Attorney General v Open Door Counselling Ltd (No. 2)

JurisdictionIreland
CourtSupreme Court
JudgeFINLAY C.J.,DENHAM J.
Judgment Date01 January 1994
Neutral Citation1993 WJSC-SC 2976
Docket Number[S.C. No. 185 of 1987]
Date01 January 1994
SPUC v. OPEN DOOR COUNSELLING LTD

BETWEEN

THE ATTORNEY GENERAL AT THE RELATION OF THE SOCIETY FOR THEPROTECTION OF UNBORN CHILDREN (IRELAND) LIMITED (RELATOR)
Plaintiff/
Respondent

and

OPEN DOOR COUNSELLING LIMITED and DUBLIN WELLWOMAN CENTRELIMITED
Defendants/
Appellants

1993 WJSC-SC 2976

Finlay C.J.

Hederman J.

Egan J.

Blayney J.

Denham J.

185/87

THE SUPREME COURT

Synopsis:

SUPREME COURT

Jurisdiction

Order - Rescission - Application - Refusal - Injunction - Consti tution - Referendum - Amendment of Constitution - Law on which injunction based altered by amendment - Constitution of Ireland - 19 1937, Articles 34,40 - (185/87 - Supreme Court - 20/7/93)

|Attorney General v. Open Door Counselling Ltd|

ORDER

Rescission

Supreme Court - Jurisdiction - Appeal - Determination - Finality - Injunction - Constitution - Referendum - Amendment of Constitution - Law on which injunction based altered by amendment - (185/87 - Supreme Court - 20/7/93) - [1994] 1 ILRM 256

|Attorney General v. Open Door Counselling Ltd.|

Citations:

THIRTEENTH AMENDMENT TO THE CONSTITUTION BILL 1992

FOURTEENTH AMENDMENT TO THE CONSTITUTION BILL 1992

CONSTITUTION ART 40.3.3

RSC O.28 r11

BELVILLE HOLDINGS LTD V REVENUE COMMISSIONERS UNREP SUPREME 8.2.93 1993 ITR 528

SWIRE, IN RE 30 CH 239

CONSTITUTION ART 12(3)

COURTS OF JUSTICE ACT 1936 S38

CONSTITUTION ART 34.2

CONSTITUTION ART 34.3.1

CONSTITUTION ART 34.3.2

CONSTITUTION ART 34.4.1

CONSTITUTION ART 34.4.2

CONSTITUTION ART 34.4.3

CONSTITUTION ART 34.4.4

CONSTITUTION ART 34.4.6

BROWNE, STATE V FERAN 1967 IR 147

CONSTITUTION ART 12.3.1

MURPHY V AG 1982 IR 241

D (K) (ORSE C) V C (M) 1985 IR 697

QUINN, STATE V RYAN 1965 IR 70

MESKELL V CIE 1973 IR 121

EDUCATIONAL COMPANY OF IRELAND LTD V FITZPATRICK 1961 IR 345

MCGEE V AG 1974 IR 284

AINSWORTH V WILDING 1896 1 CH 673

CONSTITUTION ART 26

COURTS OF JUSTICE ACT 1947 S16

CONSTITUTION ART 40.3

CONSTITUTION ART 36

B V B 1975 IR 54

BYRNE V IRELAND 1972 IR 241

1

JUDGMENT delivered on the 20th day of July 1993by FINLAY C.J. (HEDERMAN EGAN BLAYNEY CONC)

2

This is a notice of motion brought by the second named Defendants in the above entitled proceedings seeking the following relief:

"1. An order discharging the Order of this Honourable Court dated the 16th March 1988 that the said Defendant/Appellant their servants or agents be perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise."

3

On the 27th April 1987, by order of the High Court made by Hamilton P. in the above entitled proceedings the Court did declare

"that the activities of the Defendants, their servants or agents in counselling pregnant women within the jurisdiction of this Court to travel abroad to obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction are unlawful having regard to the provisions of Article 40.3.3 of the Constitution ofIreland".

4

In addition, by the said order it was ordered

"that the Defendants and each of them their servants or agents be perpetually restrained from counselling or assisting pregnant women within the jurisdiction of this Court to obtain further advice on abortion or to obtain an abortion."

5

Against that order the Defendants, including these Applicants, appealed, and by order of this Court made on the 16th March 1988 that appeal wasdismissed.

