O'Callaghan v O'Sullivan

• Jurisdiction: Ireland
• Judgment Date: 31 March 1925
• Date: 31 March 1925
• Docket Number: (1923. No. 443.)
• Court: Supreme Court (Irish Free State)

Supreme Court.

(1923. No. 443.)

O'Callaghan v. O'Sullivan.

REV. JAMES O'CALLAGHAN

Plaintiff

and

THE RIGHT REV. CHARLES O'SULLIVAN, Bishop of Kerry, Defendant (1)

Contract - Construction - Parish Priest removed by Bishop - Contractual relationship - Parties bound by Canon Law of Roman Catholic Church - Evidence - Proof of Canon Law - Foreign Law - Absence of notice - Whether proceedings contrary to natural justice.

Appeal from an order of Meredith J. The plaintiff, the Parish Priest of Eyeries, in the County of Cork, brought the action against the defendant, the Bishop of the Diocese in which the said parish is situate, in consequence of a Decree of Removal given by the defendant, and purporting to remove the plaintiff from his office and benefice of Parish Priest of the said parish. The facts are fully stated in the judgment of the Chief Justice.

The plaintiff sought—1, a declaration that the Decree of Removal, dated the 15th November, 1919, and the Confirmation thereof, dated the 6th January, 1920, given by the defendant at the Palace, Killarney, and purporting to remove the plaintiff from his office and benefice of Parish Priest of the Parish of Eyeries, in the County of Cork, was illegal, unauthorised, ultra vires, and void; 2, an injunction to restrain the defendant from acting upon the said Decree and directing him to restore the plaintiff to his said office and benefice; 3, an inquiry as to the damage suffered by the plaintiff by reason of the said Decree; and 4, further relief. Meredith J., by his order, dated 29th July, 1924, dismissed the action with costs, and from that order the plaintiff appealed.

Appellant, a Parish Priest, was removed from his parish by a Decree of Removal issued by the respondent, the Bishop of the diocese in which the parish was situated. It was admitted that the legal relationship of the parties was contractual and governed by the "Laws, Ordinances, and Canon Laws" of the Roman Catholic Church. Appellant denied the charges mentioned in the Decree of Removal, and claimed a declaration that the Decree was illegal and void on the grounds:—(1) that there was no power under the Canon Law to issue such a Decree unless a "Citation" had been first served on him, and he had an opportunity to meet the charges made against him; (2) alternatively, if the Canon Law did not require the service of a"Citation" or the granting of a personal hearing, yet the making of the Decree without notice to him was contrary to natural justice.

It was contended for the appellant that the Canon Law of the Roman Catholic Church was not foreign law requiring proof by experts; that the volume of the "Codex Juris Canonici" contained the contract between the parties, constituting a written contract in a foreign language to be construed by the Court accordingly. At the trial a Classical Scholar of Dublin University gave evidence for the appellant as to the translation of portions of the Codex made by him, but he had no special knowledge of Canon Law; and for the respondent two Doctors of Canon Law who were Professors of that subject proved that, according to Canon Law, there was no necessity for the service on the appellant of a "Citation" or process of a similar nature, or for any personal hearing before the making of the Decree of Removal.

Held, that the Canon Law of the Roman Catholic Church is foreign law, which must be proved as a fact and by the testimony of expert witnesses according to the well-settled rules as to proof of foreign law.

The rule is that the foreign law applicable to a case must be taken from the statement of the expert witness as to what the law is, and not from text-books or codes referred to by him. Sussex Peerage Case, 11 Cl. & F. 85,De Bode's Case, 8 Q.B. 208, and Nelson v. Bridport, 8 Beav. 527, applied.

The judgment of Lord Langdale M.R. in Nelson v. Bridport, 8 Beav. 527, having regard to the approval it has received, is to be taken as an exposition of the settled principles upon which the Court will deal with the proof of foreign law. Concha v. Murrietta, 40 Ch. D. 543, does not depart from the principles laid down by Lord Langdale, as in that case there was a conflict of expert witnesses as to the foreign law applicable.

Held, further, affirming Meredith J., that the Decree of Removal was not illegal on the first ground relied on, because the Court must take the fact of the Canon Law which was applicable to the case as proved by the two expert witnesses called for the respondent, and they proved that the Decree was authorised by the Canon Law. Nor was the Decree illegal on the second ground relied on by the appellant (as being contrary to natural justice), because on the facts and documents, taken in conjunction with the Canon Law procedure proved to be applicable, no case of want of notice had been established.

