Hempenstall (The State) v Judge Shannon and District Justice Reddin

• Jurisdiction: Ireland
• Judgment Date: 18 March 1936
• Date: 18 March 1936
• Court: Supreme Court (Irish Free State)

Supreme Court.

The State (Hempenstall) v. Judge Shannon and District Justice Reddin. (No. 2)

THE STATE (at the prosecution of James Hempenstall)

and

JUDGE SHANNON K.C. and DISTRICT JUSTICE REDDIN, and in the Matter of the Courts of Justice Act, 1924 (No. 2) (1)

Practice - Security for costs - Appeal to Supreme Court - Appeal from discharge of conditional order of certiorari - Jurisdiction to order security - Appellant in employment in England - No residence or assets within jurisdiction - Non-payment of maintenance by husband - Failure to support wife - "Special circumstances" - Rules of the Supreme Court (Ir.), 1905,Or. LVIII, r. 15; Or. LXXXIV, r. 181.

Motion, on behalf of the respondent, for an order that the appellant should give security within such time as might be limited by such order for the costs of and occasioned by his appeal from the judgment and order of the High Court given and made 31st January, 1936 (2);and that until such security should be given the said appeal should be stayed; and that in default of such security being given within the said time the said appeal should stand dismissed, without further order, with costs to be taxed and paid by the appellant to the respondent, and for an order dealing with the costs of the application.

The facts were fully set out in the affidavit of Seán Ó hUadhaigh ó huadhaigh, solicitor for the respondent, filed in support

of the application, the material parts of which were as follows:—

"2. On the hearing of a complaint wherein the said Mabel Hempenstall was complainant and the prosecutor was defendant, the above named District Justice [District Justice Reddin], sitting at Howth on 20th November, 1933, made an order under the Married Women (Maintenance in case of Desertion) Act, 1886, that the prosecutor should pay to the said Mabel Hempenstall the sum of 25s. per week, commencing on 4th December, 1933, together with £3 3s. 0d. costs payable forthwith.

3. The prosecutor appealed from said order and the appeal was heard at Dublin by the Circuit Court Judge on 23rd January, 1934, when the decision of the District Justice was affirmed but the order varied by directing payment from 27th January, 1934. The said sum of £3 3s. 0d. for District Court costs and £5 5s. 0d. costs of the appeal were ordered to be paid by 24th February, 1934.

4. No payments were made on foot of said orders, and on the 10th day of February, 1934, a Civil Bill was issued for £2 10s. 0d., the amount of accrued arrears and £8 8s. 0d. costs already awarded, and a Decree was obtained thereon on 24th July, 1934, for £2 10s. 0d. and £4 11s. 6d. costs. An appeal by the prosecutor therefrom is pending before the High Court and has been adjourned pending the decision of the appeal before this Court.

On the 28th day of July, 1934, a further Civil Bill for £30, the amount of arrears subsequently accrued, was issued. The hearing of this civil bill has been adjourned by the Dublin Circuit Court Judge pending the conclusion of the present proceedings.

5. On 27th July, 1934, a conditional order for certiorariwas obtained by the prosecutor for the purpose of having quashed the order of the District Justice of 20th November, 1933, and the order of the Circuit Court Judge of 23rd January, 1934, on the ground that the District Justice had no power to award costs on the hearing of the complaint. A copy of the said conditional order was served on my firm for Mrs. Mabel Hempenstall in September, 1934.

6. By notice, dated 17th December, 1935 (pursuant to leave granted by order of the High Court on 11th December, 1935), the said Mabel Hempenstall moved to show cause against the conditional order being made absolute and to have the said conditional order discharged. The motion was heard by the High Court (Sullivan P., Hanna and O'Byrne JJ.) on 31st January, 1936, and the Court unanimously allowed the cause shown and discharged the conditional order...