Morgan v The Labour Court

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 01 March 2023
• Neutral Citation: [2023] IEHC 122
• Court: High Court
• Docket Number: [Record No. 2020/123MCA]

Between

Deirdre Morgan

Appellant

and

The Labour Court

Respondent

and

Kildare and Wicklow Education and Training Board and The Minister for Education and Skills

Notice Parties

[2023] IEHC 122

[Record No. 2020/123MCA]

THE HIGH COURT

Isaac Wunder order – Leave – Employment Equality Act 1998 s. 97(2)(b) – Appellant seeking leave to apply for an order pursuant to s. 97(2)(b) of the Employment Equality Act 1998 – Whether the notice of motion which the appellant sought leave to issue was affected by the doctrine of functus officio

Facts: The appellant, Ms Morgan, applied to the High Court seeking leave to apply for an order pursuant to s. 97(2)(b) of the Employment Equality Act 1998 (as amended). In the grounding affidavit, the appellant claimed that she required the order sought under s. 97(2)(b) to defend herself “from attack made by the legal teams” on behalf of the notice parties, Kildare and Wicklow Education and Training Board and the Minister for Education and Skills, in this case (2020/123 MCA) and four other cases which she described as interrelated and travelling together bearing record numbers 2021/36 MCA, 2021/38 MCA, 2020/787 JR and 2021/103 JR. She said that disclosure was required due to “assertions that cover up their ongoing discrimination and which degrade and belittle my well-founded complaints against them”. The grounding affidavit indicated a wish that the orders would be made before making final orders in those cases. The affidavit did not refer to any particular information which the appellant had been prevented from disclosing and for which consent to disclose was sought. The appellant further referred to her state of ill-health in support of her application. Despite the fact that final orders had been made and the proceedings in respect of which the leave of the court was sought had been dismissed by the High Court and were under appeal, the appellant sought to maintain a further application under s. 97(2)(b) before the High Court despite having refused to move her application when invited to do so by Ferriter J in March, 2022. Separately, she pursued a similar application before the Court of Appeal by way of motion returnable before the Court of Appeal on 24th of February, 2023. In her email forwarding the application to the High Court Registrar, the appellant claimed that she needed to disclose information for six appeals she had made to the Court of Appeal and one to the Supreme Court in respect of those cases. It was understood that the application for leave to appeal which awaited determination by the Supreme Court was against the ex tempore judgment in March, 2022 ruling in respect of the appeal on a point of law against a determination made by the Labour Court which was originally the subject of the proceedings in whose record number this application was brought and the order perfected in respect of that judgment on the 4th of November, 2022.

Held by Phelan J that the High Court was functus officio. She held that the appeal which was before the High Court concerned an appeal on a point of law against a Labour Court decision whereby the High Court reviewed the evidence and material that was before the decision maker when making its decision; the High Court afforded the appellant an opportunity to move a motion to adduce certain evidence, but she declined to do so. Phelan J held that the appellant could not properly seek to re-litigate the same motion. Phelan J held that evidence that the appellant sought to introduce before an Equality Officer in 2012 or sought to introduce in relation to a complaint which had been finally determined for more than a decade was wholly irrelevant to the appeal on a point of law in respect of a decision of another administrative body which was the subject of the proceedings. In circumstances where the proceedings had concluded in the High Court but appeals were pending to the Court of Appeal and Supreme Court, Phelan J held that any question as to leave to admit further or new evidence fell properly to be determined by those courts and was not a matter for the High Court on an application under s. 97(2)(b).

Phelan J refused the application for leave to issue a motion seeking an order pursuant to s. 97(2)(b) of the 1998 Act.

Application refused.

RULING of Ms. Justice Siobhán Phelan, delivered on the 1st of March, 2023.

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 an order pursuant to s. 97(2)(b) of the Employment Equality Act, 1998 (as amended) [hereinafter “the 1998 Act”].

BACKGROUND

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 28th of June, 2022 in proceedings bearing the record number cited on the application which is now before me.

