Kildare County Council v Reid

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 29 November 2018
• Neutral Citation: [2018] IECA 370
• Date: 29 November 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 370 Record Number: 2016/442

[2018] IECA 370

THE COURT OF APPEAL

Peart J.

Peart J.

Irvine J.

Whelan J.

Neutral Citation Number: [2018] IECA 370

Record Number: 2016/442

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTIONS 57 AND 58 OF THE WASTE MANAGEMENT ACTS 1996-201

BETWEEN:

KILDARE COUNTY COUNCIL

PLAINTIFF/RESPONDENT

- AND -

GERARD REID

DEFENDANT/APPELLANT

Adjournment – Preliminary issue – Unfair hearing – Appellant seeking to appeal against an order of the High Court refusing an application for an adjournment of the hearing of a preliminary issue – Whether an unfair hearing resulted from the trial judge determining the preliminary issue in the defendant’s absence

Facts: The defendant/appellant, Mr Reid, appealed to the Court of Appeal against an order of the High Court (White J) refusing an application for an adjournment of the hearing of a preliminary issue that had been directed by the President of the High Court to be heard as to the meaning of “waste” for the purposes of the Waste Management Acts 1996-2015. While the grounds of appeal were set out in some length, and to a large extent addressed matters not germane to the appeal against the refusal to adjourn the matter, the essential basis relied upon in this appeal was that what followed was an unfair hearing which resulted from the trial judge determining the preliminary issue in the defendant’s absence, in the face of the medical evidence to the effect that he was medically unfit to deal with the matter. The defendant asserted that the outcome of the preliminary issue would have been different if he had been heard.

Held by Peart J that he found no error in the decision of the trial judge to refuse to adjourn the hearing of the preliminary issue directed to be determined, and to proceed with the hearing even though the defendant had decided to allow the matter to proceed in his absence.

Peart J held that he would therefore dismiss the appeal.

Appeal dismissed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 29TH DAY OF NOVEMBER 2018

1 This an appeal against an order of the High Court (White J.) refusing an application for an adjournment of the hearing of a preliminary issue that had been directed by the President of the High Court to be heard as to the meaning of ‘waste’ for the purposes of the Waste Management Acts 1996-2015.

2 The hearing of the preliminary issue had been fixed for some time. The defendant was not legally represented and appeared in person, accompanied by his daughter. She made an application on her father's behalf that the matter would not proceed on account of the fact that her father was not well enough to deal with the matter.

3 There was some medical evidence adduced in the form of a brief report from a clinical psychologist dated the 1st July 2016 indicating that Mr Reid suffered from developmental dyslexia which had led to from an early age to the development of post traumatic stress disorder which has remained untreated. The report stated that this condition had interfered with many aspects of his life, including his capacity to deal with legal matters, and to instruct a legal team. It went on to state that Mr Reid was ‘unable to competently instruct barristers and solicitors, to anticipate the potential events in a courtroom or to fluently give evidence on his own behalf’.

4 It is not very clear from the transcript that Ms. Reid actually applied for an adjournment as such, or whether she simply wanted the entire proceedings stayed in some way until such time as her father was well enough to deal with the matter. She too was unfamiliar with the legal environment and its terminology. However, the trial judge clearly treated it as a last minute application for an adjournment, and that is what is reflected in the perfected court order. The application had not been flagged to the plaintiff counsel in advance, and neither had the medical certificate being relied upon been furnished in advance despite the fact that it had been obtained some ten days previously.

5 Having heard what was put forward by Ms. Reid and having heard counsel for the plaintiff, the trial judge refused to adjourn the matter. Immediately thereafter Ms Reid left the Courtroom accompanied by her father stating, according to the transcript ‘No disrespect – but there is no need for us to be here’.

6 While the grounds of appeal are set out in some length, and to a large extent address matters not germane to the appeal against the refusal to adjourn the matter, the essential basis relied upon in the present appeal is that what followed was an unfair hearing which resulted from the trial judge determining the preliminary issue in the defendant's absence, in the face of the medical evidence to the effect that he is medically unfit to deal with the matter. The defendant asserts that the outcome of the preliminary issue would have been different if the defendant had been heard.

7 Before setting out some of the very protracted history of this case, I should note that on this appeal the defendant was represented by solicitor, as well as senior and junior counsel.

Background

8 These proceedings commenced in 2011 when the council brought an application for orders pursuant to ss 57 and 58 of the Waste Management Act, 1996 2015 the appellant to cease placing the waste on his lands, and to remediate the same. The waste activity complained of at the time this application was made comprised some 1,500 end of life motor vehicles, as well as scrap metal and construction and demolition waste. In a replying affidavit filed in February 2012and sworn on his behalf by an environmental consultant, it was stated that the appellant was ‘in the process of removing vehicles at the rate of 30 to 40 per week’ and that he sought to retain ‘250 to 300 of the most valuable of the scrap vehicles on site’ as a source of working capital for his future plans for the site. In relation to scrap metal, plastic and wood, this affidavit stated that it could be removed within six months on an agreed plan with Kildare County Council.

9 When the council's application came before the High Court on the 13th June 2012, at a time when the appellant was legally represented, an order was made by consent which directed the appellant to:

‘remove all waste vehicles and other scrap metal from the site to authorised treatment facilities, at a rate of a minimum, 300 vehicles per month, and in any event before 13th November 2012, such removal to be evidenced by the provision by the respondent of Certificates of Destruction or, in respect of waste vehicles other than end of life vehicles, sufficient documentary evidence of collection and destruction.’

10 In addition, the same order required the appellant to ‘discontinue holding construction and demolition waste’ and to ‘excavate, screen and remove all construction and demolition waste from the site in a manner designed to prevent and/or limit environmental pollution’.

11 Following the making of that order some progress was made by the appellant to comply by the 13th November 2012, but the council were not satisfied that sufficient efforts were being made. This led to the council serving a copy of the said order on the appellant which contained a penal endorsement, being a pre-requisite to any application the council might make to attach and commit the appellant for failure to comply with the said order. Service was affected on the 18th October 2012.

12 On the 29th January 2013 the council issued a notice of motion seeking to have the appellant attached and brought before the High Court to answer for his contempt in respect of his failure to comply with the order made. On that application the appellant saw a replying affidavit which acknowledged that there had been delays in dealing with the waste vehicles, and set out the steps he was taking in respect of the construction and demolition waste.

13 Nevertheless, on the 20th of March 2013 an order was made by the High Court (Kearns P.) declaring that the appellant was guilty of contempt and providing that if the appellant had not substantially complied with the requirements of the original order by the 15th July 2013, the council was at liberty to issue an order of committal against him and have him imprisoned for a period of three months. The matter was adjourned until the 15th July 2013 in the circumstances. It appears that a number of further adjournments were granted in order to allow the appellant more time to comply. It appears that while certain steps were taken to remove end-of-life vehicles from the site, the appellant had continued his activities on the site and no steps had been taken to remove the construction and development waste.

14 On the 18th December 2013 a further contempt order was made in similar terms to the previous contempt order save that the appellant was required to comply with the original order by the 31st January 2014 in default of which the council was at liberty to issue an order of committal for the imprisonment of the appellant for a period of three months.

15 On the 30th January 2014 the appellant swore an affidavit referring to what he considered to be significant progress in removing waste vehicles from the site....