Goold -v- Judge Collins & ors,  IESC 38 (2004)
|Party Name:||Goold, Judge Collins & ors|
THE SUPREME COURTHardiman J. 201/03Geoghegan J.Fennelly J.Between:EILEEN GOOLD Applicant/RespondentandMARY COLLINS, A JUDGE OF THE DUBLIN METROPOLITAN DISTRICT COURT,andTHE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND, THE ATTORNEY GENERALandJOHN JOSEPH (ORSE. JACKIE) GALLAGHER Respondents/AppellantsJUDGMENT of Mr. Justice Hardiman delivered the 12th day of July, 2004.This is the appeal of the appellants (whom I shall describe as the authorities) against a portion of an order of the High Court (McKechnie J.) of the 7th April, 2003. By this order the learned High Court Judge stayed the applicant's judicial review proceedings except in relation to the reliefs sought at paragraphs 1 and 2 of her notice of motion. This was done on the basis that the other reliefs sought were moot. The authorities appeal on the grounds that the relief sought at paragraphs 1 and 2 are also moot. Ms. Goold has not appealed the staying of the balance of the proceedings.Factual background.These proceedings arise from matrimonial difficulties between the plaintiff and her husband, who is the fifth-named respondent Mr. Gallagher. The details of these differences (as opposed to the proceedings to which they give rise) are, of course, wholly irrelevant to the present judicial review proceedings. Notwithstanding that obvious fact, the applicant/respondent has seen fit in her verifying affidavit gratuitously to give her one-sided account of these differences. This conduct on the part of the applicant is vexatious in the literal sense of the term, and absolutely unfair to the fifth-named respondent. Mr. Gallagher has taken no part whatever in this appeal and it will be easy to understand why he has taken this course when the nature of the proceedings is set out. I deprecate what the applicant/respondent has done and I wish to make it clear that I have disregarded and withheld credence from the allegations in relation to Mr. Gallagher for the purpose of this judgment.Events of May, 2002 - January, 2003. The events which form essential factual background to the present application took place in this period. On the 14th May, 2002 a Protection Order was granted by the District Court in favour of the applicant and against Mr. Gallagher.On the 18th September, 2002 a Protection Order was granted by the District Court in favour of Mr. Gallagher and against the applicant. This is the order which, inter alia, the present proceedings seek to quash.On the 21st and 22nd September, 2002 events occurred which led to two arrests of the applicant and the institution of certain criminal proceedings against her, in relation to alleged breaches of the Protection Order obtained by Mr. Gallagher.On the 30th September, 2002, Ms Goold obtained, ex parte, an interim barring order against Mr. Gallagher. This was discharged by the District Court on the 16th October, 2002.On the 9th October, 2002 this Court delivered its judgment inDK v. Crowley  2 IR 744. The Court declared that s.4(3) of the Domestic Violence Act, 1996 was invalid having regard to the provisions of the Constitution.On the 21st November, 2002 Ms. Goold and Mr. Gallagher reached an agreement. The entire relevant text of this agreement is set out below. Pursuant to its terms, the Protection Order which had been granted in Mr. Gallagher's favour was to be discharged by consent.On the 17th December, 2002 the applicant obtained leave to bring the present judicial review proceedings.On the 29th January, 2003, the adjourned date of the charges against the applicant, the said charges were dismissed.The agreement. The agreement arrived at between the parties of the 21st November, 2002 was an exhibit in the present proceedings. Certain of its provisions are irrelevant to the present litigation, but the following have an obvious bearing:-"(1) -(2) The husband shall forthwith withdraw the complaints made by him to An Garda Síochána which resulted in two prosecutions being initiated against the wife in respect of the alleged incidents at the family home on the 21st and 22nd September, 2002, which prosecutions are brought pursuant to s.17(1) of the Domestic Violence Act, 1996. And the husband shall ask An Garda Síochána to confirm in writing within seven days of this date to the wife's solicitors that the summonses relating thereto will be withdrawn and will not proceed into hearing in the Dublin Metropolitan District Court on the 29th January, 2003.(3) -(4) The Protection Order made on the 18th September, 2002 by the Dublin Metropolitan District Court on the application of the husband shall be discharged and the custody order made on the 30th September, 2002 on the application of the wife shall be discharged.(5) - "This agreement was signed by the parties and witnessed by their respective solicitors.It is undisputed that the husband complied with the terms of this agreement. The Protection Order was discharged on the 21st November. However, in view of certain submissions made in the course of this case the precise mode of compliance with the terms of the agreement in relation to the prosecutions is of relevance. These appear from the affidavit of Inspector Patrick Mangan. From this it appears that on the 22nd November, 2002, the day after the agreement, the husband's solicitors wrote to the Superintendent at Celbridge (where the relevant premises were located) asking him to note that "Our client wishes to withdraw the complaints made by him to An Garda Síochána which resulted in two prosecutions being initiated against Eileen Goold, his wife, in respect of alleged incidents in the family home on the 21st - 22nd September, 2002, which prosecutions are brought pursuant to s.17(1) of the Domestic Violence Act, 1996". The solicitor went on to seek the confirmation referred to in the agreement.By letter of the 31st December, the Inspector wrote to the husband's solicitors saying, relevantly "I am to state that this matter is listed for hearing at Kilmainham District Court on the 29th January, 2002. Your client should attend court to withdraw the complaint in person. Proceedings have already been instituted in this matter".As already noted the charges were in fact dismissed on that day because the husband did not prosecute them. It therefore appears that the husband complied with the terms of the agreement: he withdrew the complaints in writing and sought the confirmation referred to at paragraph 2 of the agreement. The Gardaí, for their part, were entitled to take the view that they could not withdraw proceedings already instituted: that was a matter for the Court.The judicial review proceedings.In her judicial review proceedings, the wife sought the following remedies:-"1. A Declaration that Section 5 subsections (1) and (4) of the Domestic Violence Act 1996 are invalid having regard to the provisions of the Constitution and more particularly pursuant to Articles 40.1 and Article 40.3 of the Constitution.2. An Order of Certiorari quashing the Protection Order made by the Dublin Metropolitan District Court on the 18th September 2002 on the application of Jack Gallagher, the Applicant's husband.3. An Order prohibiting the Director of Public Prosecutions from further prosecuting the Applicant herein in proceedings entitled "The Director of Public Prosecutions at the suit of Garda John J. O'Connell v. Eileen Gould (otherwise Goold)" presently pending before the Dublin Metropolitan District Court and scheduled for hearing on the 29th January 2003.4. An Order prohibiting the Director of Public Prosecutions from further prosecuting the Applicant herein in the proceedings entitled "The Director of Public Prosecutions at the suit of Garda Kieran Trainor v. Eileen Gould (otherwise Goold)" presently pending before the Dublin Metropolitan District Court and scheduled to be heard on the 29th January 2003.5. Such further Order as this Honourable Court may deem meet including an Order providing for the Costs of this application.The wife, the applicant in these proceedings, obtained leave to seek those reliefs by way of judicial review on the 17th December, 2002 and issued a motion directed to the respondents returnable for the 28th January, 2003.When the proceedings came on for hearing counsel for the authorities applied to the learned trial judge to try, as a preliminary issue, the question of whether or not the application for judicial review was moot. In his judgment of the 7th April, 2003 the learned trial judge held that the claims to the reliefs set out at paragraphs (3) and (4) were indeed moot and he stayed the proceedings in respect of those reliefs. In doing so he held that:-"As the husband had withdrawn the complaint, the taking of relief proceedings on the 17th...
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