N.W. v Judge Olive Buttimer and Others

JurisdictionIreland
JudgeMR. JUSTICE MURPHY
Judgment Date13 October 2006
Neutral Citation[2006] IEHC 449
CourtHigh Court
Docket Number[No. 778 J.R./2006]
Date13 October 2006

[2006] IEHC 449

THE HIGH COURT

DUBLIN

[No. 778 J.R./2006]
W (N) v JUDGE BUTTIMER & ORS
N.W.
Applicant
JUDGE OLIVE BUTTIMER, IRELAND AND THE ATTORNEY GENERAL
Respondents
NOTICE PARTY:
MS. A.W.

JUDICIAL SEPARATION & FAMILY LAW ACT 1989

FAMILY LAW ACT 1995

RSC O.19 r28

VOLUNTARY PURCHASING GROUPS INC v INSURCO INTERNATIONAL LTD & AGRICHEM LTD 1995 2 ILRM 145 1995 5 1695

ADAM & IORDACHE v MIN FOR JUSTICE & ORS 2001 3 IR 53 2001 2 ILRM 452 2001 1 7

MCDONALD v BRADY 2001 3 IR 589

USHER v USHER 1912 2 IR 445

MARRIAGES (IRELAND) ACT 1863

F (T) v IRELAND & F (M) 1995 1 IR 345 1995 2 ILRM 321 1995 8 2233

JUDICIAL SEPARATION & FAMILY LAW ACT 1989 S2

OXFORD ENGLISH DICTIONARY

CASSELLS ENGLISH DICTIONARY

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

Abstract:

Practice and procedure - Judicial review - Leave to apply - Setting aside - Leave granted ex parte - Application to set aside - Whether proceedings disclosing no reasonable cause of action - Jurisdiction of civil courts in relation to Roman Catholic marriage - Whether grant of leave should be set aside

The applicant obtained leave ex parte from the High Court to apply for judicial review of an order made by the respondent in respect of reliefs sought by the notice party in the Circuit Court under the Judicial Separation and Family Law Act 1995 on the basis, inter alia, that the civil courts of the State had no jurisdiction to intervene or make orders in respect of a Roman Catholic marriage. The notice party subsequently applied by motion on notice to the High Court to have the order granting leave set aside and/or the proceedings struck out on the basis, inter alia, that the proceedings disclosed no reasonable cause of action.

Held by Mr Justice Murphy in striking out the proceedings:

1. That the High Court had jurisdiction to set aside an order of the High Court granting an applicant leave to apply for judicial review which had been made ex parte.

2. That the right to administer justice in the State derived from the Constitution and that a Roman Catholic marriage was recognised by the Constitution and the law of the State and could be dealt with by the civil courts.

3. That the proceedings disclosed no reasonable cause of action and in any event the application for judicial review was made out of time and the proceedings should be struck out on that basis also.

Reporter: P.C.

1

JUDGMENT OF MR. JUSTICE MURPHY GIVEN ON FRIDAY 13TH OCTOBER 2006

MR. JUSTICE MURPHY
2

This judgment is circulated in redacted form to avoid identification of the parties

3

MR. JUSTICE MURPHY GAVE JUDGMENT, AS FOLLOWS, ON FRIDAY 13TH OCTOBER 2006

4

MR. MURPHY: Judge, before you deliver judgment, can I just raise the in camera situation with you?

5

MR. JUSTICE MURPHY: Yes.

6

MR. MURPHY: Obviously we do not know how much your Lordship is going to touch on evidence. There is at least one member of the press present and in fairness to that member of the press, the question has been raised by the press.

7

MR. JUSTICE MURPHY: And quite properly raised.

8

MR. MURPHY: I wonder could you give some indication as to whether your judgment should be regarded as in camera or whether you want to put any restriction on publicity.

9

MR. JUSTICE MURPHY: What I had hoped to do is to leave matters which would normally be in camera out of the judgment and deal with the Judicial Review matter. But I am concerned in relation to the Respondent to this motion, who of course is the Applicant in the Judicial Review proceedings, and maybe Mr. N.W. should be called at this stage.

10

REGISTRAR: Mr. W.

11

MR. JUSTICE MURPHY: I understand in fact the registrar yesterday did contact Mr. W. and did inform him that the matter had been heard yesterday and the Court was going to proceed to judgment today and I understand that there was no application for an adjournment or anything which would indicate the Court should not proceed to deal with the matter today.

