Kelly v National University of Ireland Dublin aka UCD

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 26 May 2017
• Neutral Citation: [2017] IECA 161
• Court: Court of Appeal (Ireland)
• Docket Number: [C.A. No. 747 of 2014],Neutral Citation Number: [2017] IECA 161 Appeal No. 2014 747 ARTICLE 64 TRANSFER
• Date: 26 May 2017

BETWEEN/

PATRICK KELLY

PLAINTIFF/ APPELLANT

- AND -

NATIONAL UNIVERSITY OF IRELAND DUBLIN AKA UNIVERSITY COLLEGE DUBLIN (UCD)

DEFENDANT/ RESPONDENT

- AND -

THE DIRECTOR OF THE EQUALITY TRIBUNAL

NOTICE PARTY

[2017] IECA 161

Finlay Geoghegan J.

Finlay Geoghegan J.

Peart J.

Hogan J.

Neutral Citation Number: [2017] IECA 161

Appeal No. 2014 747

ARTICLE 64 TRANSFER

THE COURT OF APPEAL

Jurisdiction – Discovery – Documents – Appellant seeking discovery of certain categories of documents from the respondent – Whether the jurisdiction of the Court of Appeal to hear and determine the appeal was excluded by s. 39 of the Courts of Justice Act 1936

Facts: The appellant, Mr Kelly, appealed to the Court of Appeal against an order of the High Court (Hedigan J) of 29th January, 2013. The proceedings were an appeal from the Circuit Court. The appeal in question was an appeal from an order made by the then President of the Circuit Court, Deery P, on 12th March, 2007 in Circuit Court proceedings in the Dublin Circuit. The order refused an application of the appellant under O. 57A, r. 6(6) of the Circuit Court Rules seeking discovery of certain categories of documents from the respondent, University College Dublin (UCD). Mr Kelly’s submissions on jurisdiction were: (i) The order made by the High Court on 29th January, 2013 was not made on an appeal from the Circuit Court to the High Court pursuant to Part IV of the Courts of Justice Act 1936; (ii) Accordingly, s. 39 of the 1936 Act does not exclude an appeal from the High Court to the Court of Appeal; (iii) The High Court had no jurisdiction to make the order made.

Held by Finlay Geoghegan J that: (i) The order of 29th January, 2013 was not a decision of the High Court on an appeal under Part IV of the 1936 Act and accordingly the jurisdiction of the Court of Appeal to hear and determine the appeal therefrom is not excluded by s. 39 of the 1936 Act; (ii) The High Court had no jurisdiction to make orders of the type made in the order of 29th January, 2013 either staying the substantive proceedings before the Circuit Court (an appeal pursuant to s. 28 of the Equal Status Act 2000) or restraining the plaintiff from issuing further proceedings or applications in the existing circuit proceedings.

Finlay Geoghegan J held that the appeal would be allowed and an order made vacating the order of the High Court of 29th January, 2013. The Court would hear the parties in relation to costs and expenses in the High Court and in the Court of Appeal.

Appeal allowed.

JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 26th day of May 2017

1 This appeal raises important questions relating to the jurisdiction of the Court of Appeal to hear an appeal from a judgment and order of the High Court purportedly made in proceedings which commenced as a circuit appeal. It also raises important questions in relation to the jurisdiction of the High Court when hearing an appeal from the Circuit Court pursuant to s. 37 of the Courts of Justice Act 1936 (‘Act of 1936’).

2 The appeal is against an order of the High Court (Hedigan J.) of 29th January, 2013 made for the reasons set out in a written judgment [2013] IEHC 23 delivered on the same day. The order was made in proceedings with a record no. [2007 No. 52 CA]. As the record number indicates, the proceedings were an appeal from the Circuit Court. The appeal in question was an appeal from an order made by the then President of the Circuit Court, Deery P., on 12th March, 2007 in Circuit Court proceedings [2006/07275] in the Dublin Circuit. The order refused an application of the plaintiff/appellant (to whom I will refer as ‘Mr. Kelly’) under O. 57A, r. 6(6) of the Circuit Court Rules seeking discovery of certain categories of documents from the defendant/respondent (to which I will refer as ‘UCD’).

3 Apart from costs, the order of the High Court of 29th January, 2013 was:-

‘IT IS ORDERED that all proceedings herein in the Circuit Court and in this Court be stayed permanently and that the said Applicant [Mr. Kelly] be prohibited from issuing any further applications or proceedings arising from the said Applicants application to UCD in 2001 and 2002 against the said Respondent [UCD] or any of its servants or agents or any of the legal advisors of the said Respondent without obtaining prior consent of the High Court such consent to be applied for in writing to the Principal Registrar of the High Court.’

