Cullen v Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice Hamilton
• Judgment Date: 01 January 1979
• Neutral Citation: 1977 WJSC-HC 406
• Court: High Court
• Docket Number: No. 1256 P./1975,[1975 No. 1256P.]
• Date: 01 January 1979

CULLEN v. ATTORNEY GENERAL

BETWEEN:

PATRICK CULLEN

Plaintiff

and

THE ATTORNEY GENERAL

Defendant

1977 WJSC-HC 406

No. 1256 P./1975

THE HIGH COURT

1 Judgment of Mr. Justice Hamilton delivered the 7th day of July 1977

2 In this case the plaintiff claims;

3 (a) A declaration that section 57 of the Road Traffic Act 1961is invalid having regard to the provisions of the Constitution.

4 In his Statement of Claim the plaintiff alleges that;

5 (a) By Summons dated the 31st day of December 1974 and numbered 124 in the Minute Book of the District Court area of New Ross (District Number 23) the plaintiff was summoned to appear at the District Court sitting at New Ross, County Wexford, at 11 a.m. on the 14th day of January 1975, to answer, inter alia, a complaint that the plaintiff, on the 19th day of December 1974, at Berkley New Ross in the County of Wexford within the Court area and district aforesaid, did use in a public place a mechanically propelled vehicle to wit a motor vehicle, Registration Number 6925 RI, for which neither vehicle insurer nor an exempted person would be liable for injury caused by the negligent use of the said vehicle by him at that time and for which there was not in force at the time, an approved policy of insurance as required by Part VI of the Road Traffic Act 1961contrary to the provisions of section 86 of the Road Traffic Act 1961as amended by Part IV of the Road Traffic Act 1968.

6 (b) The plaintiff upon the hearing of the said complaint at the said Court was convicted of the offence described in the said Summons.

7 (c) At the conclusion of the said hearing of the said complaint, an application was made on behalf of one Oliver Sinnott for an order pursuant to section 57 of the Road Traffic Act 1961, and in the application, the solicitor for the said Oliver Sinnott applied to the Court that the Court should inflict upon the plaintiff in addition to any other punishment, a fine of the sum of £606.55 being, it was alleged, the damages which the said Oliver Sinnott would be entitled to recover against the plaintiff.

8 (d) The plaintiff was represented in Court solely for the purpose of defending the said complaint and had no notice of the aforesaid application and was not in a position to argue the matters raised in the said application.

9 (e) The plaintiff was fined £606.55 by the District Justice hearing the said complaint under section 57 of the Road Traffic Act 1961/ 68and in default of payment sentenced to six months imprisonment.

10 (f) The said Order was made in pursuance of the powers conferred on the District Justice by section 57 of the Road Traffic Act 1961.

11 It is alleged in the said Statement of Claim that section 57 of the Road Traffic Act 1961is invalid having regard to the provisions of the Constitution and that by reason of the procedure and effect of the said section the plaintiff was;

12 (a) Denied access to the Courts.

13 (b) Deprived of his rights under the Civil Liability Act 1961.

14 (c) Denied an opportunity of preparing his defence to the said application.

15 (d) The proceedings were contrary to natural Justice and constitutional justice.

16 (e) The penalty was determined by reference to matters other than the proper and appropriate consideration in regard to the offence committed by the plaintiff, namely, inter alia, the amount of the alleged damage to the said Oliver Sinnott.

17 By letter dated the 19th day of September 1975 addressed by the Chief State Solicitor to the plaintiff's solicitor the Chief State Solicitor stated that;

18 "I am instructed by the Attorney General to write to you regarding the plenary summons served and the Statement of Claim delivered in this action. You are required to furnish particulars of the following matters:-

19 (a) The Article or Articles of the Constitution and the specific provisions thereof which are alleged to be infringed by section 57 of the Road Traffic Act 1961.

20 (b) The manner, or respects, in which it is alleged that the said section infringes the said provisions of the Constitution.

21 (c) Was the application of Oliver Sinnott, referred to in paragraph 4 of the Statement of Claim made orally or in writing? If made in writing furnish copy thereof.

22 I am further instructed to enquire whether the matters raised in paragraph 8 (c) and (d) of the Statement of Claim have relation to the alleged unconstitutionality of the section impugned, or are concerned with the validity on legal grounds "apart from the constitution of the order of the District Justice referred to in paragraphs 6 and 7 of the Statement of Claim. In the latter case, it is submitted that these are matters not properly maintainable in this action as now constituted, and that the Attorney General is not legally concerned therewith."

