The State (O'Shea) v Minister for Defence

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1947
• Date: 01 January 1947

The State (O'Shea) v. Minister for Defence

THE STATE (at the Prosecution of CORNELIUS O'SHEA)

and

THE MINISTER FOR DEFENCE,and IN THE MATTER OF THE COURTS OF JUSTICE ACT

1924.

Supreme Court

Pension - Military Service - Claim for pension - Investigation of claim by Referee under Military Service Pensions Act, 1934 (No. 43 of 1934) -Referee's failure to "sit wish" Advisors Committee - Investigation irregular on this particular ground - Order of certiorari granted and made absolute - Military Service Pensions (Amendment) Act, 1945 (No. 11 of 1945) -Particular irregularity authorised and rendered valid retrospectively - Minister permitted to appeal within 28 days of passing of Act from any order of certiorari made absolute between 1st February, 1945 and date of passing of Act - Minister appealing within prescribed time - Cause shown allowed and conditional order of certiorari discharged.

Following the decision of the Supreme Court in The State (McCarthy)v. O'Donnell, [1945] I. R. 126, and relying upon the grounds on which that decision was based, the prosecutor applied for and obtained an order ofcertiorari directed to the Minister for Defence to send before the High Court for the purpose of being quashed a report made by the Referee under the Military Service Pensions Act, 1934, in relation to the prosecutor's application for a pension.

Sect. 2 of the Military Service Pensions (Amendment) Act, 1945, amends the Military Service Pensions Act, 1934, by rendering valid the procedure adopted by the Referee in The State (McCarthy) v. O'Donnell, [1945] I. R. 126,and in the present case, and s. 2, sub-s. 8 prescribes that the earlier provisions of the section shall be deemed to have come into operation and shall have effect as on and from the 13th day of September, 1934.

Sect. 3 of the Military Service Pensions (Amendment) Act, 1945, prescribes that where a prosecutor has applied for, and obtained an order of certioraridirecting the Minister for Defence to send before the High Court for the purpose of being quashed a report of the Referee on an application for a service certificate, and the conditional order has been made absolute by an order of the High Court, made at any time during the period commencing on the 1st February 1945, and ending on the date of passing of the Act, the Minister may appeal to the Supreme Court within 28 days after the date of passing of the Act.

The Military Service Pensions (Amendment) Act, 1945, was passed on the 29th March, 1945. The order making absolute the prosecutor's conditional order of certiorari was made on the 26th March, 1945. The...