McIlwraith v Fawsitt

• Jurisdiction: Ireland
• Judge: FINLAY C.J.
• Judgment Date: 01 January 1990
• Neutral Citation: 1989 WJSC-SC 1937
• Docket Number: [1987 No. 114 J.R.]
• Court: Supreme Court
• Date: 01 January 1990

MCILWRAITH v. FAWSITT

JUDICIAL REVIEW

BETWEEN

MAURICE McILWRAITH

Applicant

and

HIS HONOUR JUDGE FAWSITT AND GILROY AUTOMATION LIMITED

Respondents

and by Order

THE ATTORNEY GENERAL

Appellant

1989 WJSC-SC 1937

Finlay C.J.

Walsh J.

McCarthy J.

71/88

224/88

THE SUPREME COURT

Synopsis:

PRACTICE

Costs

Judge - Liability - Order - Mistake - Certiorari - Order made without jurisdiction but without impropriety of ~mala fides~ - Motion for judicial review not opposed by judge - Costs of applicant's motion awarded against the judge - Costs improperly awarded against stranger to proceedings - A decision of the Employment Appeals Tribunal was appealed to the Circuit Court by the employer after obtaining from that court an invalid order extending the period allowed for bringing such appeal - The employee sought judicial review of the extension but settled his claim against the employer - The High Court held the Circuit judge liable for the employee's costs of his motion for review and directed the Attorney General to pay them - Held that the Circuit Court had no jurisdiction to grant such extension but that it had been granted without impropriety or ~mala fides~ - Held that the High Court judge had acted contrary to accepted principles in awarding the employee his costs against the Circuit Court judge: ~R. (King) v. Londonderry Justices~ 46 I.L.T.R. 105 and ~The State (Prendergast) v. Rochford~ (Supreme Court - 1/7/52) applied - Held that the High Court orders must be set aside - Unfair Dismissals Act, 1977, s. 10 - (71 & 224/88 - Supreme Court - 18/7/89) - [1990] 1 I.R. 343 - [1990] ILRM 1

|McIlwraith v. Fawsitt|

JUDGE

Costs

Liability - Order - Mistake - Certiorari - Order made without jurisdiction but without impropriety or ~mala fides~ - Motion for judicial review not opposed by judge - Costs of applicant's motion awarded against the judge - Costs improperly awarded against stranger to proceedings - ~See~ Practice, costs - (71 & 224/88 - Supreme Court - 18/7/89) - [1990] 1 I.R. 343 [1990] ILRM 1

|McIlwraith v Fawsitt|

Citations:

PRENDERGAST, STATE V ROCHFORD UNREP 01.07.52

R, (JOHN CONN KING) V LONDONDERRY JUSTICES 46 ILTR 105

1 JUDGMENT delivered on the 18th day of July 1989 by FINLAY C.J. [NEM DISS]

2 The Applicant Maurice McIlwraith brought a claim before the Employment Appeals Tribunal against his employers Gilroy Automation Limited in 1986 and was awarded a sum of £5,500 by the Tribunal in a determination which was communicated to the parties on the 10th September 1986.

3 The employers purported to serve a Notice of Appeal to the Circuit Court against this determination and did so on the 30th October 1986, which was outside the time limited by statute for appeals from the Tribunal.

4 The employers then applied by Notice of Motion to the Circuit Court in Cork for an extension of the time for appealing against the decision of the Tribunal. The first-named Respondent,sitting as the Judge of the Circuit Court in Cork, made on the 2nd April 1987 an Order purporting to extend the time.

5 It seems clear that there was no jurisdiction in the Circuit Court to extend the particular time provided by the statute for appeal from the Tribunal concerned. By Order of the High Court dated the 11th May 1987 the Applicant Mr. McIlwraith was granted leave to apply for Orders of Certiorari and Prohibition by way of an application for judicial review in respect of the decision of the first-named Respondent.

6 This application for judicial review was served on the first-named Respondent and on the second-named Respondents.

7 The first-named Respondent did not show cause or oppose the application for certiorari or prohibition and it would appear that the Applicant settled the dispute which existed between him and his employer, the Respondents Gilroy Automation Limited, before the application for review came on for hearing before the High Court.

8 The Notice of Motion for review came before the High Court on the 6th July 1987 before Mr. Justice Barr and according to the Order then made, Counsel on behalf of the Applicant informed the Court that he was not now applying for Orders of Certiorari and of Prohibition, a sum of £5,000 having been paid to him by his employers Gilroy Automation Limited.

9 The learned High Court Judge then made an Order, there being no appearance on behalf...