Keating v Crowley and Others

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 09 October 2002
• Neutral Citation: [2002] IESC 66
• Court: Supreme Court
• Date: 09 October 2002

[2002] IESC 66

THE SUPREME COURT

Keane C.J.

Denham J.

Murphy J.

Murray J.

Hardiman J.

220/00

KEATING v. CROWLEY & ORS

BETWEEN:

DAVID KEATING

Applicant

and

JUDGE TIMOTHY CROWLEY, IRELAND AND THE ATTORNEY GENERAL

Respondents

And By Order

THE DIRECTOR OF PUBLIC PROSECUTIONS

Notice Party

And By Order

LORRAINE KEATING

Notice Party

Citations:

DOMESTIC VIOLENCE ACT 1996 S4(1)

DOMESTIC VIOLENCE ACT 1996 S4(2)

DOMESTIC VIOLENCE ACT 1996 S4(3)

CONSTITUTION ART 38.1

CONSTITUTION ART 40.3

CONSTITUTION ART 41.1

CONSTITUTION ART 50.1

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 41.1.1

CONSTITUTION ART 41.1.2

SPUC, AG V OPEN DOOR COUNSELLING LTD (NO 2) 1994 2 IR 333

HAUGHEY, RE 1971 IR 217

CHILDREN ACT 1908

EAST DONEGAL CO-OP LTD V AG 1970 IR 317

DOMESTIC VIOLENCE ACT 1996 S4

RSC O.52 r3

O'CALLAGHAN V CMRS OF PUBLIC WORKS 1985 ILRM 364

LYNCH, STATE V COONEY 1982 IR 337

IRISH FAMILY PLANNING ASSOCIATION V RYAN 1979 IR 295

M(MURPHY) V M(G) UNREP SUPREME 18.10.2001

FAMILY LAW (PROTECTION OF SPOUSES & CHILDREN) ACT 1981

DOMESTIC VIOLENCE ACT 1996 S3(1)

DOMESTIC VIOLENCE ACT 1996 S3(2)(A)

DOMESTIC VIOLENCE ACT 1996 S3(2)(B)

DOMESTIC VIOLENCE ACT 1996 S3(6)

DOMESTIC VIOLENCE ACT 1996 S3(8)

DOMESTIC VIOLENCE ACT 1996 S10

DOMESTIC VIOLENCE ACT 1996 S17(1)

DOMESTIC VIOLENCE ACT 1996 S18(1)(A)

DOMESTIC VIOLENCE ACT 1996 S13

DCR O.59 r6

CIRCUIT COURT RULES (NO 1) (DOMESTIC VIOLENCE ACT 1996) 2000 SI 104/2000

MCDONALD V BORD NA GCON (NO 2) 1965 IR 217

CONSTITUTION ART 40

MELLING V O MATHGHAMHNA & ANOR 1962 IR 1

HEANEY V IRELAND 1996 1 IR 580

CHILD CARE ACT 1991 S17

R (MARTIN) V MAHONY 1910 2 IR 695

KILLEEN V DPP 1997 3 IR 218

Synopsis:

FAMILY LAW

Constitution

Statute - Domestic violence - Validity - Whether legislation unconstitutional - Interim barring order - No time limit on effect of interim barring order - Effect of interim barring order on subsequent litigation - Whether manner in which abridgement of right to be heard effected proportionate - Whether constitutional right to due process abridged by granting of interim barring order on ex parte application - Domestic Violence Act, 1996 section 4(3) - Bunreacht na hÉireann, 1937, Articles 38.1, 40.3, 41.1 and 50.1(220/2000 - Supreme Court - 9/10/2002)

Keating v Crowley - [2002] 2 IR 744 - [2003] 1 ILRM 88

Facts: The proceedings arose out of the granting by the first respondent of an interim barring order pursuant to the Domestic Violence Act, 1996 on the application ex parte of the appellant’s wife, the second notice party. The statute conferring jurisdiction on the District Court provided that such interim order was to continue until the determination by the court of the application for a barring order, to be heard inter partes, which the first respondent had fixed for hearing three months into the future. The appellant was given leave to apply by way of judicial review for, inter alia, a declaration that subsections 4(1), (2) and (3) of the Domestic Violence Act, 1996 were invalid as being repugnant to Articles 38.1, 40.3, 41.1 and 50.1 of the Constitution. The High Court refused the reliefs sought. The appellant appealed that order.