Background facts

4 Prior to considering the jurisdictional issues raised in the appeal it is necessary to set out briefly the background facts and the lengthy and protracted procedures in the Circuit Court and the High Court which led to the hearing of this appeal.

5 In 2002 Mr. Kelly, having applied, was not offered a place for a Masters in Social Science in UCD for the academic period 2002 – 2004. Mr. Kelly claimed that he was more qualified than the least qualified female applicant for the course and also made complaints in relation to the interview process. He commenced a formal complaint in 2002 to the Director of the Equality Tribunal pursuant to the Equal Status Act 2000. In 2006, the Equality Tribunal concluded that Mr. Kelly had failed to establish prima facie discrimination on gender grounds. Some days later Mr. Kelly appealed that decision pursuant to s. 28 of the Equal Status Act 2000 to the Circuit Court, Dublin Circuit, which proceeding had a record number 2006/07275.

6 In those Circuit Court proceedings, Mr. Kelly brought an application pursuant to O. 57A, r. 6(6) of the Circuit Court rules for discovery of certain documents. That application was refused in 2007. In March, 2007 Mr. Kelly issued a notice of appeal to the High Court against the refusal of his application for discovery. The notice of appeal was to the High Court sitting in Dublin and specified to be an ‘appeal under Part IV of the Courts of Justice Act 1936 and O. 61, r. 2 of the Rules of the Superior Courts’.

7 In the High Court appeal [2007 No. 52 CA], Mr. Kelly made a number of applications including an application for a reference to the Court of Justice pursuant to Article 234 [now Article 267 TFEU] for a preliminary ruling. That was initially refused on grounds that it was premature and the matter had to be determined in accordance with Irish law. On 14th March, 2008 the High Court (McKechnie J.) refused the discovery and disclosure of the documents sought by Mr. Kelly in his application to the Circuit Court in accordance with Irish law but the preliminary ruling to CJEU was left open. In January, 2010 the High Court (McKechnie J.) made a reference to the Court of Justice under Article 267 TFEU seeking a preliminary ruling on five questions. Suffice to say that the answers given did not oblige the Irish High Court to make an order for discovery or disclosure of the documents in favour of Mr. Kelly.

8 It appears there were then further applications to the High Court. These included applications to set aside earlier judgments of McKechnie J. Those applications were dealt with by Hedigan J.

9 On 9th May, 2012 the High Court (Hedigan J.) in the same circuit appeal [2007 No. 52 CA] made inter alia an order that:-

‘the provisional Judgment of Mr Justice McKechnie dated the 31st July 2008 in which he decided inter alia that the documents sought by the Plaintiff in his appeal to the Circuit Court were confidential and that UCD did not have to disclose the documents in question is now no longer deemed provisional but has become the final decision in this matter.’

10 It appears from the order of 9th May, 2012 that on the same day, the High Court considered ‘the Court's Motion restraining the Plaintiff issuing further proceedings herein’. The order records that the Court noted,

‘the sworn Undertaking of the Plaintiff to make no further interlocutory applications in these proceedings to the Circuit or High Court against either

(i) University College Dublin

(ii) Its employees both present or past

(iii) Mr. Eugene O'Sullivan solicitor for UCD’

The order also noted that the undertaking was subject to the plaintiff's right of appeal on a point of law from the decision of the Circuit Court in the event that his appeal from the Equality Tribunal is unsuccessful and any application in relation to costs.’

11 The same order of the 9th May included,

‘Liberty to the Defendant to issue a Motion in relation to a restraining Order herein’.

12 The hearing of the substantive Circuit Court proceeding, namely, the appeal brought by Mr. Kelly pursuant to s. 28 of the Equal Status Act 2000, commenced before the Circuit Court on 23rd October, 2012. On 24th October UCD applied to dismiss the appeal and Mr. Kelly then made an allegation of bias against the Circuit Court trial judge. UCD were granted an adjournment by the Circuit Court trial judge, and on 24th October, 2012 applied ex parte to the High Court (Hedigan J.) and were granted an order giving liberty to issue and serve a notice of motion seeking to re-enter the original circuit appeal proceeding [2007 No. 52 CA] and other restraining reliefs. The motion was initially returnable on 25th October, 2012. Thereafter it was adjourned with directions in relation to affidavits and submissions, and heard on affidavit evidence with submissions on 23rd November, 2012.

13 The reliefs sought by UCD in the motion brought in the circuit appeal proceedings form the refusal of discovery [2007 No. 52 CA] were:

(i.) An order permanently staying the within proceedings in the Circuit Court and in this Honourable Court.

(ii.) An order permanently restraining the Applicant from taking any further steps in these proceedings against the Respondent, its servants or agents and/or current, former or retired employees.

(iii.) An order permanently restraining the Applicant from instituting any further proceedings...