23 By letter dated the 3rd day of October 1975 the plaintiff's solicitor replied to the Chief State Solicitor's letter as follows;-

24 "We refer to your letter of the 19th September. The following are the particulars you require;-

25 (a) Article 40. The provisions contained in sub-articles (1) and (3).

26 (b) The section infringes the provisions of the Constitution in that a person to whom the section relates is deprived of the protection afforded to all citizens in the defence of civil actions brought by third parties (such protection being afforded by the Acts of the Oireachtas and the Rules of the Court made thereunder and by common law) and is also deprived of the normal protection afforded to debtors for a civil debt available to all citizens.

27 (c) The application was made orally and without notice to the plaintiff.

28 With regard to the last paragraph of your letter, the "matters contained in paragraphs 8 (c) and (d) relate to the alleged unconstitutionality of the section Impugned.

29 The plaintiff will of course reserve his rights to make | such complaint relating to the conduct of the case by the District Justice as he may be advised. However for the purpose of the present case all the matters set out in paragraph 8 on the Statement of Claim relate to the unconstitutionality of the section."

30 In his defence the Attorney General denies that section 57 of the Road Traffic Act 1961is invalid having regard to Article 40 section 1 or 3 or to any of the provisions of the Constitution.

31 He further denies that the order complained of was made or properly made in pursuance of section 57 of the Road Traffic Act 1961, that the plaintiff was denied access to the Courts, that the plaintiff was deprived of his rights under the Civil Liability Act, that the plaintiff was denied an opportunity of presenting a defence to the said application, denies that the proceedings were contrary to natural or constitutional justice, that the plaintiff did not have notice of the application or was not in a position to argue the matter raised in the said application and further denies that the alleged penalty was determined by matters other than the proper and appropriate consideration in regard to the offence committed by the plaintiff and he further denies that the sum ordered to be paid by the District Justice constituted a penalty.

32 When the matter came before me and as the plaintiff claim in these proceedings was for:-

33 "A declaration that section 57 of the Road Traffic Act 1961was invalid having regard to the provisions of the Constitution.

34 That the Judge ruled the plaintiff's challenge would have to be directed to the section and not to the manner in which the Learned District Justice exercised the powers conferred on Mm by the section. And ruled that no evidence would be admitted with regard to the manner of the exercise by the Learned District Justice of these powers.

35 Consequently the matter was heard by me without oral evidence and it was conceded on behalf of the Attorney General that

36 1. The Learned District Justice convicted the plaintiff of the offence of using the motor vehicle registration number 6925 RI for which neither a vehicle insurer nor an exempted person would be liable for injury caused by the negligent use of the said vehicle by him at Berkley, New Ross, a public place within the relevant court area and district and for which there was not then in force an approved policy of insurance as required by Part VI of the Road Traffic Act 1961, contrary to the provisions of section 56 of the Road Traffic Act 1961as amended by Part VI of the Road Traffic Act 1966 and

37 2. That the learned District Justice did on the 14th day of January 1975 make an order in the following terms:

"The District Court"

38 District Court Area of New Ross

39 District Number 23

40 Complainant The Director of Public Prosecutions

41 Defendant Patrick Cullen

42 On the 14th day of January 1975 at New Ross in the said district, before me, the Justice for the time being assigned to the said district, a complaint was heard that Patrick Cull en of Rathgarogue, Ballywilliam, New Ross, County Wexford did on the 19th day of December 1974 at Berkley, New Ross, County Wexford within the Court Area and District aforesaid use in a public place a mechanically propelled vehicle to wit a motor car registration number 6925 RI for which neither a vehicle insurer nor an exempted person would be liable for injury caused by the negligent use of the said vehicle by him at that time and for which there was not In force at that time an approved policy of Insurance as required by Part VI of the Road Traffic Act 1961contrary to the provisions of section 56 of the Road Traffic Act 1961as amended by Part VI of the Road Traffic Act 1968and I did adjudge that In accordance with section 57 of the Road Traffic Act 1961/ 8

43 The defendant convicted and ordered to pay for fine the sum of £606.55 and in default of payment of said Bum within twelve months to be imprisoned for six months without hard labour unless...