Morgan v The High Court

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 31 July 2023
• Neutral Citation: [2023] IEHC 761
• Court: High Court
• Docket Number: [Record No. 2023 / 131/ IA]

Between:

Deirdre Morgan

Applicant

and

The High Court

Respondent

[2023] IEHC 761

[Record No. 2023 / 131/ IA]

THE HIGH COURT

RULING (No. 2) of Ms. Justice Siobhán Phelan, delivered on the 31st of July, 2023 on an Isaac Wunder application.

INTRODUCTION

1 . This matter comes before me for a ruling on an application for leave to issue a motion pursuant to the terms of an Isaac Wunder Order. The Appellant seeks leave to apply for leave to proceed by way of judicial review in respect of orders made by the High Court in 2022.

2 . The leave of the Court to issue proceedings is required by reason of the judgment ( [2022] IEHC 361) of the High Court (Ferriter J.) delivered on the 1st of June, 2022 and the consequential orders made on the 28 ^th of June, 2022.

3 . This is the second application for leave to proceed in accordance with the terms of the Isaac Wunder Order that I have been required to consider. In March of this year, I ruled on the Applicant's application for leave to apply for an order pursuant to s. 97(2)(b) of the Employment Equality Act, 1998 (as amended). My ruling on that application bears neutral citation [2023] IEHC 122.

BACKGROUND

4 . The background to the Applicant's litigation involving the Kildare and Wicklow Education and Training Board [hereinafter “the Board”] and the Minister for Education and Skills [hereinafter “the Minister”] and the previous judgments of the High Court together with the principles which govern an application of this nature are set out in my previous ruling and I do not propose to repeat them here but refer to my previous ruling for same.

5 . Since my ruling in March, 2023 less than four months ago, it appears that the Applicant's appeal has been heard before the Court of Appeal (decision pending) and a determination refusing her leave to appeal has been made by the Supreme Court ( [2023] IESCDET 48). The long background to the Applicant's proceedings arising from her employment was succinctly summarised by the Supreme Court in its Determination refusing leave to appeal. Specifically, the Supreme Court note that on the 20 ^th of August, 2010 the Applicant made a complaint of sexual harassment against a student in her school to her employer, the VEC (now the Board) which sought further information which was not provided. The VEC notified the Applicant that they wished to conduct a risk assessment and she was excused from her duties with immediate effect, which was stated to be solely in the interests of personal health and safety.

6 . The Supreme Court further record that the Applicant's complaint of sexual harassment was withdrawn on the 15 ^th of November, 2010, a finding which the Applicant disputes in her oral submissions on this application, it being her position before me that her complaint was res integra. She maintains that the withdrawal of an appeal by her did not amount to a withdrawal of the allegation.

7 . In their summary of the background, the Supreme Court record that a result of the investigator's report into the matter, the VEC wrote to the Applicant stating that it was considering instituting disciplinary proceedings against her arising out of the matters reported. At that point, the Applicant lodged a complaint with the Rights Commissioner under s. 27 of the Health, Safety and Welfare at Work Act, 2005 contending that she had been penalised because she did certain protected acts. The Rights Commissioner dismissed the complaints. The Applicant then appealed that decision to the Labour Court. The matter came before the Labour Court in 2012 and was adjourned. Seven years later in 2019, the Applicant sought to re-enter the hearing of her appeal before the Labour Court, and despite objection by the employer, she was permitted to do so by the Labour Court.

8 . As noted by the Supreme Court in their summary of the background for the purpose of their Determination, after an oral hearing, the Labour Court in turn upheld the Rights Commissioner's decision dismissing the complaint. The Applicant then appealed the Labour Court's decision to the High Court, pursuant to s. 46 of the Workplace Relations Act, 2015 which permits an appeal to the High Court on a point of law and furthermore, provides that the decision of the High Court in relation thereto shall be final and conclusive.

9 . On the 22 ^nd of March, 2022 Ferriter J. delivered a judgment dismissing the appeal holding that there was no point of law arising from the appeal and consequently there had been no error of law on the part of the Labour Court. He also dismissed several other separate applications as more fully set out in the individual judgments he delivered and identified by reference to their citation numbers in my previous ruling [2023] IEHC 122.

10 . It is against this background that the Applicant now seeks to challenge an earlier judgment of the High Court on a statutory appeal. Even though she has been refused leave to appeal by the Supreme Court against the findings of the High Court and her several appeals have been heard by the Court of Appeal, she now seeks to proceed by way of judicial review based on an asserted unfairness in the process adopted by that Court. This application is made on notice to the Board and the Minister. The Chief State Solicitor's office maintained a watching brief on the application and the Board elected not to participate during the hearing which occurred with the assistance of remote technology on the 31 ^st of July, 2023.

INTENDED PROCEEDINGS

11 . Once an Isaac Wunder Order has been made, a litigant will not be permitted to institute proceedings against the same defendant without the leave of the court. The Appellant maintains that her intended proceedings are not covered by the said order because they are proposed against the High Court and not the Minister or the Board. The fallacy of this contention is manifest, however, from the Affidavit filed to ground this application and the draft Statement of Grounds provided. It is the judgment made in the case involving the Minister and the Board which the Applicant seeks to revisit making it undeniable that the Isaac Wunder order applies to this application.

12 . Broadly summarised the Applicant contends that the earlier decision of the High Court (Ferriter J.) was taken in breach of fair procedures because:

• a. An email (characterised by the Applicant as a “submission”) advising the Court that there had been compliance with the order of the Equality Tribunal directing payment to the Appellant in the sum of €500 had not been brought to her attention and she was not afforded an opportunity to reply to point out that she did not receive the payment because she was in hospital when it was sent, and it was sent to her home address. She was also denied the opportunity to point out that the cheque came from the Respondent's solicitor and not the Respondent and was therefore not in compliance with the order made. She further quibbles with wording used in the letter sending the cheque because she contends that it is in breach of a direction that further reference to a previous complaint should not be made in the disciplinary process; and

• b. A new finding made in the judgment of the High Court (and adopted by the Supreme Court in their Determination) to the effect that the Appellant had withdrawn her sexual harassment complaint in November, 2010. She maintains that she was denied an opportunity to address this as the judge said that if she had an issue with the ruling she could “...