Devanney v Shields

• Jurisdiction: Ireland
• Judge: McCracken J.
• Judgment Date: 31 October 1997
• Neutral Citation: [1997] IEHC 167
• Docket Number: No. 111 J.R./1997
• Court: High Court
• Date: 31 October 1997

DEVANNEY v. SHIELDS & DPP

JUDICIAL REVIEW

BETWEEN

PATRICK DEVANNEY

APPLICANT

AND

DISTRICT JUDGE DANIEL SHIELDS, THE DIRECTOR OF PUBLICPROSECUTIONS, THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEYGENERAL

RESPONDENTS

AND

ANNE CAWLEY

NOTICE PARTY

[1997] IEHC 167

No. 111 J.R./1997

THE HIGH COURT

Synopsis

Administrative

Judicial review; summons; validity; traffic offences; whether District Court Clerk who issued summons properly appointed; whether statutory power of Minister to appoint District Court Clerks delegable; whether officers who appointed District Court Clerk on behalf of Minister only authorised to authenticate Minister's decision; whether summons lawfully issued; s.46(2) Court Officers Act, 1926 Held: District Court Clerk not validly appointed; summons invalid High Court: McCracken J. 31/10/1997) [1998] 1 IR 230

Devanney v. Shields

Citations:

COURT OFFICERS ACT 1926 S46

COURT OFFICERS ACT 1926 S48

MINISTERS & SECRETARIES ACT 1924 S15(4)

DOCUMENTARY EVIDENCE ACT 1925 S7(2)

COURTS (NO 3) ACT 1986 S1

COURTS (NO 3) ACT 1986 S1(2)

COURT OFFICERS ACT 1926 S46(2)

CARLTONA LTD V COMMISSIONERS OF WORKS 1943 2 AER 560

TANG V MIN FOR JUSTICE 1996 2 ILRM 46

DPP V O'ROURKE UNREP FINLAY 25.7.1983 1983/8/2303

1 JUDGMENT of McCracken J.delivered on the 31st day of October, 1997.

2 The facts surrounding this application are not in dispute, but in order to understand the case being made by the Applicant, it is necessary to summarise these facts, both in relation to the Applicant himself and in relation to the purported appointment of the Notice Party as a District Court Clerk.

THE FACTS RELATING TO THE APPLICANT

3 It is alleged that the Applicant committed certain offences under the Road Traffic Acts on 18th June, 1996 at Ardoughan, Ballina, County Mayo. On 29th November, 1996, a summons was issued from the District Court Office in Ballina reciting that an application was made to that office on 29th November, 1996 on behalf of the second Respondent, and the Applicant was summoned to appear at a sitting of the District Court in Ballina on 10th December, 1996. This summons was signed by the Notice Party who was stated therein to be the "appropriate District CourtClerk".

4 On 10th December, 1996, the Applicant appeared by his solicitor before the Ballina District Court, and his solicitor has deposed on Affidavit that it was at all times his intention on behalf of the Applicant to challenge the validity of this summons. In fact, the validity of another summons signed by the Third Party was challenged in an earlier case on the same day by another solicitor, and the first Respondent adjourned all summonses signed by the Notice Party until 14th January, 1997, including the summons issued to the Applicant.

5 It would appear that the District Court Office in Ballina recognised that the Notice Party had not in fact been appointed as a District Court Clerk at the time she signed the summons, and accordingly a new summons was issued on 16th December, 1996, again signed by the Notice Party as the "appropriate District Court Clerk" and purporting to be on foot of a complaint made on behalf of the second Respondent on 16th December, 1996 to the District Court Office in Ballina. This second summons was returnable for 14th January, 1997, which was also the date to which the first summons had been adjourned. On 14th January, 1997, the Applicant again appeared in Ballina District Court by his solicitor, who challenged the validity of both summonses on the basis that the Notice Party had not been validly appointed as a District Court Clerk, and therefore could not lawfully issue summonses. The first Respondent struck out the summons of 29th November, 1996 andindicated that he felt the issue of the validity of the second summons should more properly be determined by the High Court, and adjourned the matter to allow these proceedings to be brought. The second summons still stands adjourned pending the outcome of these proceedings.

