L.M. v Niall Rooney County Registrar of Waterford
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 14 July 2021 |
| Neutral Citation | [2021] IECA 195 |
| Docket Number | Record Number 2020/107 |
| Year | 2021 |
| Court | Court of Appeal (Ireland) |
and
[2021] IECA 195
Noonan J.
Murray J.
Macgrath J.
Record Number 2020/107
High Court Record Number: 2018/875JR
THE COURT OF APPEAL
JUDGMENT of Mr. Justice Noonan delivered on the 14th day of July, 2021
This appeal is brought by Mr. M. from the judgment of the High Court (Meenan J.) of the 31st January, 2020 and the associated order dated 13th March, 2020 whereby he refused Mr. M. leave to seek judicial review.
For the purposes of this judgment, it is unnecessary to detail the extraordinarily lengthy background to the underlying family law proceedings, which now span almost two decades. Some small insight is given to that background in an affidavit sworn by Colm Burke, the notice party's solicitor, on the 30th January, 2019 where at that stage, the proceedings had continued for 17 years and taken upwards of 135 days in court, by any standards a remarkable statistic, and one since exceeded.
As an adjunct to the earlier judicial separation and divorce proceedings heard by the Circuit Court, Ms. M. issued an equity civil bill in 2014 seeking an order for partition and sale of certain lands which had been the subject of a prior property adjustment order in the family proceedings. The lands in question were situate in Ballinhassig, Co. Cork and comprised parcels contained in two folios. On the 14th April, 2015 the Circuit Court in Cork made an order for sale of these lands with the proceeds to be equally apportioned between the parties. Mr. M. appealed that decision to the High Court which dismissed the appeal on the 26th January, 2016 and affirmed the order of the Circuit Court.
It then transpired that one of the parcels of land had been sold by Mr. M. some years earlier, a fact not previously disclosed to the court or Ms. M. Some days later on the 29th January, 2016, the High Court granted a Mareva injunction restraining Mr. M. from dealing with the proceeds and directing him to pay them into court. On the 25th January, 2017, the court made an order for distribution of the proceeds directing that a sum of €75,000 be retained in court from Mr. M's share pending the taxation of Ms. M's costs in the partition suit.
The taxation was carried out by the respondent on the 24th and 25th June, 2018 over the course of two full days ending, as noted by the trial judge, at 20:00hrs on the 25th.
Mr. M. represented himself throughout at the taxation. Ms. M. was represented by Mr. Burke. A month later, on the 24th and 25th July, 2018, the respondent prepared the certificates of taxation and at the request of Mr. M., subsequently on the 2nd August, 2018 provided a statement of his reasons in respect of the taxations both concerning the Circuit Court hearing and the appeal to the High Court. At no stage during this time frame did Mr. M. raise any issue concerning the process adopted by the respondent in which he had participated fully. Nor did he raise any complaint about any perceived unfairness to him in the course of that process. Most importantly, Mr. M. did not seek to appeal the certificates of taxation, as was his right.
Instead, on the 24th October, 2018, Mr. M. filed a statement of grounds in support of an application for leave to seek judicial review, the third such application brought in this litigation. In the statement of grounds, Mr. M. seeks an order quashing the certificates of taxation and seeking to have the taxation remitted for rehearing before another County Registrar. He seeks presumptive orders directing how such future taxation should be carried out. The application for leave was moved ex parte in the normal way before the High Court on the 12th November, 2018 and as a result, the court directed that the application for leave be made on notice to the respondent and Ms. M.
Mr. M. identifies 13 grounds upon which relief is sought and I think it is fair to say that the primary ground relied upon is that the respondent failed to adopt the procedure governing taxation provided for by O. 99, r. 38 of the Rules of the Superior Courts (RSC), as it then applied, which allowed for a preliminary determination by the Taxing Master followed by the bringing in of objections to those determinations. Accordingly, in the High Court, the Taxing Master follows a two-stage process which requires him or her to give reasons for the initial determinations to enable the opposing party to consider those reasons before bringing in objections – see D.M.P.T. v Taxing Master Moran [2015] 3 I.R. 224.
Mr. M.'s essential complaint is that the respondent followed a one-stage process and therefore he was deprived of an opportunity to bring in objections and thus, of fair procedures. There are what appear to be two subsidiary grounds raised, first being that the respondent considered matters which were res judicata concerning earlier proceedings between the same parties, which I take to be a suggestion that he considered irrelevant matters, and secondly that there was objective bias in the manner in which the taxation process was conducted.
The application was heard by Meenan J. on the 20th June, 2019. Prior to that, Mr. M. issued a motion on the 14th May, 2019 seeking to amend his statement of grounds by including a challenge to the constitutionality of s. 27 of the Courts and Court Officers Act, 1995 which provides for certain powers of the Taxing Master of the High Court. His application was unsuccessful. No appeal was brought. Following the hearing, arising out of references to certain documents, the trial judge directed that Mr. M. be furnished with the relevant additional documents and gave him liberty to deliver further written submissions on those documents. Mr. Burke duly swore a supplemental affidavit on the 17th July, 2019 exhibiting the relevant correspondence.
However, instead of following the course directed by the trial judge, Mr. M. issued another notice of motion in August 2019 seeking a range of reliefs including discovery, disclosure of documents, leave to file further submissions and adduce additional evidence. That application was heard by the trial judge on the 30th August, 2019 and was refused. Mr. M. did not appeal the refusal although it would appear that he purports to do so now. He is however, now well out of time to bring such an appeal.
The trial judge delivered a detailed written judgment on the 31st January, 2020. One aspect of the judgment was concerned with whether Mr. M. should be granted an extension of time within which to apply for leave and the judge concluded that he should extend the time. There is no cross-appeal in respect of that determination.
The judge concluded that there was nothing in the evidence adduced before him to suggest that the taxation was conducted otherwise than entirely fairly and that the correct procedures were followed. He noted that Mr. M. had been furnished well in advance of the hearing with all relevant documentation and was afforded every opportunity to make any submissions he wished to. However, the trial judge identified the fundamental difficulty with Mr. M.'s leave application as a confusion on his part between the rules applicable to taxation in the Circuit Court and those relevant to the High Court exercising its original jurisdiction. Since the decision in D.M.P.T. referred to the latter, it was in the view of the trial judge irrelevant to this application. Having identified the appropriate test for the grant of leave to seek judicial review, the trial judge went on to conclude that the appellant had not established any arguable case and he refused the application.
In his notice of appeal, the appellant purports to appeal not just the judgment and order of the 31st January, 2020, but also the order to which I have referred of the 30th August, 2019 and two other orders of the 25th and 23rd of July, 2019. This court cannot entertain the latter purported appeals which are long since out of time and in circumstances where no application has been made by Mr. M. to extend the time for appealing those orders.
The essential ground of appeal is that the trial judge was in error in considering that the then current O. 99, r. 38 of the RSC was not applicable to the respondent in this case. There is also a complaint that the trial judge refused to allow Mr. M. to effectively reargue his case and introduce new evidence after the hearing had concluded but before judgment was delivered. The court cannot have regard to that contention as that order was not appealed within the time permitted. Many of Mr. M.'s other complaints relate to the refusal of his motion in August 2019. There is also a complaint that the trial judge failed to give reasons for his decision, but this is not elaborated upon and is impossible to understand given that a written judgment was delivered addressing all relevant issues.
In his notice of...
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