DK v Crowley

• Jurisdiction: Ireland
• Judgment Date: 09 October 2002
• Docket Number: [S.C. No. 220 of 2000]
• Date: 09 October 2002
• Court: Supreme Court

D.K. v. Crowley

D.K.

Applicant

and

Judge Timothy Crowley, Ireland and The Attorney General, Respondents and The Director of Public Prosecutions and L.K., Notice Parties

[S.C. No. 220 of 2000]

Supreme Court

Constitution - Personal rights - Statute - Validity - Right to due process - Audi alteram partem - Presumption of constitutionality - Right to protection from physical violence - Interim barring order - Whether measure proportionate, reasonable and necessary - Domestic Violence Act, 1996 (No. 1).

Family law - Barring order - Interim ex parte order - Constitutionality of legislation - Absence of time limit - Whether ex parte interim barring order violated principle of audi alteram partem - Whether ex parte interim barring order infringed constitutional guarantee of equality - Domestic Violence Act, 1996 (No. 1), ss. 3, 4(1), (2) and (3), 10, 13, 17 and 18 - Constitution of Ireland, 1937, Articles 40.1 and 40.2.

The applicant's wife obtained ex parte an interim barring order against the applicant on the 6th November, 1998, pursuant to s. 4(3) of the Domestic Violence Act, 1996. The interim barring order was to continue until the hearing of the applicant's application for a barring order on the 3rd February, 1999.

On the 9th November, 1998, the applicant issued a summons pursuant to s. 13 of the Domestic Violence Act, 1996, for an order discharging the interim barring order. The return date for the hearing of the application to discharge the interim barring order was the 23rd November, 1998, but was adjourned to the 3rd February, 1999.

On the 3rd February, 1999, the applicant was granted leave by the High Court (McCracken J.) to apply by way of judicial review for an order of certiorari in respect of the interim barring order made on the 6th November, 1998, and for a declaration that s. 4(1), (2) and (3) of the Domestic Violence Act, 1996, were unconstitutional.

On the 2nd June, 2000, the High Court (Kelly J.) refused the applicant's application for judicial review. The applicant appealed to the Supreme Court.

Held by the Supreme Court (Keane C.J., Denham, Murphy, Murray and Hardiman JJ.), in allowing the appeal and granting a declaration that s. 4(3) of the Domestic Violence Act, 1996, was invalid having regarding to the provisions of the Constitution and an order of certiorari quashing the interim barring order, 1, that the procedures prescribed by s. 4(1), (2) and (3) of the Act of 1996, in failing to prescribe a fixed period of relatively short duration during which an interim barring order madeex parte was to continue in force, deprived the respondents to such applications of the protection of the principle of audi alteram partem in a manner and to an extent which was disproportionate, unreasonable and unnecessary.

2. That while the Oireachtas, in upholding the constitutional right of spouses and dependent children to be protected against physical violence, was entitled to abridge the constitutional right to due process of other persons, the extent of that abridgement was required to be proportionate and no more than was reasonably required in order to secure that the constitutional right in question was vindicated.

Heaney v. Ireland [1996] 1 I.R. 580 considered.

3. That an application for a barring or interim barring order was a civil proceeding and the applicant for such an order bore the burden of proof of satisfying a court on the balance of probabilities that such an order should be granted. Likewise the respondent to an application for a barring or interim barring order was entitled to the benefit of the constitutional guarantee of fair procedures in the hearing of the application.

In re Haughey [1971] I.R. 217 followed.

4. That the court was entitled to consider the constitutionality of s. 4(1), (2) and (3) of the Act of 1996, in circumstances where those provisions were the subject of arguments in the High Court and the notice of appeal made it clear that the applicant would be seeking to reverse the order of the High Court insofar as the High Court declined to grant a declaration that s. 4(1), (2) and (3) of the Act of 1996 was unconstitutional.

The Attorney General (Society for the Protection of Unborn Children (Ireland) Ltd.) v. Open Door Counselling Ltd. (No. 2) [1994] 2. I.R. 333 considered.

Obiter dictum: The Supreme Court could consider the constitutionality of legislative provisions in circumstances where the High Court held that the applicant was not entitled to the reliefs sought solely on the ground that the applicant's claim was without merit.

5. That if two or more constructions were reasonably open in any respect of any provision of the Act of 1996, one of which was constitutional and the other was unconstitutional, it was to be presumed that the Oireachtas intended only the constitutional construction.

McDonald v. Bord na gCon (No. 2) [1965] I.R. 217 applied.

