C.C v Judge William Early and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 28 April 2006
• Neutral Citation: [2006] IEHC 147
• Court: High Court
• Docket Number: [No. 529 JR/2004]
• Date: 28 April 2006

[2006] IEHC 147

THE HIGH COURT

[No. 529 JR/2004]

C (C) v JUDGE EARLY & ORS

JUDICIAL REVIEW

BETWEEN

C.C.

APPLICANT

AND

JUDGE WILLIAM EARLY JUDGE JOSEPH MANGAN DIRECTOR OF PUBLIC PROSECUTIONS IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

T.C.

NOTICE PARTY

DOMESTIC VIOLENCE ACT 1996 S5

DOMESTIC VIOLENCE ACT 1996 S17(1)

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2

COURTS ACT 1971 S14

MISCELLANEOUS PROVISIONS ACT 1997 S20(v)

BARRY v DISTRICT COURT JUDGE FITZPATRICK & DPP 1996 1 ILRM 512

Q (M) v JUDGE OF NORTHERN CIRCUIT & DPP UNREP MCKECHNIE J 14.11.2003 2003/44/10828

RSC O.84 r21

O'DONNELL v DUN LAOGHAIRE CORPORATION (NO2) 1991 ILRM 301 1991 ILT 12

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33

DEKRA EIREANN TEORANTA v MIN FOR ENVIRONMENT & SGS (IRL) LTD 2003 2 IR 270 2003 2 ILRM 210

DOMESTIC VIOLENCE ACT 1996 S3(6)

DOMESTIC VIOLENCE ACT 1996 S13(1)

DOMESTIC VIOLENCE ACT 1996 S16

DCR O.59 r9

DCR O.59 r12(1)

DOMESTIC VIOLENCE ACT 1996 S2(b)

BRENNAN v WINDLE & ORS 2003 3 IR 494

DOMESTIC VIOLENCE ACT 1996 S2(2)

K (D) v CROWLEY & ORS 2002 2 IR 744

JUDICIAL REVIEW

Relief

Discretion - Moot - Delay - Impugned order expired - Whether any benefit to be gained -Inordinate and unexcused delay - Whether good reason for extending time - Barring order - Collateral attack on family law orders- Barry v District Judge Fitzpatrick [1996] 1ILRM 512 and Q(M) v Judge of Northern Circuit (Unrep, McKechnie J, 14/11/2003)applied - DK v Judge Timothy Crowley [2002] 2 IR 744 considered - Relief refused(2004/529JR - MacMenamin J - 28/4/2006) [2006] IEHC 147 C(C) v Judge Early

The applicant sought by way of judicial review an order of certiorari quashing an order made by the second named respondent, granting a barring order to the notice party against the applicant. The respondent opposed the application on the basis of the applicant’s gross and inordinate delay in seeking judicial review.

Held by MacMenamin J. in refusing the application: That the applicant failed to comply with the time limits laid down under Order 84 Rule 21 RSC and he further failed to establish any good or sufficient reason for extending those time limits. Furthermore, the applicant’s conduct amounted to a surrender, waiver or abandonment his constitutional rights and his rights to natural justice.

Reporter: L.O’S.

1 This judgment is circulated in a redacted form to avoid identification of parties.

Mr. Justice John MacMenamin

2 1. The applicant is presently in receipt of disability benefit but is described in the statement to ground the application for judicial review as being an author, photographer and artist.

3 He seeks judicial review by way of certiorari quashing an order made by the second named respondent sitting in the Dublin Metropolitan District Court on the 1st February, 2001, granting a barring order to the Notice Party T.C. with whom the applicant then had a relationship. The grounds upon which this relief was granted were:

4 1. The applicant was never notified of the making of the protection order made on the 11th December, 2000, nor of any intention on the part of the Notice Party to seek a barring order against him and

5 2. The hearing before the second named respondent breached the rule of audi alterem partem and was in breach of the applicant's rights to natural and constitutional justice.

6 2. The applicant says he entered into a relationship with the notice party herein approximately twelve years ago. There are two children of this relationship namely T. now aged nine years and C. aged seven years. Originally the applicant and the notice party lived at address A. In or about 1997 he moved to address B as a tenant of Dublin Corporation. He says that Dublin Corporation (as it then was) "persuaded him" to have T.C. as a co-tenant. Thereafter differences occurred between himself and T.C.