THE FACTS SURROUNDING THE NOTICE PARTY

6 The Notice Party was formerly an Executive Officer in the Department of the Environment. Some time prior to October 1996, she requested a transfer to Mayo. On 4th October, 1996, she was transferred to the Ballina District Court Office on a temporary basis, but no appointment was made or purported to be made of her as a District Court Clerk. She did in fact act as a District Court Clerk from 10th October, 1996. Although it is not the issue in this case, it seems quite clear that the Notice Party was not in fact a District Court Clerk at the time of the issue of the first summons, and this seems to have been recognised by the fact that the second summons was only issued after attempts had been made to regularise her position.

7 On 5th December, 1996, two documents issued from the Department of Justice purporting to regularise the Notice Party's position. The firstread:-

"COURT OFFICERS ACT, 1926

The Minister for Justice, in exercise of the powers conferred on her by subsection (2). of section 46 of the Court Officers Act, 1926, hereby appoints Ms. Anne Giblin a District Court Clerk.

Dated this 5th day of December 1996

For the Minister for Justice"

8 This was signed by Margaret Kerrigan who was stated to be "anofficer authorised in this behalf by the said Minister".

9 The second document read:-

"COURT OFFICERS ACT. 1926

The Minister for Justice, in exercise of the powers conferred on her by subsection (1) of section 48 of the Court Officers Act, 1926hereby appoints Ms. Anne Giblin a District Court Clerk and assigns her to the District Court areas of Ballina, Belmullet, Ballycastle, Crossmolina, Foxford, Easky, Killala, Inniscrone, Balla, Ballycroy and Swinford, with effect from 5th December 1996

Dated this 5th day of December 1996

For the Minister for Justice"

10 This was signed by Noel Synnott, who is stated to be "anofficer authorised in this behalf by the said Minister".

11 It is accepted that the Ms. Anne Giblin referred to in these two documents is in fact the Notice Party, who prefers to be known by her maiden name of "Anne Cawley", and no point arises onthis.

12 It was in reliance on this appointment that the second summons was issued on 16th December, 1996, and was signed by the Notice Party as the appropriate District Court Clerk.

THE STATUTORY PROVISIONS

13 The office of District Court Clerk was established under the Court Officers Act, 1926. The relevant sections are as follows:-

14 2 "46(1) There shall be attached to the District Court such and so many District Court Clerks as the Minister shall, with the sanction of the Minister for Finance, from time to time direct.

15 (2) Subject to the provisions of this section, every District Court Clerk shall be appointed by the Minister and shall (unless he is a pensionable officer) hold office at the will of and may be removed by the Minister.

16 (5) The District Court Clerk's office shall for the purposes of this Act be deemed to an office established by this Act.

17 3 48(1) Every District Court Clerk shall be assigned to such one or more District Court areas as the Minister shall from time to time direct and shall have and exercise all such powers and authorities and perform and fulfil all such duties and functions in relation to the District Court in such District Court area or areas as shall from time to time be conferred or imposed by him by statute or rule of Court... "

18 The Respondents contend that the purported appointment of the Notice Party as a District Court Clerk is valid by reason of the authority of the third Respondent dated 11th July, 1996 whereby both Margaret Kerrigan and Noel Synnott were authorised to authenticate by their signatures orders and instruments made by the Minister for Justice pursuant to the provisions of subsection (4) of section 15 of the Ministers and Secretaries Act, 1924and of subsection (2) of section 7 of the Documentary Evidence Act, 1925.

19 Section 15(4) of the Ministers and Secretaries Act, 1924reads as follows:-

"Nothing in this Act shall render the affixing of the official seal of a Minister who is the head of a department of state established by this Act to any order or other instrument ... made by such Minister necessary to the validity of such order or other instrument, and any such order or other instrument, unless expressly required by any statute to be under seal, shall be sufficiently authenticated by the signature of such Minister or of the secretary or other officer of such department of state duly authorised by such Minister to authenticate such orders and instruments."

20 Section 7(2) of the Documentary Evidence Act, 1925reads as follows:-

"Any such Minister as aforesaid may at any time or times authorise more than one officer of his department of state to authenticate orders and instruments under subsection (4) of section 15 of the act aforesaid and where more than one such officer is so authorised any order or instrument...