Buckley v Kirby

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Geoghegan.
• Judgment Date: 18 July 2000
• Neutral Citation: [2000] IESC 18
• Docket Number: [S.C. No. 23 of 2000]
• Date: 18 July 2000

BUCKLEY v. JUDGE KIRBY & DPP

Between:

MICHAEL BUCKLEY

Applicant

and

JUDGE BRIAN KIRBY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

[2000] IESC 18

23/00

THE SUPREME COURT

Synopsis:

Administrative Law

Administrative; judicial review; alternative remedies; applicant convicted by respondent in District Court; applicant appeals High Court's refusal of leave to apply for judicial review; applicant also appealed conviction to Circuit Court; appeal to Circuit Court still pending; whether remedy by way of judicial review is appropriate; whether leave should be granted to apply for judicial review on the grounds that there was a lack of evidence to support a decision; whether is within the Court's discretion to refuse leave where a trivial point is raised and where the alleged unremedied procedural defect results in no substantial injustice and which should more appropriately be dealt with by a private law remedy.

Held: Appeal dismissed.

Buckley v. Judge Kirby - Supreme Court: Murphy J., McGuinness J., Geoghegan J. - 18/07/2000 - [2000] 3 IR 431 - [2001] 2 ILRM 395

The applicant had been convicted of larceny offences. The applicant appealed and also sought to judicially review the decision. The applicant's judicial review action was dismissed in the High Court and the applicant appealed. Geoghegan J, delivering judgment, held that it was wrong to grant judicial review merely on the grounds that there was a lack of evidence to support the trial judge's decision. The proper remedy in this instance was an appeal. The appeal would be dismissed.

Citations:

G V DPP 1994 1 IR 374

ROCHE, STATE V DELAP 1980 IR 170

MILLER, R V JUSTICES OF MONAGHAN 1906 40 ILTR 51

MCGOLDRICK V BORD PLEANALA 1997 1 IR 497

MARTIN, R V MAHONEY 1910 2 IR 695

BRADLEY JUDICIAL REVIEW 719

KILLEEN V DPP 1998 1 ILRM 1

DPP V KELLEHER UNREP SUPREME 24.6.2000

1 18th day of July, 2000 by Mr. Justice Geoghegan. [Nem diss]

2 This was an appeal against the refusal of leave to bring judicial review proceedings by the High Court ( Ó Caoimh J.) in an order of the 6th December, 1999. This court recently heard the appeal and affirmed the order of the High Court but the court indicated that it would give its reasons on a later date. The court decided to do this as the case provides a useful opportunity to reaffirm the limits and parameters of judicial review.

3 By a note of ruling dated the 6th December, 1999 Ó Caoimh J. gave his reasons for refusing leave and I think it important to refer to these as the ruling of the learned High Court judge correctly sets out the legal principles in every respect. The judge took as his starting point the decision of this court in G v. D.P.P. [1994] 1 IR 374and he went on to consider in the light of that case whether (a) an arguable case had been made out, (b) whether the Applicant had moved promptly and (c) whether there existed a more appropriate remedy.

4 The Applicant had been convicted in the District Court for the larceny of 31 ladies blouses. At the close of the prosecution case the solicitor for the Applicant applied to the judge who is the first-named Respondent for a dismissal of the charge on the grounds that the case had not been proved. The judge refused the application and went on to convict the Applicant.

5 There is nothing in the evidence to suggest that the judge abused his jurisdiction or was not acting within jurisdiction. In those circumstances, if the Applicant was aggrieved at the conviction which he was, quite clearly the proper remedy was an appeal to the Circuit Court. He in fact brought an appeal which has not yet been heard but went the route of judicial review also. The question of alternative remedies of appeal and judicial review has always presented problems. Four quite separate situations can arise.

6 (1) The Applicant both appeals to the Circuit Court and brings judicial review proceedings and at the stage of the judicial review the appeal has been fully or partly heard,

7 (2) The Applicant has brought an appeal and moved for judicial review in circumstances where either remedy would have been equally appropriate but where at the stage of the judicial review the appeal is still pending.

8 (3) The Applicant has both appealed and brought judicial review proceedings in circumstances where at the time of the judicial review hearing the appeal is still pending but where in all the circumstances appeal, rather than judicial review is clearly the more appropriate remedy.

9 (4) The Applicant has not brought an appeal at all but has gone the route of judicial review in circumstances where an appeal is much the more appropriate remedy though it would be open to a court to grant leave for judicial review.

10 The first of these situations is clearly covered by the decision of this court in The State (Roche) v. Delap [1980] IR 170. In that case the appeal had already been opened before the Circuit Court judge but he adjourned it for the purposes of a certiorari application. Henchy J. who delivered the judgment of the Supreme Court held that undoubtedly in the ordinary way the remedy of certiorari would have been available because the order was bad on its...