3 . By reason of the judgment and orders subsequently made on the 28th of June, 2022, the Appellant was restrained from instituting any further proceedings concerning any matter relating to the Appellant's term of employment with Kildare and Wicklow Education and Training Board [hereinafter “the Board”] (including any matter related to the suspension of termination of her contract of employment), her term of employment and her pension and gratuity entitlements, without prior leave of a Judge of the High Court (the Minister for Education and Skills [hereinafter “the Minister”] and the Board having been put on notice of any such application for leave). Further orders were made striking out then extant proceedings between the Appellant, the Labour Court and the Board (specifically including proceedings bearing record 2021/404S and 2021/00033) pursuant to the inherent jurisdiction of the Court. The matter of costs stood adjourned.

4 . Separate written judgments were also delivered on the 1st of June, 2022 in respect of four other sets of proceedings taken by the Appellant in respect of her former employment, namely:

• I. Morgan v. the Minister for Education and Skills [2022] IEHCC 360 in which Ferriter J. refused leave finding that an application for leave to seek relief by way of judicial review was an abuse of process as an inappropriate attempt to seek to litigate the question of her removal as an art teacher which had been the subject of a final and binding determination by the Labour Court and the High Court and was also “ hopelessly out of time” and dismissed the proceedings.

• II. Morgan v. Minister for Education and Skills & Ors. [2022] IEHC 362 in which Ferriter J. determined that two separate statutory appeals on a point of law from determinations of the Labour Court dating to February, 2021 (the Labour Court in turn dismissing appeals from the WRC) dismissing a claim that she had been discriminated against contrary to s. 77 of the Employment Equality Act, 1998 (as amended) and s. 81E Pensions Act, 1990 (which claims were also considered to be res judicata having been the subject of earlier findings) should be dismissed.

• III. Morgan v. Minister for Education and Skills [2022] IEHC 363 in which Ferriter J. refused leave to proceed by way of judicial review on the basis that the proceedings were an improper attempt to seek to re-open the circumstances of the Appellant's removal as an art teacher in 2015 and represented another attempt in her long running campaign of “ legally vexatious complaints and proceedings against the Respondents”.

He further held that no arguable grounds were raised to challenge the decision that the Applicant did not meet the criteria for injury gratuity in circumstances where she had not been injured during the course of her work. Proceedings were dismissed.

5 . Subsequent orders were made on the 13th of October, 2022 (perfected on the 20th of October, 2022) removing the Minister for Education and Skills, the Department of Justice and Equality and the Irish Human Rights and Equality Commission from the within proceedings. On the 24th of October, 2022, having afforded the parties an opportunity to make submissions, the High Court (Ferriter J.) made final orders refusing the relief sought by the Appellant and dismissing the proceedings in their entirety (orders were perfected in early November, 2022). Costs were ordered against the Appellant in favour of the Board and the Minister, said costs to be adjudicated in default of agreement and subject to a stay of execution in the event of an appeal. The Appellant has appealed and appeals are pending before the Court of Appeal and an application for leave to appeal to the Supreme Court in one case is also awaiting determination.

THE APPLICATION

6 . Leave is sought by the Appellant to bring an application by Notice of Motion bearing the record number of proceedings which have been the subject of a number of orders including a final order dismissing the proceedings. It is recalled in that the within proceedings originated as an appeal on a point of law against a determination of the Labour Court on the 1st of April, 2020. In an ex tempore judgment delivered on the 22nd of March 2022, Ferriter J. dismissed the appeal on the grounds that the Appellant had failed to identify any error of law in the determination of the Labour Court. By Notice of Motion dated the 23rd of October 2021 in these proceedings, the Board sought reliefs against the Appellant to restrict the Appellant from bringing any further proceedings against the Board. Despite opportunity to do so, the Appellant did not file an affidavit in response to the motion. In a written judgment delivered on the 1st of June 2022 and an order perfected on the 28th of June 2022, Ferriter J. acceded to the application of the Board. The Appellant has appealed that Order to the Court of Appeal and that appeal (along with...