Ciran Waldron v Judge William Early & Judge Matthew Deery

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 15 June 2004
• Neutral Citation: [2004] IEHC 227
• Court: High Court
• Date: 15 June 2004

[2004] IEHC 227

THE HIGH COURT

Record No. 97JR/2000

CIRAN WALDRON v. JUDGE WILLIAM EARLY & JUDGE MATTHEW DEERY

DUBLIN

(JUDICIAL REVIEW)

between:

CIARAN WALDRON

Applicant

-and-

DISTRICT JUDGE WILLIAM EARLY

Second-Named Respondent

-and-

HIS HONOUR JUDGE MATTHEW DEERY

Third-Named Respondent

Citations:

ROAD TRAFFIC ACT 1961 S53

ROAD TRAFFIC ACTS 1964–1984 S51

ROAD TRAFFIC ACT 1961 S106

FINANCE ACT 1983 S94(2)(g)

FINANCE ACT 1992 S139(3)(a)

RSC O.194

RSC O.192

ROAD TRAFFIC ACT 1961 S30(3)

ROAD TRAFFIC ACT 1961 S30(5)

ROAD TRAFFIC ACT 1968 S20

ROAD TRAFFIC ACT 1961 S30

ROAD TRAFFIC ACT 1968 S20(3)(d)

ROAD TRAFFIC ACT 1968 S20(3)(e)

ROAD TRAFFIC ACT 1961 S30(5)(a)

ROAD TRAFFIC ACT 1961 S30(5)(b)

ROAD TRAFFIC ACT 1961 S30(5)(c)

BRADSHAW V MCMULLEN 1920 2 IR 412

DE SMITH JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 4ED 180

A (A) V MEDICAL COUNCIL & AG 2004 1 ILRM 372

HENDERSON V HENDERSON 1843 3 HARE 100

JOHNSON V GORE WOOD & CO 2001 2 WLR 72

R V SECRETARY OF STATE FOR THE ENVIRONMENT EX PARTE HACKNEY & ORS 1983 1 WLR 524

WADE ADMINISTRATIVE LAW 5ED 246

R V SECRETARY OF STATE FOR THE ENVIRONMENT EX PARTE HACKNEY & ORS 1984 1 WLR 592

R (MUNJAZ) V MERSEY CARE NHS TRUST & ORS 2004 QB 395

RSC O.84 r21

FUREY, STATE V MIN DEFENCE 1988 ILRM 89

RSC O.84

DE ROISTE V MIN DEFENCE 2001 1 IR 190

VOZZA, STATE V O FLOINN 1957 IR 227

ABENGLEN PROPERTIES, STATE V DUBLIN CORP 1984 IR 381

KELLY, STATE V DISTR JUSTICE FOR BANDON & ANOR 1947 IR 258

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

O'DONNELL V DUN LAOGHAIRE CORPORATION 1991 ILRM 301

DAWSON V HAMILL 1991 1 IR 213

Abstract:

Criminal law - Judicial review Road traffic offences - Disqualification order - Stay - Whether Circuit Court jurisdiction to make disqualification order - Road Traffic Act 1961, section 30 - Rules of the District Court, O. 194.

Delay - Delay in bringing judicial review application - Whether applicant should be precluded from bringing judicial review proceedings on basis of delay in instituting same - Rules of the Superior Courts 1986, O. 84, r. 20(1).

Practice and procedure - Judicial review - Res judicata - Whether applicant should be precluded from relief by reason of matters being res judicata.

the applicant had been convicted in Donegal District Court, on the 22nd December, 1993, of various offences and was disqualified from driving for 18 months from March 1994. The applicant averred that he believed that the disqualification was stayed pending an appeal. On appeal, determined on the 6th February, 1997 by the second respondent, he was disqualified from driving for 15 months from March 1994. The applicant had not made that appeal within the 14 day time limit set out in the District Court Rules for so doing but on the basis of an extension granted by the court under the Rules. He was given leave to seek by way of judicial review, various reliefs relating to those offences. The applicant alleged that the order of the District Court would have attached to it a stay pending an appeal and therefore it was not open to the third respondent to retrospectively impose an ancillary disqualification. The respondents contended that the matter was res judicata, the applicant having previously applied for judicial review on two previous occasions relating to the same matters and that the application for judicial review had been made out of time.

Held by Smyth J in refusing the reliefs sought that, the provisions of the District Court Rules concerning the stay pending appeal were automatic in the case of an appeal brought within time, but not so in respect of those where obtained on the basis of an extension of time. As no stay had been put on the order of the District Court of the 22nd December, 1993, that order had effect from its operative date. The matter was also res judicata as the issues raised by the applicant were live in the previous set of proceedings brought by the applicant. Moreover the applicant was guilty of delay which was inordinate, inexcusable and had not been justified.

Reporter: P.C.

