Olivier Alary v Cork County Council and by Order Leonard McCarthy

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Niamh Hyland
Judgment Date16 March 2022
Neutral Citation[2022] IEHC 173
Docket NumberRECORD NO. 2019/737JR
Between
Olivier Alary
Applicant
and
Cork County Council and by Order Leonard McCarthy
Respondents

[2022] IEHC 173

RECORD NO. 2019/737JR

THE HIGH COURT

Judicial review – Conviction – Engaging in casual trading without a valid casual trading licence – Applicant seeking to challenge by way of judicial review his conviction – Whether the summons for the offences of which the applicant was convicted were valid

Facts: The applicant, Mr Alary, sought to challenge by way of judicial review his conviction on 24 July 2019 in Bantry District Court for three offences of engaging in casual trading without a valid casual trading licence contrary to s. 3(1) and s. 3(3) of the Casual Trading Act 1995 on respectively 26 November 2018, 6 December 2018 and 24 January 2019. Charges that he had failed, refused or neglected on each of those occasions to comply with a requirement of an authorised officer contrary to s. 10(4) and s. 10(6) of the 1995 Act were taken into consideration. For the s. 3 offence committed on 26 November 2018, the District Judge imposed a fine of €500. For that committed on 6 December 2018, he imposed a fine of €1,000. For that committed on 24 January 2019, he imposed a fine of €1,500. In each case the applicant was given 6 months to pay the fine and was told of his right to appeal the convictions of the Circuit Court within 14 days. Recognisances were fixed in the amount of €100. The applicant did not appeal. On 21 October 2019, the applicant sought and obtained leave to bring proceedings as against the first respondent, Cork County Council, and a notice of motion was issued to join the second respondent, Mr McCarthy. On 4 February 2020 an order was made joining the second respondent. The applicant submitted that: (1) the summons for the offences of which he was convicted were addressed to him at 23 Wolf Tone Square, Bantry Co. Cork, which he said did not exist as an address; (2) he provided documents in advance of the hearing to the District Court office and those were not made available to the District Judge; (3)(a) the 1995 Act and the Bantry Bye-Laws were unconstitutional and/or in breach of the common law or Magna Carta Hiberniae; (3)(b) the fact that casual trading Bye-Laws were not made other than for places other than Bantry invalidated the Bantry Bye-Laws; (4) the District Judge had no jurisdiction to convict him; (5) he was not bound by the Bye-Laws because he did not consent to them; and (6) he had been singled out for treatment and other traders whom he believed may not be trading in compliance with the 1995 Act were not stopped by the Council.

Held by the High Court (Hyland J) that: (1) the applicant had failed to make out even a stateable case that the incorrect address on the summons rendered the convictions invalid; (2) it was difficult to see why this ground was advanced at all given that the applicant knew the material would not be provided in advance; (3)(a) the applicant’s statement of grounds disclosed no stateable case in support of the constitutionality/common law/Magna Carta plea; (3)(b) in relation to the point made that other towns did not have similar Bye-Laws, no legal argument had been advanced as to why this was unlawful; (4) there was no basis whatsoever for the argument that the Court did not have jurisdiction; (5) a person is bound by the Bantry Bye-Laws irrespective of whether he or she consents to them; and (6) no factual or evidential basis for this argument had been identified.

Hyland J held that the applicant had failed to identify any legal arguments that would warrant the quashing of his convictions. Hyland J dismissed the proceedings. She proposed making costs orders against the applicant in favour of the first and second respondents in circumstances where he had been entirely unsuccessful in all his arguments.

Proceedings dismissed.

JUDGMENT of Ms. Justice Niamh Hyland delivered on 16 March 2022

Introduction
1

The applicant seeks to challenge by way of judicial review his conviction on 24 July 2019 in Bantry District Court for three offences for engaging in casual trading without a valid casual trading licence contrary to s.3(1) and s.3(3) of the Casual Trading Act 1995 (“the 1995 Act”) on respectively 26 November 2018, 6 December 2018 and 24 January 2019. Charges that he had failed, refused or neglected on each of these occasions to comply with a requirement of an authorised officer contrary to Section 10(4) and Section 10(6) of the 1995 were taken into consideration. For the section 3 offence committed on 26 November 2018, the District Judge imposed a fine of €500. For that committed on 6 December 2018, he imposed a fine of €1,000. For that committed on 24 January 2019, he imposed a fine of €1,500. In each case the applicant was given 6 months to pay the fine and was told of his right to appeal the convictions of the Circuit Court within 14 days. Recognisances were fixed in the amount of €100. The applicant did not appeal. On 21 October 2019, the applicant sought and obtained leave to bring the within proceedings as against the Council and a notice of motion was issued to join the second named respondent. On 4 February 2020 an order was made joining the second respondent.

2

The applicant has previously taken unsuccessful judicial review proceedings against the Council relating to an earlier conviction on 30 September 2016, whereby he was found guilty of engaging in casual trading selling artisan breads at Wolf Tone Square, Bantry Co Cork. He was convicted in the District Court and on appeal by the Circuit Court on 21 July 2017 his conviction was upheld, and he was fined €100. He judicially reviewed his conviction and the matter was heard before Noonan J. Judgment was delivered on 24 July 2018 dismissing the application. The applicant appealed the dismissal of his case to the Court of Appeal. Judgment was delivered by Binchy J. on 23 March 2021 dismissing the appeal. Many of the matters that were heard and determined, not just by the High Court but also by the Court of Appeal, have been raised again in these proceedings. I deprecate the waste of Court time in raising issues in these proceedings that have already been determined in the context of other proceedings.

3

The applicant represents himself but that does not absolve him of the need to identify with precision grounds of challenge that are known to law. That is clear from, inter alia, the decision of MacMenamin J. in C O'S v Doyle [2014] 1 IR 556 where he held that the obligation to identify the real issues and properly frame and plead a judicial review binds all litigants. The applicant has failed to do this. Many of the points raised by the applicant do not amount to grounds known to law. I address below those grounds that can be identified as discrete arguments capable of being adjudicated upon.

Validity of summons
4

The first point raised by the applicant is that the summons for the offences of which he was convicted were addressed to him at 23 Wolf Tone Square, Bantry Co Cork, which he says does not exist as an address. He asserts that this invalidates the convictions. In support of this point he subpoenaed a number of witnesses who were obliged to travel from West Cork and spend the day in Court. He examined them on diverse subjects such as whether the address is a valid one, how the address was identified for the purpose of the summons, whether he had previously provided that address to the Council in the course of a telephone conversation and other points. None of this evidence was relevant to the determination of these proceedings, both because the facts in relation to the...

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