Burke v District Judge Martin & DPP

JurisdictionIreland
JudgeMs. Justice Irvine
Judgment Date23 November 2010
Neutral Citation[2010] IEHC 450
Docket Number[No. 379 J.R./2010]
CourtHigh Court
Date23 November 2010

[2010] IEHC 450

THE HIGH COURT

[No. 379 J.R./2010]
Burke v District Judge Martin & DPP
JUDICIAL REVIEW

BETWEEN

JOHN BURKE
APPLICANT

AND

DISTRICT JUDGE MARY MARTIN AND DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

BURKE v JUDGE MARTIN & DPP UNREP EDWARDS 9.10.2009 2009/6/1385 2009 IEHC 441

BURKE v MIN FOR AGRICULTURE & ORS UNREP EDWARDS 24.11.2008 (EX TEMPORE)

ADAMS v DPP & ORS 2001 2 ILRM 401 2000/1/52

RSC O.19 r28

BURKE v JUDGE FULHAM & DPP UNREP IRVINE 23.11.2010 2010 IEHC 448

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) REGS 2000 SI 127/2000

SAVAGE & ORS APPLICATIONS, IN RE 1991 NI 103

JUDICIAL REVIEW

Leave

Set aside - Ex parte application - Obligations on applicant - Jurisdiction of court to interfere with ex parte order - Jurisdiction to bring motion to set aside - Whether applicant made full disclosure of all material facts at ex parte application - Whether refusal to direct stenographer attend at hearing breach of fair procedures - Whether first respondent entitled to fix matters to be heard by another judge - Whether exceptional circumstances existed to set aside order - Application to commit certain parties - Whether lawful basis for application to commit - Burke v Minister for Agriculture, Fisheries and Food (Unrep, Edwards J, 24/11/2008) considered; Burke v Martin [2009] IEHC 441, (Unrep, Edwards J, 9/10/2010); Adams v DPP (Unrep, Kelly J, 12/4/2000); Burke v Fulham [2010] IEHC 448 (Unrep, Irvine J, 23/11/2010); Re Savage's Application [1991] NI 103 approved; Rules of the Superior Courts 1986 (SI 15/1986), O 19, r 28 - European Communities (Protection of Animals Kept for Farming Purposes) Regulations 2000 (SI 127/2000) - Application to set aside granted; motion for committal struck out (2010/379JR - Irvine J - 23/11/2010) [2010] IEHC 450

Burke v Judge Martin

Facts The second named respondent herein sought to set aside an order of the High Court made by Peart J. on 7 May 2010, whereby he granted leave to the applicant to apply for judicial review in respect of certain orders made by the first named respondent when dealing with a significant number of summonses concerning the applicant. The applicant brought a motion seeking to commit the State Solicitor for the county of Tipperary and the defendants for alleged contempt of court arising from the issue of the aforementioned motion to set aside the order of Peart J. The applicant had previously applied for leave to seek by way of judicial review an order prohibiting the summonses being heard on the hearing date set by the first named respondent. That application was refused by Edwards J. on 24 September 2009. That refusal was under appeal to the Supreme Court. However, the applicant did not apply to the Supreme Court to stay the hearing of the summonses pending the outcome of that appeal. Five of the 121 summonses were dealt with on the aforementioned hearing date and those decisions were challenged in other judicial review proceedings. The remaining summonses came before the first named respondent on 24 March 2010 and arising out of that court proceeding the applicant obtained leave to seek an order prohibiting the hearing of those summonses unless a stenographer was provided by way of legal aid. The applicant also obtained leave to seek an order of certiorari quashing the order of the first named respondent made on 24/03/10 setting certain hearing dates for the said summonses. The applicant also obtained leave to apply for a further order prohibiting the further hearing of the matters until such time as an appeal against the refusal by Edwards J. of leave was determined on appeal by the Supreme Court. As part of the order made by Peart J. granting leave, the order was to act as a stay on the further hearing of the summonses pending the final determination of the appeal to the Supreme Court. The second named respondent's application to set aside the order of Peart J. was made on the basis that the proceedings were oppressive, vexatious or amounted to an abuse of the process of the courts. Alternatively the court was urged to set aside the order on the basis of the alleged failure of the application to make a full and frank disclosure of all the material facts at the time he made the ex parte application for leave. In particular it was alleged that the applicant failed to advise the court that the applicant had been told a stenographer would be provided for the hearing of the summonses and furthermore that the court was not advised of the full facts in relation to the two earlier sets of proceedings both of which concerned the same summonses against the applicant. In the earlier set of proceedings referred to, the Supreme Court had refused to grant the applicant a stay on the District Court proceedings. The applicant denied receiving the letter regarding the provision of the stenographer and also denied that he did not make full and frank disclosure to Peart J.

