D (M) & M (J) v Minister for Health

JurisdictionIreland
JudgeO'Neill J
Judgment Date15 February 2002
Neutral Citation[2002] IEHC 128
CourtHigh Court
Docket NumberRECORD NO. No. 179CT/1999
Date15 February 2002

[2002] IEHC 128

THE HIGH COURT

RECORD NO. No. 179CT/1999
RECORD NO. No. 153CT/1999
D (M) & M (J) v. MINISTER FOR HEALTH
IN THE MATTER OF THE HEPATITIS C COMPENSATION TRIBUNAL ACT
1997 AND IN THE MATTER OF SECTION 5[15] OF THE HEPATITIS C
COMPENSATION TRIBUNAL ACT

BETWEEN

MD
APPELLANT

AND

THE MINISTER FOR HEALTH & CHILDREN
RESPONDENT

AND

IN THE MATTER OF THE HEPATITIS C COMPENSATION TRIBUNAL ACT
1997 AND IN THE MATTER OF SECTION 5[15] OF THE HEPATITIS C
COMPENSATION TRIBUNAL ACT

BETWEEN

JM
APPELLANT

AND

THE MINISTER FOR HEALTH & CHILDREN
RESPONDENT

Citations:

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S5(19)

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S3(12)

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S5(17)

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S10

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S5(9)

RULES OF THE SUPERIOR COURT (No7) (APPEALS FROM THE HEPATITIS C COMPENSATION TRIBUNAL) 1998 SI 392/1998 ART 4(3)(C)

RULES OF THE SUPERIOR COURT (No7) (APPEALS FROM THE HEPATITIS C COMPENSATION TRIBUNAL) 1998 SI 392/1998 ART 4(3)(E)

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S5(18)

RULES OF THE SUPERIOR COURT (No7) (APPEALS FROM THE HEPATITIS C COMPENSATION TRIBUNAL) 1998 SI 392/1998 ART 4(3)(G)

GREENDALE DEVELOPMENTS LTD (NO 3), RE 2000 2 IR 514

BELVILLE HOLDINGS V REVENUE COMMISSIONERS 1994 1 ILRM 29

RSC O.20 r11

AINSWORTH V WILDING 1896 1 CH 673

SWIRE, RE 30 CHD 293

LIMERICK VEC V CARR 2001 3 IR 480

HUGHES V O'ROURKE 1986 ILRM 583

O'SULLIVAN V DWYER 1973 IR 81

CONCORDE ENGINEERING V BUS ATHA CLIATH 1995 3 IR 212, 1996 1 ILRM 533

R V BOW STREET METROPOLITAN STIPENDARY MAGISTRATE EX PARTE PINOCHET UGARTE (NO 2) 1999 2 WLR 272, 1999 1 AER 577

STATE RAIL AUTHORITY OF NEW SOUTH WALES V CODELFA CONSTRUCTION PROPRIETARY LTD 1981 150 CLR 29

WENTWORTH V WOOLLAHRA MUNICIPAL COUNCIL 1981–82 149 CLR 672

AUTODESK INC V DYASON (NO 2) 1992–1993 176 CLR 300

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S5(15)

RULES OF THE SUPERIOR COURT (No7) (APPEALS FROM THE HEPATITIS C COMPENSATION TRIBUNAL) 1998 SI 392/1998 ART 3(4)

Synopsis:

TRIBUNALS

Hepatitis C Tribunal

Appeal to High Court - Award - Jurisdiction to interfere with an order which has been made and perfected - Orders of High Court made on appeal from Hepatitis C Tribunal - Whether High Court can and should set aside orders - Hepatitis C Compensation Tribunal Act, 1997, ss. 3(12), 5(9), 5(17), 5(18), 5(19) - 1998 SI 392/1998 - Rules of the Superior Courts, 1986 Order 20 rule 11(1999/179CT - O'Neill J - 15/2/02)

D(M) v Minister for Health and Children

Facts: Both appellants had made claims to the Hepatitis C Compensation Tribunal. Both appellants appealed to the High Court and the Court made orders in their favour. The respondent refused to pay the awards. In the instant proceedings, both appellants sought recovery of the sums awarded. In response, the respondent claimed that both orders should be set aside. The kernel of the dispute was the respondent’s claim that the Court did not have jurisdiction to hear the original appeals because the appellants had accepted the awards of the Tribunal in writing. The respondent claimed that this case was not made in the original High Court appeal because it had not been informed that the appellants had accepted the awards of the Tribunal. The respondent claimed that as a result the High Court orders should be set aside.

Held by O’Neill J. in refusing to set aside the High Court orders that the jurisdiction to interfere with an order which has been made and perfected is limited. Where the High Court is acting as a court of first instance the only circumstances in which a perfected order can be set aside are where there is clerical error in the order and where the order as drawn up does not correctly state what the court decided. This is because the order can be appealed to the Supreme Court. However, where the High is exercising an appellate jurisdiction, the right of appeal is limited and an order may be set aside where there has been a breach of natural justice. The respondent had failed to show that this case was of an exceptional kind which would move a court to set aside a final perfected order.