6. That it was to be presumed that the Oireachtas intended that any proceedings, procedures, discretions or adjudications permitted, provided for, or prescribed by any enactment would be conducted in accordance with the principles of constitutional justice and that any departure from those principles would be restrained or corrected by the courts.

East Donegal Co-operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317 applied.

Cases mentioned in this report:-

The Attorney General v. Open Door Counselling Ltd. (No. 2) [1994] 2. I.R. 333; [1994] 1 I.L.R.M. 256.

East Donegal Co-operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

In re Haughey [1971] I.R. 217.

Heaney v. Ireland [1996] 1 I.R. 580; [1997] I.L.R.M. 117.

Irish Family Planning Association v. Ryan [1979] I.R. 295.

Killeen v. Director of Public Prosecutions [1997] 3 I.R. 218; [1998] I.L.R.M. 1.

McDonald v. Bord na gCon (No. 2) [1965] I.R. 217; (1965) 100 I.L.T.R. 89.

Melling v. Ó Mathghamhna ó mathghamhna [1962] 1.R. 1; (1961) 97 I.L.T.R. 60.

Murphy v. G.M. [2001] 4 I.R. 113.

O'Callaghan v. Commissioners of Public Works in Ireland [1985] I.L.R.M. 364.

R. (Martin) v. Mahony [1910] 2 I.R. 695.

The State (Lynch) v. Cooney [1982] I.R. 337; [1983] I.L.R.M. 89.

Appeal from the High Court.

The facts are summarised in the headnote and are set out more fully in the judgment of the Supreme Court delivered by Keane C.J., infra.

On the 3rd February, 1999, the applicant was granted leave by the High Court (McCracken J.) to apply by way of judicial review for an order of certiorari in respect of an interim barring order made against him on the 6th November, 1998, and for a declaration that s. 4(1), (2) and (3) of the Domestic Violence Act, 1996, were unconstitutional.

On the 2nd June, 2000, the High Court (Kelly J.) refused the application for judicial review.

The applicant appealed to the Supreme Court by notice of appeal dated the 28th July, 2000.

The appeal was heard by the Supreme Court (Keane C.J., Denham, Murphy, Murray and Hardiman JJ.) on the 30th July, 2002.

Cur. adv. vult.

In accordance with the provisions of Article 34.4.5 of the Constitution, the judgment of the Court was delivered by a single member.

Keane C.J. 9th October, 2002

Introduction

On the 3rd February, 1999, the applicant was given leave by the High Court to apply by way of judicial review for inter alia a declaration that s. 4(1) to (3) of the Domestic Violence Act, 1996, were invalid insofar and to the extent that they were repugnant to the provisions of the Constitution and, in particular, Articles 38.1, 40.3, 41.1 and 50.1.

The proceedings arose out of the granting by the first respondent on the 6th November, 1998, of an interim barring order pursuant to the Domestic Violence Act, 1996, on the application ex parte of the applicant's wife who is the second notice party in these proceedings. In addition to the declarations claiming that the provisions in question of the Act of 1996 were unconstitutional, the applicant was given leave to apply for judicial review by way ofcertiorari in respect of the interim barring order.

A statement of opposition having been filed on behalf of the respondents, a motion on notice seeking the reliefs in question came on for hearing before Kelly J. In an ex tempore judgment delivered on the 2nd June, 2000, the learned High Court Judge refused to grant the reliefs sought. According to the note of his ruling, approved of by him, he did so on the basis that, although the applicant applied to the District Court within three days of its having been made, for an order discharging the interim barring order, he did not proceed with that application on the date fixed for hearing it, i.e. 23rd November, 1998. In those circumstances, the learned High Court Judge concluded that the application was without merit and he, accordingly, refused to grant the reliefs sought. From that judgment and order, the applicant has now appealed to this court.

One of the grounds of appeal advanced was that the learned High Court Judge was wrong in law in failing to find that the making of the interim barring order was "invalid and repugnant to the provisions of Bunreacht na hÉireann héireann." In the written submissions lodged on behalf of the applicant in this court, it is argued that s. 4(1) to (3) of the Domestic Violence Act, 1996, are repugnant to Articles 38.1., 40.1, 40.3.1 , 40.3. 2, 41.1.1 and 41.1.2 of the Constitution.

In their written submissions, it was argued on behalf of the respondents that it had not been contended in the High Court that the relevant provisions were unconstitutional but rather that the applicant was entitled to certiorari on the grounds that the first respondent had acted ultra vires in granting the interim barring order. It was also submitted that the notice of appeal did not, in terms, advance as a ground of appeal the suggested unconstitutionality of the relevant provisions. It was submitted that, in accordance with the decision of this court...