Thompson v Curry

• Jurisdiction: Ireland
• Judgment Date: 01 January 1970
• Date: 01 January 1970
• Docket Number: [1963. No. 8 SS.]
• Court: Supreme Court

Thompson v. Curry

MARTIN THOMPSON

Complainant

and

MICHAEL CURRY

Defendant.

Thompson v. Curry

Attorney General

and

Shivnan

[1963. No. 8 SS.]

[1964. No. 48 SS.]

Supreme Court

Practice - Procedure - Case stated - Statutory condition precedent - Condition not satisfied - Rule of court in conflict with statute - Whether rule of courtultra vires - Whether High Court had jurisdiction to determine case stated - Rules of the Superior Courts, 1962 (S.I. No. 72 of 1962), Or. 62, r. 5 - Summary Jurisdiction Act, 1857 (20 & 21 Vict. c. 43), s. 2 - Courts of Justice Act, 1924 (No. 10 of 1924), ss. 36, 86, 91.

Section 2 of the Summary Jurisdiction Act, 1857, provides that a Case, which has been stated by a District Justice for the opinion of the High Court pursuant to that section, shall be transmitted to the High Court by the appellant and that he shall give notice of his appeal to the respondent before transmitting the Case to the High Court. On the 7th February, 1963, the complainant transmitted to the High Court a Case so stated and afterwards he gave notice of his appeal, which sequence was then apparently authorised by the terms of Order 62, r. 5, of the Rules of the Superior Courts. At the hearing of the Case in the High Court it was

Held by Davitt P. that the High Court had no jurisdiction in the matter as the complainant had not complied with the procedure required by the Act of 1857.

On appeal by the complainant it was

Held by the Supreme Court (Lavery, Haugh and Walsh JJ.), in disallowing the appeal, 1, that under s. 36 of the Courts of Justice Act, 1924, it was a function of the Superior Courts Rules Committee to make any rules of court required for dealing with matters subsequent to the receipt1 by an appellant of a Case which has been stated by the District Court, pursuant to s. 2 of the Act of 1857, for the opinion of the High Court; and that such matters were excluded by s. 91 of the Act of 1924 from the functions of the rule-making authority of the District Court.

2. That the observance of the sequence of events required by s. 2 of the Act of 1857 was a condition precedent to the exercise by the High Court of its jurisdiction, and that the terms of Order 62, r. 5, were ultra vires the Superior Courts Rules Committee in so far as those terms purported to alter the sequence of events required by s. 2 of the Act of 1857.

Attorney General v. Healy [1928] I.R. 460 not applied.

The State (O'Flaherty) v. O Floinn [1954] I.R. 295 considered.

Case Stated.

On the 4th February, 1963, District Justice Kenneth Reddin, on the application of the complainant, stated and signed a Case for the opinion of the High Court pursuant to s. 2 of the Summary Jurisdiction Act, 1857 (as amended) and the complainant received the Case on the same day. On the 7th February the complainant transmitted the Case to the Central Office of the High Court and on the 9th February he gave the defendant notice of the appeal by Case Stated. Section 2 of the Act of 1857 provides that, where a Case is so stated, the appellant "shall, within three days after receiving such Case, transmit the same to the court named in his application, first giving notice in writing of such appeal, with a copy of the Case so stated and signed, to the other

party to the proceeding . . ." Rule 201 of the District Court Rules, 1948 (S.R. & O. 1947 No. 431) retains the sequence of events enacted by s. 2 of the Act of 1857 but purports to allow 14 days for the transmission of a Case to the High Court. Order 62, r. 1, of the Rules of the Superior Courts, 1962 (which came into operation on the 1st January, 1963 provides that:—"Every case stated by a Justice of the District Court under the Summary Jurisdiction Act, 1857 (20 & 21 Vic. c. 43) shall be transmitted to the Central Office by the party requesting the case within three days after receiving such case." Order 62, r. 5, of the Rules of 1962 provided that:—"Immediately before or within three days after transmitting the case to the Central Office, the person transmitting the same shall give notice thereof to every other party to the proceedings in or in relation to which the case is stated." The words"or within three days after" in Order 62, r. 5, were deleted by the Rules of the Superior Courts (No. 2), 1966—S.I. No. 169 of 1966—following the judgments which are the subject matter of this report.

Section 36 of the Courts of Justice Act, 1924 (as amended) provides (inter alia) that the Superior Courts Rules Committee with the concurrence of the Minister for Justice may make rules of court"for carrying Part 1 of this Act into effect (including the hearing of appeals from the Circuit Court and cases stated by the District Court) and may annul or alter the said rules and make new rules . . ." Section 91 of the Act of 1924 (as amended) provides that the District Court Rules Committee may make rules"for carrying into effect this Part [Part 3] of this Act (except the hearing by the Circuit Court of appeals from the District Court and the hearing by the High Court of cases stated by the District Court), and may...