1

JUDGMENT of O'Neill J delivered the 15th day of February 2002

2

These two cases which for the purpose of this judgment raise identical issues, come before the Court initially on foot Notices of Motion in both cases in which the Appellants in both cases seek orders of the Court appointing receivers by way of equitable execution over state assets, bank accounts and cash holdings held by the Respondent in order to effect recovery by each appellant of the sum awarded to each of them by this Court on appeals taken by both appellants from the Hepatitis C Compensation Tribunal, [hereinafter referred to as the "Tribunal"].

3

In response to those applications the Respondent brought motions on notice in both case, in which the primary relief claimed in both cases is the setting aside of the Orders made by this Court in both cases. In the alternative the respondent claims orders persuant to Section 5[19] of the Hepatitis C Compensation Tribunal Act 1997, giving leave to the Respondent in both cases to appeal to the Supreme Court on a specified question of law.

4

The affidavits filed in these motions set out the circumstances which give rise to the claims now made in both motions. It was clear that the real issue to be decided was that raised on the Respondents motions and it was properly conceded by Mr Maguire for the Respondent that if the Courts ultimately refused the relief sought, it would not be necessary for the Court to proceed to grant the relief claimed by the Appellants in their Notices of Motion. Mr Maguire also very properly concede that the Respondents complaint about the appeals being out of time was not being pressed.

5

Both appellants made claims to the Tribunal. In due course both appealed to this Court and their appeals were heard by me, one, in the case MD on the 19th day of January 2001 and the other in the case of JM on the 30th day of May 2001. In each case the Respondent when notified of the order of this case refused to pay the award and now invites this Court to consider whether it had jurisdiction to make either award for the following reasons.

6

On the 22nd day of April 1999 the Secretary to the Tribunal was notified by the Appellants solicitor in each case of the appeals to this Court. By letter of the 30th day of April 1999, the Secretary to the Tribunal wrote to the Solicitor indicating that in his view neither appellant had a right to appeal as both appellants had accepted the award of the Tribunal. The Secretary also indicated that both appeals appeared to be out of time. These letters were not replied at the time. Neither this Court or the Respondent were informed of the concerns raised by the Secretary to the Tribunal at any stage before or during the hearing of either appeal.

7

On the 8th of June 2001 and on the 13th day of August 2001, the solicitors for both appellants served the orders of this Court on the Tribunal. On the 19th day of September 2001, the secretary to the Tribunal 2001 wrote to the Respondent enclosing the opinion of Senior Counsel in relation to these matters. There also ensued correspondence between the Chief State Solicitor, the Tribunal and the solicitor for the appellants.

8

From the correspondence and the affidavits filed it would appear that the Tribunal did not inform the Respondent of the concern raised by the Secretary to the Tribunal. The reason for this was the statutory scheme in the Hepatitis C Compensation Tribunal Act 1997[hereinafter referred to as the Act of 1997], designed to protect the confidentiality of awards by the Tribunal. As a consequence of this the Respondent did not become aware of it until informed by Secretary to the Tribunal in the correspondence that followed the service on the Tribunal of the orders of this Court.

9

On the other hand the Solicitor for the appellants did not bring the matter to the attention of this Court because, as was urged in verbal submissions of Counsel, he believed that there was no inhibition on the Tribunal in disclosing to the Respondent the fact that an award had been accepted as distinct from the amount of that award and he is not to be faulted for not thinking that the respondent did not know, hence he assumed that that had been done and that it was for the Respondent to have raised the issue of concern to the Secretary to the Tribunal, if he so wished.

10

As a consequence of this the Respondent did not make to third Court, on the hearing of the two appeals, the submissions he now seeks to make, to the effect that the Appellants having accepted in writing the awards of the Tribunal, could not then appeal the award to this Court, and hence this Court had no jurisdiction to hear those appeals.

11

Having considered the evidence on affidavit and the relevant sections of the act dealing with the confidentiality of proceedings both before the Tribunal [section 3[12] ] and this Court on Appeal [section 5[17]], and the sections dealing with the payment of awards [section 10] I have come to the conclusion that there was no good reason why the Tribunal could not have informed the Respondent of the fact that an award had been accepted in writing in apparent compliance with Section 5[9] of the Act. On the other hand, there is no evidence to suggest that the Solicitor for the Appellants had any cause to believe that the Respondent was not aware of the concern raised by the Secretary to the Tribunal in his letter of the 30th of April 1999. I would accept that that the solicitor for the Appellants did not realise that the Respondents were not aware of this matter and it would be unreasonable to have expected him to think that the Tribunal would not have communicated to the Respondent its concern, as expressed in the...

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    ...defendant herein, given that an appeal is available to the defendants. 52 The decision of the High Court of M.D. v. Minister for Health [2002] IEHC 128 (O'Neill J.) is of some assistance. Having reviewed the judgment of Denham J. (as she then was) in the Greendale case referred to above, he......

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