M. D v E.H.D
| Jurisdiction | Ireland |
| Judge | Mr Justice Maurice Collins |
| Judgment Date | 03 May 2022 |
| Neutral Citation | [2022] IECA 102 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record Nos 2020/241 |
[2022] IECA 102
Haughton J
Collins J
Binchy J
Court of Appeal Record Nos 2020/241
THE COURT OF APPEAL
CIVIL
Judicial review – Leave – Divorce – Applicant seeking leave to seek judicial review – Whether the High Court applied too high a threshold for granting leave
Facts: The applicant sought leave to seek judicial review of an order made by Judge O’Callaghan in the Circuit Court in Ennis on 21 July 2020. The effect of that order was to bring to an end proceedings brought by the applicant in which he sought a declaration pursuant to s. 29 of the Family Law Act 1995 that his marriage to the intended respondent subsisted on the 30 December 2019, as well as a declaration that a decree of divorce dated 28 February 2006 (the Divorce Decree) in respect of that marriage was not entitled to recognition in the State (the section 29 Proceedings). By order of 2 November 2020, the High Court (Meenan J) refused leave to apply for judicial review. The applicant appealed to the Court of Appeal. In his notice of appeal, the applicant said that Meenan J wrongly considered the grounds before the Circuit Court and applied too high a threshold for granting leave. The issue, the applicant said, was that the Circuit Court failed to make “a very simple declaration regarding the status of my marriage”. The applicant said that he had a legal right to have the status of his marriage determined by the Court and the Circuit Court should have stated that his marriage was either valid or otherwise. He said that the leave procedure was intended to filter out vexatious applications and those doomed to fail and he said that his application did not fall into either of those categories. In his oral submissions, the applicant accepted that his immediate concern was with the orders that had been made by O’Higgins J on appeal relating to financial provision for the intended respondent and in particular the lump sum order that had been made and the effects of it on his financial position and his capacity to look after a minor child born subsequent to the Divorce Decree. However, his contention was that he was not properly divorced because the Divorce Decree was invalid because it was not compliant with the Constitution; if he succeeded in establishing that, the financial provision orders made by O’Higgins J would “fall away”. He said that proper procedures had not been followed and the divorce proceedings had not been served on him. He said that the Circuit Court Judge should have been told that he had appealed the earlier order of 9 February 2006 and, if he had, he would not have proceeded to make the Divorce Decree.
Held by Collins J that the applicant was clearly not entitled to pursue either of the reliefs sought in the section 29 proceedings and those proceedings were at all times doomed to fail; in the circumstances, the Circuit Court Judge was quite correct to refuse to enter judgment and was also correct to strike out the proceedings. Collins J added that there was no substance in any of the arguments made by the applicant as to the alleged invalidity of the Divorce Decree.
Collins J dismissed the appeal and refused leave to apply for judicial review.
Appeal dismissed.
JUDGMENT of Mr Justice Maurice Collins delivered on 3 May 2022
The Applicant, Mr D, seeks leave to seek judicial review of an Order made by Judge Brian O'Callaghan in the Circuit Court in Ennis on 21 July 2020. The effect of that Order was to bring to an end proceedings brought by the Applicant (Record number 2842F/2020) in which he sought a declaration pursuant to section 29 of the Family Law Act 1995 (“ the 1995 Act”) that his marriage to the intended Respondent (to whom I shall refer as Ms H) subsisted on the 30 December 2019, as well as a declaration that a decree of divorce dated 28 February 2006 (“ the Divorce Decree”) in respect of that marriage was not entitled to recognition in the State. I shall refer to those proceedings as “ the Section 29 Proceedings”.
The Applicant's essential complaint is that all that was before Judge O'Callaghan on 21 July 2020 was his motion for judgment in default of appearance and that the Judge wrongly struck out both that motion and the substantive proceedings without giving him an opportunity to open his case to the Court (Statement of Grounds, para (e)1) and without giving any reasons for its decision sufficient for him to properly consider his position (Statement of Grounds, para (e)2). The Applicant seeks certiorari of the Circuit Court's Order and an order of mandamus “ instructing” the Circuit Court to make the declarations sought by the Applicant. Alternatively, the Applicant invites the High Court to make those declarations of its own motion.
By Order of 2 November 2020, the High Court (Meenan J) refused leave to apply for judicial review. In his view, the Applicant had failed to set out “ the most basic facts” in his grounding affidavit. In particular, the Judge noted that the Applicant had appealed the Divorce Decree but that there was “ complete silence” as to what had happened to that appeal. He was also critical of the lack of information as to what precisely had occurred in the Circuit Court on 21 July 2020, who was in court and whether the other side (Ms H) had been represented. The Judge made it clear that the Applicant could renew his application on the basis of fuller evidence addressing the issues identified by him.
Instead of renewing his application to the High Court, the Applicant has appealed to this Court. When that appeal first came on for hearing before this Court, the Court directed the Applicant to provide further material and the Court has since been provided with an further Affidavit of the Applicant sworn on 15 June 2021 which exhibits a number of additional and material documents, including pleadings in family law proceedings involving the parties, as well as the pleadings in earlier judicial review proceedings to which it will be necessary to make further reference. The Court was also provided with copies of various orders made in those proceedings as well as a transcript of the hearing before Judge O'Callaghan in Ennis on 21 July 2020.
Before addressing that material further, it is appropriate to address the relevant threshold test applicable to applications for leave to apply for judicial review under Order 84 RSC.
What is before the Court is an application for leave to seek judicial review. The threshold test is that set out by the Supreme Court in G v Director of Public Prosecutions [1994] 1 IR 374.
The test in G v Director of Public Prosecutions is set out in the judgment of Finlay CJ (Blayney and Denham JJ concurring) at pages 377–378, as follows:
“It is, I am satisfied, desirable before considering the specific issues in this case to set out in short form what appears to be the necessary ingredients which an applicant must satisfy in order to obtain liberty of the court to issue judicial review proceedings. An applicant must satisfy the court in a prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:
(a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20 (4).
(b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review.
(c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks.
(d) That the application has been made promptly and in any event within the three months or six months time limits provided for in O. 84, r. 21 (1), or that the Court is satisfied that there is a good reason for extending the time limit.
(e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure.”
Finlay CJ emphasised that, in addition to these “ conditions or proofs”, the court had a general discretion, observing that “judicial review in many instances is an entirely discretionary remedy which may well include, amongst other things, consideration of whether the matter concerned is one of importance or of triviality and also as to whether the applicant has shown good faith in the making of an ex parte application” (at page 378).
While the G threshold is a relatively low one, it is nonetheless real and the filtering function of the High Court (and of this Court on appeal) is an important one.
The High Court Judge was understandably critical of the paucity of the evidence put before him and in particular the absence of any adequate explanation as to what happened to the Applicant's appeal against the Circuit Court Order for Divorce made on 28 February 2006. The picture is a good deal clearer now as a result of the further material furnished to the Court.
On 9 February 2006 judicial separation proceedings (Record No 619F) came on for hearing before Judge James O'Donoghue in the Circuit Court in Ennis. While the Civil Bill is not amongst the papers before the Court, Mr D was the applicant in those proceedings and the applicant for judicial separation. Mr D was represented by solicitor and counsel. Ms H was also legally represented. Various orders were made by the Judge on 9 February pursuant to the Judicial Separation and Family Law Reform Act 1989 and the 1995 Act. Mr D was present in court on 9 February and according to him (per para 5 of his affidavit of 9 July 2021), the Judge raised an issue...
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