Held by Irvine J. in granting the respondent's application: That any party who makes and ex parte application must act with the utmost good faith and must make a full disclosure of all material which might impact upon the judge's consideration of the matter. However, orders setting aside leave which was granted ex parte are only made in exceptional circumstances. The applicant previously sought to assert his legal right to be supplied with a stenographer and that application was refused. Having regard to that previous application and the fact that an undertaking has been given to supply a stenographer for the District Court hearing, it would be a manifest abuse of the process of the court to permit the part of the relief granted by Peart J. in relation to the stenographer to stand. Furthermore, full and frank disclosure was not made to Peart J. because if it had been he simply could not and would not have considering granting leave to the applicant to apply for judicial review prohibiting the hearing by the District Court of the summonses and he would not have granted him the stay which was referred to in the order. Having regard to all the facts there was no substance to the applicant's claim and furthermore exceptional circumstances existed justifying the setting aside of the order of Peart J. in its entirety. Consequently, the applicant's motion for committal struck out.

Reporter: L.O'S.

Ms. Justice Irvine
1

This judgment relates to two applications which came before this Court for hearing on 19th October, 2010. The first application is one brought by the second named respondent seeking to set aside an order of the High Court made by Peart J. on 7th May, 2010, whereby he granted leave to the applicant to apply for judicial review in respect of certain orders made by the District Judge ("the District Judge") on 24th March, 2010, when dealing with a significant number of summonses concerning the applicant which had been issued by the Minister for Agriculture, Fisheries and Food. The second application is motion brought by the applicant seeking to commit the State Solicitor for the county of Tipperary, Mr. Paul Fitzpatrick and "the defendants" for alleged contempt of court arising from the issue of the motion to set aside the order of Peart J. of 24th March, 2010.

2

In circumstances where it would be difficult to understand the order made by Peart J. on 7th May, 2010, otherwise than by reference to the background to the aforementioned summonses, I now propose to set out very briefly the historical background to these judicial review proceedings.

3

The applicant describes himself as a cattle man and stock owner and resides at Duncumin House, Emly, Co. Tipperary. By May 2009, approximately 121 summonses issued against the applicant were pending before the District Court in Tipperary. With the exception of one summons relating to a charge of criminal damage to a motor vehicle, the remaining summonses concern issues of animal welfare. On 6th May, 2009, the District Judge provisionally fixed all of these cases for hearing on 30th September, 2009 and the following days. She then adjourned the cases for mention on 3rd June, 2009. This she did to permit the applicant make an argument on that date that the proceedings should not be heard on the dates fixed due to the fact that certain judicial review proceedings were pending in the High Court.

4

On 3rd June 2009, the District Judge, having heard all arguments put before her, resolved that the matters should proceed on the dates allocated.

5

On 11th September, 2009, the applicant sought leave to apply for judicial review to prohibit the summonses being heard commencing on 30th September, 2009. McMenamin J. directed the applicant to place the respondents on notice of his intended application and the proceedings were then dealt with by Edwards J. on 24th September, 2009. He refused the application for the reasons referred to in a lengthy judgment delivered by him on 9th October, 2009. That decision is presently under appeal to the Supreme Court. It is not disputed by the applicant that he did not apply to the Supreme Court to stay the hearing of the 121 summonses pending the outcome of that appeal. As a result of the applicant's failure to obtain leave to apply for judicial review from Edward's J., a number of the 121 summonses were dealt with by District Judge Hamill commencing 30th September, 2009. He only managed to hear five out of the said summonses over the three days which had been allocated to the cases and a number of these decisions are presently under challenge in other judicial review proceedings. There are accordingly some 116 summonses which remain to be dealt with by the District Court.

6

On 24th March, 2010, the District Judge herein fixed 18th, 19th and 20th May, 2010, as the appropriate dates for the hearing of the remaining summonses. All of the charges which...

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