Goold v Mary Collins, a District Court Judge

JurisdictionIreland
JudgeMr. Justice Hardiman
Judgment Date12 July 2004
Neutral Citation[2004] IESC 38
CourtSupreme Court
Docket Number201/03
Date12 July 2004
GOOLD v. COLLINS & ORS

Between:

EILEEN GOOLD
Applicant/Respondent

and

MARY COLLINS, A JUDGE OF THE DUBLIN METROPOLITAN DISTRICT COURT,

and

THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND, THE ATTORNEY GENERAL

and

JOHN JOSEPH (ORSE. JACKIE) GALLAGHER
Respondents/Appellants

[2004] IESC 38

Hardiman J.

Geoghegan J.

Fennelly J.

201/03

THE SUPREME COURT

Synopsis:

- [2005] 1 ILRM 1

Facts: The proceedings arose from matrimonial difficulties between the plaintiff and the fifth named respondent. On 14 May, 2002 a Protection Order was granted by the District Court in favour of the applicant and against Mr. Gallagher. Subsequently, on 18 September, 2002 a Protection Order was granted by the District Court in favour of Mr Gallagher and against the applicant. The applicant was arrested on two separate occasions and certain criminal proceedings were instituted against her, in relation to alleged breaches of the Protection Order obtained against her. On 30 September, 2002, the applicant obtained an ex parte interim barring order against Mr Gallagher. However, that order was discharged by the District Court on 16 October, 2002. Subsequently, on 21 November, 2002 the applicant and the fifth named respondent reached an agreement which provided that the Protection Order which had been granted in Mr Gallagher's favour was to be discharged and that Mr Gallagher would withdraw the complaints made by him to An Garda Siochana regarding the applicant's alleged breaches of the Protection Orders. On 29 January, 2003, the charges against the applicant were dismissed. Prior to that on 9 October, 2002, the Supreme Court delivered its judgment in the case of DK v Crowley [2002] 2 IR 744, which declared that section 4(3) of the Domestic Violence Act, 1996 was invalid having regard to the provisions of the Constitution. Subsequently, on 17 December, 2002 the applicant obtained leave to bring judicial review proceedings in which she sought a declaration that section 5 subsections 1 and 4 of the 1996 Act were invalid having regard to the provisions of the Constitution, an order of Certiorari quashing the Protection Order made against her, and orders prohibiting the DPP from further prosecuting the proceedings against the applicant. At the hearing of these proceedings in the High Court the respondents 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. McKechnie J. in his judgment of 7 April, 2003 held that the claims in relation to the reliefs as set out in paragraphs 3 and 4 were moot and he stayed the proceedings in respect of those reliefs. The respondents appealed against a portion of the order of the High Court on the basis that the other reliefs were also moot.

Held by the Supreme Court (Hardiman, Geoghegan, Fennelly JJ) in allowing the appeal and staying the applicant's proceedings for the relief set out at paragraphs 1 and 2 of her Notice of Motion and thereby staying the entire proceedings:

1. That the applicant, like every other citizen was entitled to her good name. However, any person who formed a view adverse to the applicant's good name or reputation on the basis that she had been the subject of an ex parte Order of any kind would be acting unreasonably in the legal sense of that term. Such a conclusion would be logically and legally unsupportable, would fly in the face of common sense and would be most unjust. It followed that no court would be justified in allowing the mere fact that ex parte relief had been granted against the applicant to tilt the balance of that litigation in any way against her.

2. That a proceeding is said to be moot when there is no longer any legal dispute between the parties. The question of mootness should be judged after the commencement of the proceedings and therefore the applicant was incorrect in her contention that mootness should have been assessed at the date leave was obtained. Mootness was of particular relevance in this case where the point on which a decision was sought involved the constitutionality of a statutory provision.

3. That the present case was moot in the sense that it did not feature a live, concrete dispute between the parties: a decision on the outstanding issues would have had no direct impact on the parties. Specifically, the Protection Order which was sought to be quashed and the statutory authority for the making of which was impugned as unconstitutional, was discharged on consent by reason of an agreement between the applicant and the fifth named respondent.

4. That the applicant had no reasonable expectation that she would again be subjected to the making against her of an ex parte protection order. The District court proceedings against the applicant had come to an end by agreement. There was no evidence to show that any consequential or collateral sequelae of the ex parte Protection Order had damnified the applicant in the manner alleged or at all.

Reporter: L.O'S.

Citations:

K (D) V CROWLEY & ORS 2002 2 IR 744

DOMESTIC VIOLENCE ACT 1996 S4(3)

DOMESTIC VIOLENCE ACT 1996 S17(1)

DOMESTIC VIOLENCE ACT 1996 S5(1)

DOMESTIC VIOLENCE ACT 1996 S5(4)

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

DOMESTIC VIOLENCE ACT 1996 S5(2)

CONSTITUTION ART 40

VOLUNTARY PURCHASING V INSURCO LTD 1995 2 ILRM 145

ADAM V MIN JUSTICE 2001 3 IR 53

88 HARVARD LAW REVIEW 373 (1974)

DE ROISTE V MIN DEFENCE 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33

COOKE V WALSH 1984 IR 170

MURPHY V ROCHE 1987 IR 106

MCDONALD V BORD NA GCON 1964 IR 350

WHITE V DUBLIN CITY CO IRELAND & AG UNREP SUPREME 10.6.2004

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963

MCDAID V SHEEHY 1991 IR 1

ROCHE V MIN INDUSTRY 1978 IR 149

MINERALS DEVELOPMENT ACT 1940

M V AN BORD UCHTALA 1977 IR 287

TRIBE AMERICAN CONSTITUTIONAL LAW 3ED 2000 PAR 3

HALL V BEALS 396 US 45 (1969)

US PAROLE COMMISSION V GERAGHTY 445 US 388 (1980)

BOROWSKI V CANADA 1989 1 SCR 342

HONIG V DOE 484 US 305 1988

ROE V WADE 410 US 113 (1973)

MARQUETTE V MARQUETTE 1984 OK CIV APP 25 686 P 2D 990

SMITH V SMITH 145 NC APP 434 549 SE 2D 912

PIPER V LAYMAN 125 MD 745 726 A 2D 887

R V MORGENTALER (NO 2) 1988 1 SCR 30 44 DLR 4D 385

TRENBLAY V DAIGLE 1989 2 SCR 530 62 DLR 4D 634

ALGC V GOVERNMENT OF PRINCE EDWARD ISLAND 157 DLR 4D 523

1

Mr. Justice Hardiman delivered the 12th day of July, 2004.

2

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 7 th 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.
3

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
4

The events which form essential factual background to the present application took place in this period. On the 14 th May, 2002 a Protection Order was granted by the District Court in favour of the applicant and against Mr.Gallagher.

5

On the 18 th 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.

6

On the 21 st and 22 nd 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.

7

On the 30 th September, 2002, Ms Goold obtained, ex parte, an interim barring order against Mr. Gallagher. This was discharged by the District Court on the 16 th October, 2002.

8

On the 9 th October, 2002 this Court delivered its judgment in DK v.Crowley [2002] 2 IR 744. The Court declared that s.4(3) of the Domestic Violence Act, 1996was invalid having regard to the provisions of the Constitution.

9

On the 21 st 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.

10

On the 17 th December, 2002 the applicant obtained leave to bring the present judicial review proceedings.

11

On the 29 th January, 2003, the adjourned date of the charges against the applicant, the said charges were dismissed.

The agreement.
12

The agreement arrived at between the parties of the 21 stNovember, 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:-

13

2 "(1)-

...

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