Shaw v. Attorney-General, L.R. 2 P. & D. 156; Fisher v. Keane, 11 Ch. D. 353: and Rex v. Cambridge University, 1 Stra. 557, distinguished.

Cur. adv. vult.

Kennedy C.J. :—

This is an appeal against the judgment and order of the High Court of Justice (Mr. Justice Meredith) dismissing the action out of Court with costs. The claim of the plaintiff in the action was for a declaration that a certain Decree of Removal, dated the 15th November, 1919, and the confirmation thereof, dated 6th January, 1920, given by the defendant at the Palace, Killarney, and purporting to remove the plaintiff from his office and benefice of Parish Priest of the Parish of Eyeries (Kilcatherine) in the County of Cork, was "illegal, unauthorised, ultra vires and void"; and also for an injunction to restrain the defendant from acting upon the said Decree, and directing him to restore the plaintiff to his said office and benefice; and for an enquiry as to the damages suffered by the plaintiff by reason of the said Decree; and the usual further relief.

The plaintiff is a priest of the Roman Catholic Church, having been ordained as such in the year 1870. After holding certain curacies, he was appointed Parish Priest of Eyeries in the County of Cork in the year 1904. The defendant is the Bishop of the diocese in which the said parish is situate.

The plaintiff and the defendant are upon common ground in that they admit that they are respectively subject to and bound by "the Laws, Ordinances and Canon Laws" of the Roman Catholic Church, regulating their sacred offices and their relations with one another.

The Decree of Removal of which the plaintiff complains and which was received by him in the month of November, 1919, ran as follows:—

DECREE OF REMOVAL.

The Palace, Killarney.

To the Rev. James O'Callaghan,

Parish Priest of the Parish of Eyeries

(Kilcatherine), Co. Cork.

Your people's hatred of you, and your ill administration of the temporal goods of your parish, even if they had not already been matters of notoriety throughout our Diocese, have been proved conclusively by admissions made by you, both in your letters and in the evidence you gave at the trial in which your Curates, Fathers Dennehy and O'Reilly, rightly claimed against you for the cost of the maintenance which they ought to have had in your parochial house, but which, in violation of Diocesan custom and law, you forced them to seek outside.

This regrettable state of things makes it incumbent on us to take remedial action in discharge of our obligation to provide for the good of souls.

On the 11th day of July of the present year, 1919, we discussed your case with Synodal Examiners duly appointed for the purpose: the Very Rev. David O'Leary, p.p., v.g., Dean of Kerry, and the Venerable Archdeacon Marshall, p.p., v.g., Kenmare, and, with their consent and approval, decided to address to you an invitation to resign your parish of Eyeries, Co. Cork. Our invitation duly reached you, but you did not accept the invitation, and again on the 8th of September, 1919, we discussed your case with the same Synodal Examiners, in the light of the reply we received from you, and it was unanimously decided that a Decree of Removal should issue against you.

In accordance, therefore, with the prescriptions of Canons 2147 to 2156 of the new Code of Canon Law, and in virtue of the powers therein conferred, we hereby remove you from the office and benefice of Parish Priest of the Parish of Eyeries (Kilcatherine), Co. Cork.

Given at our Palace at Killarney, the fifteenth day of November, in the year of our Lord 1919.

(Seal)

Carolus Dei et

Apostolicae Sedis

Gratia Episcopus

Kerriensis.

The confirmation of that Decree, received by the plaintiff in the month of January, 1920, of which he also complains in this action, reads as follows:—

CONFIRMATION OF THE DECREE OF REMOVAL.

To the Rev. James O'Callaghan,

Parish Priest of Eyeries (Kilcatherine), Co. Cork.

The letter which you sent in reply to the Decree of Removal was duly laid before Parish Priest Consultors, specially summoned to consider your case, namely, Very Rev. Patrick Canon Hayes, p.p., v.f., Castletownbere, and Very Rev. Patrick Canon Browne, p.p., v.f., Cahirciveen. When your letter and all the steps of the process for your removal up to the time of the meeting had been fully considered, the votes were taken and it was decided that the Decree of Removal should be confirmed and enforced.

Consequently, by powers granted by the Canons of the new Code already mentioned in the Decree of Removal, I confirm said Decree of Removal, and hereby deprive you of the office and benefice of Parish Priest of Eyeries (Kilcatherine), Co. Cork.

And I command you immediately, or as soon as possible, to vacate the parochial residence and to hand over to the administrator whom I have appointed, all property belonging to the parish.

Given at our Palace in Killarney, the sixth day of January, in the year of our Lord 1920.

The plaintiff by his Statement of Claim, having first denied the truth of the charges mentioned in the Decree of Removal, contended and submitted...