7 3. In his first affidavit sworn herein, the applicant states that for a time in the month of December 2000 he was detained in Cloverhill Prison. He states that T.C. sought and obtained a protection order against him while in prison. The order was made by Judge William Early the first named Respondent. The applicant states that he was not served with this order and that the order appears to suggest on its face that he was living at address B at the time. He said that at the time, T.C. knew of his true whereabouts. This protection order was applied for and granted on 11th December, 2000, on foot of an information pursuant to section 5 of the Domestic Violence Act 1996 and a summons for a safety order was made returnable for the 31st January 2001. A certificate of imprisonment exhibited shows that the applicant was conveyed to Cloverhill Prison on 11th December, 2000, but released on 15th of that month.

8 4. While in the application for leave the applicant sought to impugn the protection order, leave was not granted therefor. After the applicant had left Cloverhill he went to a detoxification centre in Munster for treatment for what he says were "medical problems". He remained there from 15th December to 24th December, 2000. He says that T.C. knew that he was resident there. By order of the District Court T.C. obtained a barring order for three years duration against the applicant on 1st February, 2000. The applicant says he was never served with any summons or notification of this proposed hearing and that the order was granted in his absence. This impugned order was directed to the applicant at an address in Munster. An affidavit sworn herein on 19th June, 2004, the applicant states that he only commenced to reside at that address "some time after the date of the barring order". He believes that T.C. obtained his address from the gardaí.

9 5. The applicant states that he did not understand the purport of the document addressed to him at the address in Munster and in particular that he did not understand that he was prevented from entering the premises at Address B, which was his home. He says that he has not had the benefit of much formal education. This latter contention should be seen in the light of the averments of Garda E.L. of Stepaside Garda Station who says that he had a number of dealings with the applicant over the past several years, that he is an intelligent and capable person who has actually had a book of poetry published. Garda L. he believes the applicant is a person capable of understanding the content of a barring order and also able to obtain the services of a solicitor when he wished to do so.

10 6. More directly to the applicant's contentions, Garda L. in a replying affidavit sworn on 5th December, 2004, demonstrates that the applicants contentions about his address at the time of the barring order are incorrect. After the applicant discharged himself from Cuan Mhuire, he was admitted to Limerick Regional Hospital on 26th December, 2000 and discharged therefrom on 2nd January, 2001. On 19th January, 2001, he was arrested and brought to a Garda Station in Munster. A custody record was completed. This record demonstrates that the applicant was actually arrested at an address in Munster on the date in question. The home address given on the custody record for the applicant was the same. It is now accepted that the applicant's contention that he commenced to reside at that address some time after the date of the barring order is therefore incorrect.

11 7. The barring order granted by the Dublin District Court on 1st February, 2001, was effective from that date until 31st January, 2004. It recites that the respondent therein, that is (the applicant in suit) was to leave the place where he resided at address B, and was prohibited from entering therein. He was further prohibited from using or threatening to use violence against T.C. or any such dependent person of hers or molesting or putting in fear Ms. C. or any such dependent person. He was prohibited from attending at, or in the vicinity of, or watching or besetting a place where the applicant or any dependent person resided during the said period of three years. The order contained a warning indicating that a respondent who contravened the order or refused to permit the applicant or any dependent person to enter the place the residence in question might be arrested without warrant by a member of the Garda Siochána and on conviction for such an offence might be fined the sum of €1500 or sentenced to twelve months imprisonment. While appreciating that the applicant is not a legal person, the effect of the order granted by the District Court on 2nd February, 2001, should be evident to an average reader.

12 8. The applicant accepts that on 13th July, 2001 he went to the premises at address B. The Gardaí were called and he was charged with the offences set out in C. Charge Sheets 344 and 345, of 2001. These charges allege that contrary to s. 17(1) of the Domestic Violence Act 1996, the applicant had entered address B; and secondly that on the same date and time he had assaulted T.C.. The applicant was released on bail and the charges were then adjourned on a substantial number of occasions. He says that he was advised by an unnamed person to seek to apply to extend the time to appeal against the barring order and he arranged to do this. He says that his application however was refused and that he lodged an appeal against that refusal. No date is provided in his affidavits for these events. The applicant states that he consulted the Law Centre Ormond Quay to act for him in his appeal. He does not say when this occurred. He says that the hearing date of this appeal on 24th January, 2003, was the same date upon which he was charged with the two charges to which reference has been made immediately above that is unlawfully entering to address B and assault on T.C. The applicant says:

"I was...