Munster Wireless Ltd v Finn
| Jurisdiction | Ireland |
| Judge | O'Donnell J.,McKechnie J.,Charleton J. |
| Judgment Date | 16 May 2019 |
| Neutral Citation | [2019] IESCDET 97 |
| Court | Supreme Court |
| Date | 16 May 2019 |
[2019] IESCDET 97
THE SUPREME COURT
DETERMINATION
O'Donnell J.
McKechnie J.
Charleton J.
AND
RESULT: The Court does not grant leave to the Applicant to appeal to this Court directly from the High Court.
| COURT: High Court |
| DATE OF JUDGMENT OR RULING: 28 th June, 2018 |
| DATE OF ORDER: 26 th July, 2018 |
| DATE OF PERFECTION OF ORDER: 14 th August, 2018 |
| THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 10 th September, 2018 AND WAS IN TIME. |
This determination relates to an application for leave to appeal to the Supreme Court from a judgment of the High Court (Faherty J.), delivered on the 28 th day of June, 2018 and from the resulting Order of that Court made on the 26 th July, 2018 and perfected on the 14 th August, 2018.
The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. What is sought in this application is what is colloquially known as a “leapfrog” appeal directly from the High Court to the Supreme Court. The threshold for such an appeal is higher than that in respect of an appeal from the Court of Appeal. As is clear from the terms of Article 34.5.4° of the Constitution, it is necessary, in order for this Court to grant leave to appeal directly from a decision of the High Court, that the Court is satisfied that there are exceptional circumstances warranting a direct appeal, a precondition to which is the presence of either or both of the following factors: i) that the decision sought to be appealed involves a matter of general public importance, or ii) the interests of justice.
The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33 rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called “leapfrog appeal” direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions [2017] IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.
It should be noted that any ruling in a determination is between the parties. It is final and conclusive as far as the parties are concerned, and is a decision in relation to that application only. The issue determined on the application for leave is whether the facts and legal issues meet the constitutional criteria to enable this Court to hear an appeal. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.
Furthermore, the application for leave filed and the respondents” notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties.
In that context it should be noted that the respondents do oppose the grant of leave.
The judgment sought to be appealed is that of Faherty J. in the High Court, delivered on the 28 th June 2018. It is therefore a leapfrog application. The context is as follows: an application for leave to seek judicial review was brought by the applicant with a view to obtaining an order of certiorari to quash decisions made by the first named respondent in Cashel District Court on 22 nd February, 2016. Leave was sought on the basis of the persistent refusal by this respondent to recuse himself from the said proceedings, despite several alleged demonstrations of bias. It is alleged that he acted as a judge in his own cause by refusing to recuse himself. This leave application was grounded on the affidavit of Mr. William Fitzgerald, a director of the applicant company.
Humphries J., by order of the 28 th November, 2016 directed that the State should be put on notice of the proceedings and that before the issue of leave should be determined, the preliminary issue of whether it is appropriate that the applicant be represented by one of its own directors, and not a legal representative, be tried. As such, this issue came before Faherty J. who ruled on the question of whether ‘a director, if vested with the appropriate authority to bind the company, could file papers in court and initiate proceedings on behalf of the company?’.
Mr. Fitzgerald submitted that there should be no bar to his lodging papers on behalf of the company if he was duly authorised to so, relying in this respect on s. 41 of the Companies Act 2014, which counsel for the State said had no bearing on the right of the Court to regulate who appears before it. Faherty J. accepted the State's proposition, saying that the import of s. 41 is simply to permit a person to stand in the shoes of the company and to act as the company: it does not divest the company, or the person acting in its place, of the company's incorporated status.
Another issue raised was the question of whether Mr. Fitzgerald had been entitled to sign the statement of grounds: he submitted that the power to bind the company is generally analogous to the power to submit the company to the jurisdiction of the court. The State, argued that as a matter of public policy it is questionable whether the Central Office could accept documents signed by a director: the authority of an agent to bind a company may be set out in the constitution of a company, or in the resolutions of members/the Board: however the director has no inherent authority and no inherent power to act individually as an agent of a company, without express authority. Furthermore, that where this power is expressly contained in the constitution, any directorship can be revoked by the Board at any time (s. 38 of the 2014 Act).
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