Siroko v Murphy

• Jurisdiction: Ireland
• Judgment Date: 01 January 1955
• Date: 01 January 1955
• Court: Supreme Court

Siroko v. Murphy

JACK SIROKO

Plaintiff

and

MARTIN MURPHY, Defendant (1)

Supreme Court.

Practice - Bankruptcy of sole plaintiff - Action coming on for trial - Action not continued by Official Assignee - Official Assignee not before the Court - Application for adjournment refused by Court - Action dismissed with costs- Rules of the Supreme Court (Ir.) 1905, Or. XVII, r. 4; Or. XXXVI,r. 29.

After notice of trial had been served in an action in the High Court, but before the action came on for trial, the plaintiff became a bankrupt. Several adjournments were obtained by the plaintiff to enable him, inter alia, to ascertain whether the Official Assignee desired to continue the action. The Official Assignee intimated that he did not desire to do so, and when the action came on for hearing before the President of the High Court, the Official Assignee was not represented. The plaintiff informed the Court that he was not then in a position to proceed and the action was dismissed with costs.

On an appeal by the plaintiff to the Supreme Court it was

Held by the Supreme Court (Maguire C.J., Lavery, Kingsmill Moore, O'Daly and Maguire JJ.) that the plaintiff ought not to have been ordered to pay costs.

Per curiam: Quaere whether the defendant would have been entitled to his costs, if he had taken steps formally to bring the Official Assignee before the Court.

Appeal from the High Court.

On the 29th August, 1952, the plaintiff, Jack Siroko, issued a civil bill in the Circuit Court against the defendant, Martin Murphy, for damages for breach of conditions in the sale of linseed oil, and, in the alternative, for damages for negligence. The plaintiff was a furniture manufacturer, the defendant a wholesale and manufacturing chemist, and the linseed oil was sold by the defendant to the plaintiff in the course of their respective businesses. Subsequent to the sale of the linseed oil, an employee of the plaintiff contracted dermatitis and in the civil bill it was alleged that this arose from use by the employee of the linseed oil. The bulk of the plaintiff's claim comprised the amount of compensation paid under the provisions of the Workmen's Compensation Acts to his employee in respect of her dermatitis.

The action came on for hearing on the 11th May, 1953, when the defendant obtained an adjournment, upon the terms of paying the costs of the day, upon the ground that an essential witness was not available. The action was re-listed for the 1st July, 1953. Before that date it became clear that as the incapacity of the plaintiff's employee was continuing the claim would exceed the jurisdiction of the Circuit Court. Consequently, on the 1st July, 1953, a

successful application was made to have the proceedings transferred to the High Court.

The proceedings were adopted in the High Court, and came into the list of the President of the High Court in Trinity Term, 1953, when an application was made by the plaintiff to have the case heard that term. The defendant again sought an adjournment on the ground that his essential witness was still not available. The President allowed the application and the hearing was fixed...