12

MR. BULBULIA: My Lord, can I just say in that respect I understand also that the registrar did make contact with Mr. W. and in addition, as directed by the Court, my solicitor sent a text message to the Applicant's mobile telephone and my solicitor personally left a message on his voice answering machine on his mobile telephone and I can hand in a letter from my solicitors addressed to the town agents setting out the text of that text message to the Applicant (same handed). I should also say Ms. Boyle sends here apologies, my Lord, she cannot be present.

13

MR. JUSTICE MURPHY: Yes, I understand that from yesterday and indeed if there had been a request to adjourn the matter the Court would have dealt with it sometime next week. But the Court is always concerned in cases such as this that the Court deals with it as a matter of urgency and the Court proceeds to do that. While I will then deal with my judgment, you will just bear with me in terms of the arguments that have been put forward and also the matters that obviously should be in camera, I do not want to make a reference to that.

14

MR. MURPHY: Judge, can we take it that you intend that the names may or on the other hand may not be used in any report of your judgment.

15

MR. JUSTICE MURPHY: I would prefer names were not mentioned but I am of course conscious this is a Judicial Review, this is not a family law issue. But I do think that the press might exercise their discretion with regard to naming names, particularly when there have been clear breaches of the in camera rule before. The Court is concerned about that and indeed it is one of the concerns the Court has which has led it to deal with this matter as a matter of urgency given the nature of the Judicial Review. The review does touch on family law matters.

16

The background has already been opened to the Court in relation to the position of the parties and it does not seem to me that at this stage I need to deal with the prehistory of the matter other than to refer to the many orders that were made under the1989 Judicial Separation and Family Law Act as amended by the 1995 Act. The motion for Judicial Review was moved in the court on 3rd July of this year and an order was made by Mr. Justice Peart ex parte, that is with the Applicant only being before the Court seeking the following orders, an order of certiorari by way of application for Judicial Review quashing any or all of the orders made by the Circuit Court Judge under the Judicial Separation Act of 1989 and the Family Law Reform Act of 1995. Further an order of prohibition against any further proceeding in the matters before the Circuit Court, thirdly a declaration by way of Judicial Review that the First Named Respondent, that is the Circuit Court Judge, acted improperly in making preliminary orders under Section 6 of the Family Law Reform Act in circumstances where the Applicant's affairs related to matters which were under the jurisdiction of the Roman Catholic Church. Fourthly, a declaration by way of Judicial Review that the Circuit Court Judge acted improperly in issuing an attachment warrant compelling the Applicant to be brought to court so that he might act even against his religious conscience and free will as the Respondent to the proceedings under the 1989 Act. There was also a request for damages and for costs as part of the matter which was before Mr. Justice Peart.

17

Now, it does not seem to me that I need to do anything other than to refer to the extensive grounds in respect of which leave was granted by this Court.

18

The matter which was before the Court on Wednesday and yesterday is a motion by the Notice Party to let Judicial Review and I might add that the original application for Judicial Review did not include the Notice Party who is the wife in the proceedings. It seems to me that that was improper but in fact the Court did order that the Notice Party be included and as such clearly the Notice Party then issued a notice of motion which, as I say, was dealt with on Wednesday and Thursday of this week. That application was to discharge the order of the 3rd July last, that is the leave order whereby the Applicant was given leave to apply for Judicial Review in respect of the reliefs and on the grounds set out in that order.

19

Secondly the Notice Party sought an order pursuant to Order 19, Rule 28 of the Rules of the Superior Courts for in the alternative, pursuant to the inherent jurisdiction of the Court, striking out or dismissing the Applicant's proceedings on the grounds that the said proceedings disclosed no reasonable cause of action, that the said proceedings were frivolous and/or vexatious and that the proceedings were doomed to fail.

20

Thirdly the Notice Party asks in the alternative and strictly without prejudice that the Court make an order discharging the stay on the Circuit Court proceedings by the Notice Party on foot of a Family Law Bill under the provisions of the 1989 Act and I should add for the sake of clarity that the order granting leave did apply, as is normal, for a stay on the proceedings in relation to which Judicial Review was sought.

21

The Notice Party in the fourth instance looks for a further relief in the alternative, again without prejudice to the three reliefs claimed, for an order varying the aforesaid stay with regard to certain matters which were dealt with by the Circuit Court in relation to the progress of the judicial separation proceedings.

22

There was also a request that matters be dealt with in camera in relation to the family law matters and this indeed was acceded to by the Court and on Wednesday and Thursday the Court held an in camera hearing in relation to the factual matters and then yesterday morning when those matters were dealt with had the in camera notice removed from the door of the court so that the legal submissions could be...

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