6

By that order this Court varied the order made in the High Court

7

2 "1. By substituting the following Declaration for the Declaration therein:

8

"The Court doth Declare that the activities of the Defendants, their servants or agents in assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making of their travel arrangements or by informing them of the identity and location of and method of communication with a specified clinic or clinics are unlawful having regard to the provisions of Article 40.3.3 of the Constitution"

9

and

10

(2) By substituting the following order for the injunctiontherein:

11

"And it is ordered that the Defendants and each of them their and each of their servants or agents be perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making for them of travel abroad to obtain abortions by referral to a clinic, by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise." "

12

The notice of motion now before the Court was grounded on an affidavit filed on behalf of the second named Defendants by their Chief Executive and Director. No similar motion was brought by the first named Defendants before this Court, but they attended on the hearing of this application and stated without objection by or on behalf of the Plaintiffs that they supported the application being made and would be seeking a similar remedy themselves.

13

This application is based upon the terms of the Amendments of the Constitution duly enacted pursuant to the referendum had in accordance with the provisions of the Constitution to consider the proposals contained in the Thirteenth and Fourteenth Amendment of the Constitution Bills 1992 1992.

14

These two amendments add to the provisions of Article 40.3.3 of the Constitution as enacted at the time of the order made in 1988, the following clauses:

"This subsection shall not limit freedom to travel between the State and another State.

This subsection shall not limit freedom to obtain or make available in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in anotherState."

15

Whilst the motion as brought simply sought as relief the discharge of the entire of the injunctive order made by this Court on the 16th March 1988, counsel for the Applicant in the alternative, upon the hearingof the motion submitted that it might be appropriate for variations to be made in the injunction.

16

The motion which was brought was opposed on behalf of the Society for the Protection of Unborn Children (Ireland) Limited, the relators in theaction.

17

The first issue which, I am satisfied, arises in this case is as to whether there is any jurisdiction in this Court to discharge part of, or to vary any part of, the order made by it on the 16th March 1988.

18

It is quite clear on the terms of the order then made that it was a final determination of the appeal brought to the Court in these proceedings, and it did not contain any liberty to any party to apply in respect of any matter contained in the order. The question of the common law principles applicable to the power of a court to vary or amend a final order made by it otherwise than under the "slip rule" contained in order 28 rule 11 of the Superior Court Rules was recently dealt with in a judgment delivered by me in this Court,in the case of Belville Holdings Limited v. The RevenueCommissioners, delivered the 8th February 1993 (unreported) with which the other members of the Court agreed. In that judgment I stated as follows, at p.15:

"The position and principles appear, however, to be accurately stated in the judgment of Romer J. in Ainsworth v. Wildingreported in 1896 1 Ch. at 673 where, at p.677 he stated as follows:"

19

"So far as I am aware, the only cases in which the Court can interfere after the passing and entering of the judgment are these:

20

(1) Where there has been an accidental slip in the judgment as drawn up, in which case the Court has power to rectify it under order 28 rule11;

21

(2) When the Court itself finds that the judgment as drawn up does not correctly state what the Court actually decided andintended."

22

Having referred to the decision of the Court of Appeal in In ReSwire 30 Ch.Div. 239, Romer J. quoted from the judgments in that case as follows:

23

"Cotton LJ says:

"It is only in special circumstances that the Court will interfere with an order which has been passed and entered, except in cases of a mere slip or verbal inaccuracy, yet, in my opinion the Court has jurisdiction over its own records and if it finds that the order as passed and entered contains an adjudication upon that which the Court in fact has never adjudicated upon, then, in my opinion it has jurisdiction which it will in a proper case exercise to correct its record that it may be in accordance with the order really pronounced."

24

Lindley LJ says:

"If it is once made out that the order, whether passed and entered or not, does not express the order actually made, the Court has ample jurisdiction to set that right, whether it arises from a clerical slip or not."

25

And Bowen LJ says:

"An order as it seems to me, even when passed and entered may be amended by the Court so as to carry out the intention and express the meaning of the Court at the time when the order was made, provided the amendment be made without injustice or on terms which preclude injustice." "

26

I am satisfied that these expressions of opinion validly represent what the true common law principle is concerning this question. I would emphasise, however, that it is only in special or unusual circumstances that an amendment of an order passed and perfected, where the order is of a final nature, should be made by the Court. The finality of proceedings both at the level of trial and, possibly more particularly at the level of ultimate appeal is of fundamental importance to the certainty of the administration of law and should not lightly bebreached."

27

To this principle so stated, exceptions may occur in cases where it is established to a court that a...

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