.

7

The Commissioners of Valuation on the 3rd Ocotber 1984, that is to say, within three months of the date of the decision in the Circuit Court served a notice pursuant to Section 10 of the 1860 Act requiring the stating of a case by the learned Circuit Court Judge to the High Court.

8

That case had not been signed and stated by June 1987 and the Applicant then served Notice of Motion to prohibit its signing at that time. By order of the High Court made on the 18th June 1987 the Applicant was given liberty to apply for judicial review and a notice of motion to that effect was issued on the 26th June 1987.

9

The matter came on before Egan J. in the High Court and he reserved a decision on the case which he delivered on the 25th January 1988. From that decision the Applicant has appealed to this Court.

10

The Order made on the 25th January 1988 directed that the matter be remitted to the Circuit Court, there being before that Court an application by the Applicant to have a notice of application for a case stated by the second-named Respondent dismissed. No order was made in January 1988 in any way restraining the second-named Respondent from signing and transmitting the case stated.

11

Upon the appeal being entered in this Court application was made to seek to expedite the appeal by reason of the impending retirement from office of the second-named Respondent.

12

This Court was not in a position to hear and determine the appeal before that retirement took place and accordingly the situation now is as is agreed by the parties that the case stated has been signed and transmitted by the second-named Respondent prior to his retiral from office and that this appeal must be deemed to be an appeal seeking not an Order for prohibition as was sought in the High Court but rather an Order quashing the signing and transmission of the case stated.

13

The major issue which arose both in the High Court and in this Court is an assertion on behalf of the Applicant that having regard to the provisions of Section 10 of the Act of 1860 the failure of the second-named Respondent, namely, the learned Circuit Court Judge to sign and transmit to the Commissioner of Valuation a case stated within twenty-one days of having received from him the notice seeking the stating of such a case was fatal to the valid stating of a case and that there was no power to extend the time for such signing and transmission nor could the second-named Respondent outside that time of three weeks validly state a case.

14

Egan J. in the High Court reached the conclusion that upon the true construction of Section 10 of the 1860 Act that the provision of the time limit of twenty-one days from the notice requesting a case stated in which a Circuit Court Judge is expected to sign and transmit a case stated was a directory and not a mandatory provision and that non-compliance with it did not invalidate a case signed and stated subsequent to that period.

15

I am satisfied that that decision was correct in law.

16

Section 10 of the Act of 1860 was adapted, modified and amended by the provisions of sub-section (3) of Section 31 of the Courts of Justice Act...

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