The State (Minister for Local Government) ) v Judge Sealy

JurisdictionIreland
Judgment Date20 December 1939
Date20 December 1939
CourtHigh Court

High Court.

The State (The Minister for Lands and Fisheries) v. Judge Sealy.
THE STATE (at the prosecution of THE MINISTER FOR LANDS AND FISHERIES)
and
HIS HONOR JUDGE SEALY (1)

Practice - Costs - Appeal from the District Court - Conviction by the District Justice under Sea Fisheries Protection Act, 1933 - Jurisdiction of Circuit Court to award costs of appeal - Only costs of prosecution provided for in Act - "Expressio unius est exclusio alterius" - Whether limitation of costs under s. 24, sub-s. 6 of the Petty Sessions (Ir.) Act, 1851, applicable - Rules of the Circuit Court, Or. XL, rr. 1 and 27 - Sea Fisheries Protection Act, 1933 (No. 53 of 1933), s. 9 - Petty Sessions (Ir,) Act. 1851 (14 & 15Vict. c. 93), ss. 22, 24.

Certiorari.

The Minister for Lands and Fisheries obtained a conditional order of certiorari, dated the 5th day of May, 1938, directed to the Circuit Court Judge of the Southern Circuit, Judge Sealy, to bring before the High Court for the purpose of being quashed, an order of the said Circuit Court Judge made at a sitting of the Circuit Court, held at Waterford

on the 8th day of February, 1938, on the hearing of an appeal from the conviction by the District Justice of District No. 23, District Court Area of Waterford, on a summons or complaint entitled "The Minister for Lands and Fisheries v. William Thomas Pike."

The conditional order was obtained on the affidavit of Edward Arthur Ryan, solicitor for the said Minister, the material paragraphs of which were as follows:—

"1. I am state Solicitor for the County of Waterford, and, as such, acted and appeared for the Minister for Lands and Fisheries on the hearing of a complaint, dated 29th September, 1937, by the said Minister against William Thomas Pike, that the said William Thomas Pike on 29th September, 1937, off the coast of the County Wexford, being the Master of the steam trawler, "Blanche," H. 928, which is not a Saorstát Éireann éireann sea-fishing boat, did, with said trawler, enter the exclusive fishing limits of Saorstát Éireann éireann for an unlawful purpose, to wit, for the purpose of sea fishing contrary to s. 3 of the Sea Fisheries Protection Act, 1933.

2. The said complaint was heard on 29th September, 1937, by the District Justice of District No. 23, District Court Area of Waterford, sitting at Waterford, when the said District Justice convicted the said William Thomas Pike of the said offence and ordered him to pay for fine the sum of £50, together with £5 5s. costs, and also ordered the forfeiture of the fish and fishing gear then and there found on said trawler, "Blanche," and directed that said fine and costs be paid within twenty-four hours from 9 p.m. on that date, and required Sea Fishery Protection Officer, Patrick Duane, of the Fishery Cruiser, "Muirchu," to detain said trawler at the Port of Waterford until said fine and costs were paid, and in default of payment of said fine and costs within said time ordered said fine and costs to be recovered by distress and sale of the said trawler, "Blanche,"H. 928, unless the said sums were sooner paid (Sea Fisheries Protection Act, 1933, ss. 3, 9 and 13).

3. The said William Pike appealed by notice, dated 30th September, 1937, to the circuit Court from said conviction.

4. The said appeal came on for hearing at Waterford before the circuit Court Judge for Circuit No. 8 (Judge Sealy) on 9th November, 1937. Counsel appeared on behalf of the appellant, and I appeared for the Minister. After hearing evidence the Judge allowed the appeal with costs and expenses on the ground that there was no evidence that the said trawler was not a Saorstát Éireann éireann sea fishing boat, and he directed the costs and expenses in both Courts to be taxed by the County Registrar. The question of the power of the circuit Court Judge to direct such taxation was, I am informed and believe, mentioned to the Circuit Court Judge a few days later by counsel for the appellant, who asked him to adjourn the case to the next Circuit Court sessions in order that the Judge might himself fix the costs and expenses. The Judge acceded to this request. I only heard of this matter indirectly a considerable time later.

5. On 11th December, 1937, I received from Messrs. M. J. O'Connor & Co., solicitors for the appellant, a draft of their claim for costs and expenses, and on 5th January, 1938, I wrote stating that I could not agree to any adjustment or settlement of the matter, and that it would be for the Judge to fix according to law such costs and expenses as might be allowed.

6. The case was again listed at Waterford before the Circuit Court Judge on 8th February, 1938, when counsel appeared for the appellant, and I appeared for the Minister. An application was made on behalf of the appellant to refer the matter to the County Registrar and that it should then come again before the Court to be finally dealt with. I opposed this course and requested the circuit Court Judge to deal with the matter himself. I then argued that, on an appeal in a criminal matter, such as the present, from the District Court, the circuit Court Judge had no power to award any greater sum than 40s. costs by virtue of the provisions of s. 24, sub-s. 6, of the Petty Session (Ir.) Act, 1851 (1). After argument, the Circuit Court Judge held against my contention and proceeded to consider the claim for costs and expenses. After I had contested most of the

items, the Circuit Court Judge stated, without particularising items, that he would allow a lump sum of £78."

The defendant in the summons, William Thomas Pike, now moved to discharge the said conditional order.

Sect. 9 of the Sea Fisheries Protection Act, 1933, provides:—"Where a person is convicted of an offence under any section of this Act, the Court by whom such person is convicted may order him to pay the costs of the prosecution."

P. was convicted in the District Court, at the prosecution of the Minister for Lands and Fisheries, of an offence under this Act. From this conviction he appealed to the Circuit Court. The Circuit Court Judge allowed the appeal, and awarded P. £78 for costs and expenses. The Minister obtained a conditional order of certiorari to quash the order of the Circuit Court Judge on the grounds that he had no power to award costs and expenses on the hearing of the said appeal, gave to the prosecution, by virtue of s. 9 of the Sea Fisheries Protection Act, 1933; alternatively, that he had no power to award a greater sum for costs and expenses than 40s. on the hearing of the said appeal, as provided by s. 24, sub-s. 6 of the Petty Sessions (Ir.) Act, 1851. On a motion to discharge the conditional order:

Held that the fact that s. 9 of the Sea Fisheries Protection Act, 1933, made provision only for the costs of the prosecution did not, on the principle,"expressio unius est exclusio alterius," deprive the Circuit Court Judge of any power which he might otherwise possess to award costs to a party who successfully appealed from a conviction of the District Court under that Act.

Held, also, that the appeal having been taken in accordance with the procedure laid down by rr. 161 to 166 of the District Court Rules, and not in accordance with that of s. 24 of the Petty Sessions (Ir.) Act, 1851, the costs that could be awarded on appeal were not limited to the sum of 40s. prescribed by the latter Act, but were within the absolute discretion of the Circuit Court Judge as costs not "otherwise prescribed by statute or by these Rules,"within the meaning of Or. XL, r. 1 of the Rules of the Circuit Court.

Accordingly, the conditional order must be discharged.

Semble, per Hanna J. that the effect of this decision is that a Circuit Court Judge can exercise his discretion to give any costs in any criminal proceeding in his Court.

Cur. adv. vult.

O'Byrne J.:

Mr. Justice Hanna, who is unable to be present to-day, has asked me to read his judgment. It is as follows:—

Hanna J. :—

The question in this case is whether, on reversing a conviction of the District Justice under the Sea Fisheries Protection Act, 1933 (No. 53 of 1933), the...

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