1 MR. JUSTICE T.C. SMYTH DELIVERED ON WEDNESDAY, 15TH JUNE 2004

MR. JUSTICE SMYTH:	By order dated 1st March 2000,
	Geoghegan J granted the

2 Applicant leave to apply for judicial review for all reliefs on all grounds set out in the statement required to ground an application for judicial review. The order was made ex parte, the Applicant appearing in person. There is no evidence in the order made or in the grounding affidavit or the subsequent five affidavits sworn by the Applicant in these proceedings, between 18th February 2000 and 6th December 2002, that Geoghegan J was informed on 1st March 2000 that there had been two previous sets of proceedings for judicial review relating to the matters put in issue in these proceedings. It is clear from the statement that there was one set of judicial review proceedings in 1994, but there is no reference whatsoever to the second set of judicial review proceedings 208JR/1997. I cannot and do not believe that so experienced a judge would have made the order he did, or at least not insisted on the Respondents being put on notice before entertaining the application and making any order on it had he been alerted to the second set of judicial review proceedings. This expression of reserve I record because of the Applicant's response to my queries in this regard at the hearing.

THE FACTS:-

Historical

3 The Applicant was complained of to the District Court for the following alleged offences on 24th March 1993:-

4 (a) Dangerous driving at Ballyderowen, Burnfoot, County Donegal, contrary to the provisions of Section 53 of the Road Traffic Act 1961, as amended by Section 51 of the Road Traffic Acts 1964/84.

5 (b) Dangerous driving at Bridgend Roundabout, Carrowreagh, Bridgend, contrary to the provisions of Section 53 of the Road Traffic Act 1961, as amended by Section 51 of the Road Traffic Acts 1964/84.

6 (c) Causing damage to motor car 91 MN 867 at Carrowreagh, Bridgend, on 24th March 1993, contrary to Section 106 of the Road Traffic Act 1961, as amended.

7 (d) Obstructing John B. Lynch, an officer of the Revenue Commissioners, in the performance of his duties at Lisfannon, Fahan, contrary to Section 94 (2) (g) of the Finance Act 1983.

8 (e) Possession of an unregistered motor vehicle, to wit Vauxhall Cavalier KJI 6519, at Lisfannon, County Donegal, contrary to Section 139 (3) (a) of the Finance Act 1992.

9 (The foregoing will hereinafter be referred to as the March 1993 offences.)

10 The Applicant was convicted in Donegal District Court on 22nd December 1993 on a number of charges and was, inter alia, disqualified from driving for a period of 15 months, such disqualification to commence on 1st March 1994.

11 On 12th January 1994, District Judge Liam O'McMenamin, on the application of the Applicant, extended the time to appeal the order of 22nd December 1993.

12 It is averred in paragraph (6) of the Applicant's affidavit sworn in these proceedings on 6th December 2002 that on 13th March 1994 counsel on behalf of the Applicant mentioned to Judge Sheehy at the Circuit Court in Donegal Town that the Applicant "would continue to drive during the pendency of his appeal" and that an application for leave to apply by way of judicial review was being lodged in the High Court. There is no evidence that the Circuit Court Judge made any order in regard to this declared intention.

13 Evidence in this case discloses that the Applicant was complained of to the District Court in respect of the following alleged offences under the Road Traffic Acts 1964/84:-

14 (a) 15/ 4/1994: No insurance on motor vehicle BGI 949 at Keeloges, Buncrana, County Donegal, contrary to Section 56 (date 11/4/94 referred to by the Applicant in his affidavit sworn on 28th February 2000, paragraph 14, referred to in paragraph 4 (a) of the same affidavit as 15th April 1994).

15 (b) 17/ 4/1994: No insurance on motor vehicle BGI 949 at St. Mary's Road, Buncrana, County Donegal, contrary to Section 56.

16 (c) 11/ 5/1994: No insurance on motor vehicle 89 D 38623 at Glebe Large, Fahan, County Donegal.

17 (d) 16/ 5/1994: No insurance on motor vehicle 90 DL 496 at Gortyarrigan, Linsfort, Buncrana, County Donegal, contrary to Section 56.

18 (Hereinafter for convenience referred to as the Section 56 offences.)

19 The Applicant avers at paragraph (14) of his affidavit sworn on 28th February 2000 that he produced a certificate of insurance from Hibernian Insurance Company, certificate number 180068, within ten days of one or more of the aforementioned Section 56 offences at Buncrana Garda Station. Judicial review proceedings bearing Record No. 289JR/1994 (hereinafter referred to as the first set of judicial review proceedings) were begun before Carney J, whose order granted leave to apply for judicial review and which order stayed the order of the District Court made on 22nd December 1993, per paragraph (6) of the Applicant's affidavit sworn on 6th December 2002. In my judgment, if the Applicant held the belief that there was a stay on the District Court order of 22nd December 1993 as from its date, there was no necessity to (a) refer before Judge Sheehy that he "would continue to drive during the pendency of his appeal" or (b) request Carney J to put a stay on the order of the District Court made on 22nd December 1993, or 12th January 1994.

20 I am satisfied and find as a fact that the District Court Clerk, Mr. Connell Melley, issued on 11th February 1994 Forms 195, Minute Book Nos. 656, 657 and 659. Mr. Melley, at the request of the Applicant, was brought to court to be cross-examined upon an affidavit he had sworn (in these proceedings) on 1st November 2001. He accepts that the forms were completed by him even though he has no particular recollection of...