State (O'Rourke) v Kelly

JurisdictionIreland
Judgment Date01 January 1983
Date01 January 1983
Docket Number[S.C. No. 58 of 1979]
CourtSupreme Court
The State (O'Rourke) v. Kelly
The State (at the Prosecution of Martin O'Rourke)
and
James A. Kelly and The Attorney General
[S.C. No. 58 of 1979]

Supreme Court

Constitution - Statute - Validity - Administration of justice - Judicial function - Interference - Mandatory requirement that specified order be made in particular circumstances - Enactment valid - Housing Act, 1966 (No. 21), s. 62 - Constitution of Ireland, 1937, Articles 6, 34.

Section 62, sub-s. 1, of the Housing Act, 1966, authorises a housing authority to apply, in certain circumstances, to the District Court for a warrant authorising possession to be taken by the authority of a dwelling. Sub-section 3 of s. 62 directs that, upon the hearing of such application which has been "duly made," the District Justice shall issue the warrant if he is satisfied that the demand for possession mentioned in sub-s. 1 "has been duly made."

The first respondent, by a warrant issued by him pursuant to sub-s. 3 of s. 62, ordered the recovery by the Corporation of Dublin of possession of a dwelling occupied by the prosecutor. The prosecutor obtained in the High Court a conditional order of certiorari quashing the order of the first respondent, unless cause were shown to the contrary, on the ground that the order had been made contrary to the principles of natural justice. The High Court allowed the cause shown by the first respondent and discharged the conditional order. At the hearing of his appeal to the Supreme Court from the decision of the High Court, the prosecutor submitted that the provisions of sub-s. 3 of s. 62 were invalid, having regard to the provisions of the Constitution, because they constituted an interference with the function of the District Court in the administration of justice by depriving the District Justice of any real discretion in determining an application under sub-s. 1 of the said section.

Held by the Supreme Court, in disallowing the appeal, 1, that the mandatory issue by a District Justice of a warrant pursuant to s. 62, sub-s. 3, of the Act of 1966 is dependent upon proof of the circumstances specified in sub-s. 1 of that section.

2. That, accordingly, the Court rejected the prosecutor's submission that the section was invalid.

Cases mentioned in this report:—

1 Corporation of Dublin v. McDonnell (High Court: 3rd July, 1968).

2 The State (Healy) v. Donoghue [1976] I.R. 325.

3 The State (Crothers) v. Kelly (High Court: 2nd October, 1978).

4 East Donegal...

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