Held in allowing the appeal and substituting for the order of the High Court an order granting a declaration that section 4(3) of the Act of 1996 was invalid having regard to the provisions of the Constitution and an order of certiorari quashing the interim barring order of the District Court that the procedures prescribed by subsections 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 made ex parte was to continue in force deprives the respondents to such applications of the protection of the principle of audi alteram partem in a manner and to an extent which is disproportionate, unreasonable and unnecessary. A factor to be considered in this regard is that the granting of an interim order in the absence of the defendant may in such cases critically tilt the balance of the entire litigation, particularly in regard to determining a custody issue, against him or her to an extent which may subsequently be difficult to redress.

1 9th day of October 2002 by Keane C.J.

Keane C.J.

Introduction

2 On the 3 ^rd February 1999, the applicant was given leave by the High Court to apply by way of judicial review for inter alia a declaration that subsections (1), (2), and (3) of the Domestic Violence Act, 1996,(hereafter “the 1996 Act”) were invalid insofar and to the extent that they were repugnant to the provisions of the Constitution and, in particular, Article 38.1, 40.3, 41.1 and 50.1.

3 The proceedings arose out of the granting by the first named respondent on the 6 ^th November, 1998 of an interim barring order pursuant to the 1996 Act 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 1996 Act were unconstitutional, the applicant was given leave to apply for judicial review by way of certiorari in respect of the interim barring order.

4 A statement of opposition having been filed on behalf of the respondents, a notice of motion seeking the reliefs in question came on for hearing before Kelly J. In an ex tempore judgment delivered on the 2 ^nd 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. 23 ^rdNovember, 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.

5 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 hEireann." In the written submissions lodged on behalf of the applicant in this court, it is argued that s.4(1), (2) and (3) of the 1996 Act are repugnant to Articles 38(1), 40.1 and 40.3.1 and 2 and Article 41.1.1 and 2.

6 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 named 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 in Attorney General (SPUC) -v- Open Door Counselling Limited (No 2) [1994] 2 IR 333, the court should not, other than in the most exceptional circumstances dictated by the necessity of justice, consider an issue of constitutional law which had not been fully argued and decided in the High Court. This ground for resisting the appeal by the applicant was also relied on by Mr Dermot McGuinness S.C. on behalf of the respondents at the outset of the oral hearing of the appeal.

7 In the note of his judgment in the High Court which was approved by him, the learned High Court judge says

"The applicant alleges that s.4(1), (2) and (3) of [the 1996 Act] is unconstitutional. In fact, the whole thrust of the applicant's case was directed to s.4(3)."

8 Again, at p.6 of the note of his judgment, the following appears

"For the applicant, it was alleged that s.4(3) is offensive to the Constitution, constitutes an infringement of the applicant's right to cross-examine or confront a complainant, offends the audi alteram partem principle, constitutes an infringement of the applicant's right as a human person to be held equal before the law, and invidiously discriminates against the applicant in the conduct of his defence.

It is clear that by its very definition an interim barring order can only exist for a limited period of time. There is no time limit mentioned either in the section or in the Act. In the order made by the District Court on the 6 ^th November 1998 the return date given for the full hearing was not until the 3 ^rd February, 1999, a period of almost three months. The applicant would in my view be on good ground in suggesting that the subsection was constitutionally offensive if an ex parte order with such serious consequences were to remain in place for a period of three months. However, that is not the full picture."

9 The learned High Court judge then went on to consider the consequences for the applicant's claim of the fact that, while he had applied for the interim barring order to be discharged, he never proceeded with that application.

10 It is, accordingly, clear from the judgment that the question as to whether s.4(l), (2)and (3) of the 1996 Act, or any part thereof, are invalid having regard to the provisions of the Constitution was in fact the subject of arguments in the High Court. Nor can there be any question as to the locus standi of the applicant to advance such an argument. The court is also satisfied that the notice of appeal made it clear that the applicant would be seeking to reverse the order of the High Court insofar as it declined to grant a declaration that the provisions in question were unconstitutional.

11 It was not suggested on behalf of the respondents in this court that, in the event of this court being satisfied...