D (T) v Judge Flanagan and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice McMahon |
| Judgment Date | 06 November 2009 |
| Neutral Citation | [2009] IEHC 487 |
| Court | High Court |
| Date | 06 November 2009 |
[2009] IEHC 487
THE HIGH COURT
BETWEEN
AND
RSC O.84 r21
FAMILY LAW ACT 1995 S9(1)(A)
FAMILY LAW ACT 1995 S15A
CONSTITUTION ART 41
CONSTITUTION ART 40.3
PAYNE v JUDGE BROPHY 2006 1 IR 560 2006/48/10203 2006 IEHC 34
ROCHE, STATE v DELAP 1980 IR 170
STEFAN v MIN FOR JUSTICE & ORS 2001 4 IR 203 2002 2 ILRM 134 2001/23/6290
A (NA) v REFUGEE APPLICATIONS CMSR & REFUGEE APPEALS TRIBUNAL 2007 2 IR 787 2007/1/110 2007 IEHC 54
T (TR) v MIN FOR JUSTICE & ORS UNREP DUNNE 4.5.2007 2007/58/12444 2007 IEHC 168
JUDICIAL REVIEW
Alternative remedy
Appeal as bar to judicial review - Choice of remedy - Application for leave to judicially review decision of Circuit Court Judge - Case appealed to High Court who dismissed appeal and affirmed order before leave sought - Time limits - Delay - Three month period expired - Whether any good reason to extend time for leave - Sufficient knowledge to apply for judicial review before appeal - Appropriateness of judicial review in circumstances - Propriety of judicially reviewing Circuit court order which was overtaken by subsequent High Court order -- Discretion - Whether applicant debarred from challenging decision by reason of appeal - Whether any special circumstances - Payne v Brophy [2006] IEHC 34, [2006] 1 IR 560 distinguished; State (Roche) v Delap [1980] IR 170 and Stefan v Minister for Justice [2001] 4 IR 203 considered; NAA v Refugee Applications Commissioner [2007] IEHC 54, [2007] 2 IR 787 and TRT v Minister for Justice [2007] IEHC 168 (Unrep, Dunne J, 4/5/2007) applied - Rules of the Superior Courts 1986 (SI 15/1986), O 84 r 21 - Family Law Act 1995 (No 26) ss 9 and 15 - Leave refused - (2009/415JR - McMahon J- 6/11/2009) [2009] IEHC 487
D (T) v Judge Flanagan
Facts the respondent had made an order in the Circuit Court, which the applicant had appealed to the High Court. The High Court dismissed the appeal but placed a one month stay on the order to allow the applicant appeal that order subject to the applicant fulfilling a number of conditions. As the applicant failed to comply with those conditions, the order of the High Court became absolute on the 12th April, 2009. The applicant was subsequently granted leave to apply for judicial review of the same order of the Circuit Court. In the application for leave, the applicant had made no reference to the fact that he had already appealed the same order. The respondent submitted that the application should be declined due to undue delay of about nine months on the part of the applicant and the inappropriateness of judicial review.
Held by Mr Justice McMahon in refusing the relief sought that the onus was on an applicant for judicial review to move promptly. Having made the choice to pursue an appeal, the court should be slow to indulge the applicant in his application for judicial review, which, in any event, was out of time. The normal position was that where an appeal was determined, an applicant had gone too far and the High Court would not subsequently interfere with the first instance decision by way of judicial review, whilst the Court retained a discretion to do so, it should only exercise its discretion to grant certiorari of a decision which had been the subject of a decided appeal where there existed special circumstances which made such late interference necessary to do justice for the parties. there were no such special circumstances in the present application.
N. A. A. v. Refugee Application Commissioner [2007] 2 I.R. 787 and Payne v. Brophy [2006] 1 I.R. 560 applied.
Reporter: P.C.
JUDGMENT delivered by Mr. Justice McMahon on the 6th day of November, 2009
In family law proceedings between the applicant and the notice party, Judge Flanagan of the Circuit Court made an order on 10 th July, 2008. This order was perfected on 7 th August, 2008. The applicant appealed the decision of Judge Flanagan. On 12 th March, 2009, this Court heard the appeal. On that day, Murphy J. made a provisional order on the following conditions:-
i "(i) That the appeal be dismissed together with a one month stay from 12 th March, 2009 to enable the applicant to make two monthly repayments of the mortgage property at […].
(ii) That the request to the accounts documentation from Ulster Bank be complied with by the applicant within one month from 12 th March, 2009.
(iii) That in default of the conditions - as outlined - not [being] met, [the] provisional order becomes absolute in that the applicant will not be able to pursue his appeal.
(iv) That if both conditions are complied with, the court will entertain the appeal on a peremptory basis on the next adjourned date.
(v) That costs be approved in favour of the respondent."
It was indicated to this Court that the applicant did not comply with the conditions set out by Murphy J. and, therefore, in accordance with its terms Murphy J's order became "absolute" on 12 th April, 2009.
On 20 th April, 2009, the applicant applied to the High Court for leave to apply for judicial review of Judge Flanagan's order and sought, inter alia, declarations that sections 9 to 15 and section 32 of the Family Law Act 1995 were unconstitutional. This was an ex parte application and was grounded on the affidavit of the applicant. In this affidavit there was no reference whatsoever to the fact that Judge Flanagan's order had already been appealed to the High Court and Murphy J's order in the High Court had become absolute some eight days before the application for leave to apply for judicial review. Leave was granted by Peart J. on 20 th April, 2009.
Counsel on behalf of the second and third named respondents objected and made submissions under three headings:-
(i) Undue delay;
(ii) The appropriateness of judicial review in this case; and
(iii) The substantive issue relating to the constitutional challenge.
Order 84, rule 21 of the Rules of the Superior Courts provides as follows:-
2 "(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made.
(2) Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.
(3) The preceding paragraphs are without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made."
From this, it can be seen that in seeking judicial review the onus is on the applicant to move promptly and, in any event, within three months of a court judgment or six months where certiorari is sought. In the present case, the delay is one of nine months and ten days or eight months and thirteen days if the calculation is made from the date when the order was perfected. In either case, the applicant is clearly out of time. Counsel for the applicant submitted that there is good reason for extending the period in this case and urged the court to exercise some leniency in the following circumstances:-
(a) The delay in this case is not egregious in itself.
(b) The applicant was a lay litigant for some of the relevant period, the solicitors in the Circuit Court action having come off record.
(c) The matters in respect of which leave was granted raised serious matters of public importance involving as they do a constitutional challenge to s. 9(1)(a) and s. 15(a) of the Family Law Act 1995, in particular on the grounds that these provisions are contrary to the constitutional provisions dealing with:-
(i) the family (Article 41)
(ii) the right to earn one's livelihood recognised as falling within the protection of Article 40.3.
The applicant also claimed that these provisions were contrary to certain provisions of the European Convention on Human...
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