F. & Ors -v- Judge O'Donnell & Ors, [2009] IEHC 142 (2009)

Docket Number:2006 507 JR & 2008 424 JR
Party Name:F. & Ors, Judge O'Donnell & Ors
Judge:O''Neill J.
 
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THE HIGH COURT2006 507 JR

BETWEEN/

O.F. APPLICANTAND

JUDGE HUGH O'DONNELL, IRELAND AND ATTORNEY GENERALRESPONDENTSAND

T.F.NOTICEPARTY

2008 424 JR

BETWEEN/

M.I.APPLICANTAND

JUDGE HUGH O'DONNELLRESPONDENTAND

B.H., IRELAND, ATTORNEY GENERAL,

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORMNOTICE PARTIES

JUDGMENT of O'Neill J. delivered the 27th day of March 2009.

  1. Relief sought in the first set of proceedings

    1.1 On the 8th May, 2006, in the first set of proceedings, leave was granted by this Court (Peart J.) to pursue the following relief, inter alia, by way of judicial review:-

    An order of certiorari quashing the decision of the first named respondent of the 7th April, 2006, granting a barring order to the notice party against the applicant.

    1.2 Leave was granted to seek this relief on the grounds that the first named respondent had proceeded to make a determination against the applicant where the facts were in dispute without hearing any evidence and in so doing he acted ultra vires the Domestic Violence Act 1996 and in breach of the applicant's right to constitutional justice and fair procedures.

    1.3 On the 22nd January, 2007, on foot of a contested motion, the applicant was granted liberty by this Court (Hanna J.) to amend his statement of grounds, pursuant to O. 84 r. 23(2) of the Rules of the Superior Courts, 1986, to include the following additional reliefs and grounds:-

  2. A declaration that if the applicant is not entitled, in law, to an order for costs against the respondents, save where male fides is established, then such a rule of law gives rise to a breach of Article 13 of the European Convention on Human Rights and Fundamental Freedoms (the Convention) as it deprives the applicant of an effective remedy for a breach of Article 6 of the Convention.

  3. A declaration, pursuant to s.5 of the European Convention on Human Rights Act 2003 (the Act of 2003), that a rule of law prohibiting the applicant from being entitled, in law, to an order for costs against the respondents, save where male fides is established, is incompatible with the State's obligations under the Convention.

  4. The applicant is entitled to an order for costs as against the second and third named respondents by virtue of the fact that Article 13 of the Convention provides that everyone whose rights are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by a person acting in an official capacity.

    1. In the circumstances pleaded, the first named respondent has denied the applicant his right to a fair trial and fair procedures pursuant to the said Convention.

    2. If the applicant is not entitled, in law, to an order for costs against the respondents, save where male fides is established, then such a rule of law gives rise to a breach of Article 13 of the Convention, in that, it deprives the applicant of an effective remedy for a breach of Article 6 of the Convention.

  5. The second and third named respondents are appropriate bodies to act as legitimus contradictor in these proceedings, being potential indemnifiers of the first named respondent in relation to a costs order, in guaranteeing to the first named respondent an immunity from suit pursuant to Article 35 of the Constitution of Ireland.

  6. It is just and necessary in order to vindicate the right of the applicant to a fair hearing and fair procedures pursuant to the provisions of the Constitution of Ireland 1937 and the Act of 2003 that the second and third named respondents are parties to these proceedings and liable to be fixed with the applicant's costs should he be successful in these proceedings.

    1.4 The applicant also introduced grounds relating to Article 41 of the Constitution in the amended statement of grounds but these were not pursued at hearing.

  7. Relief sought in the second set of proceedings

    2.1 In the second set of proceedings, on the 14th April, 2008, the applicant was granted leave by this Court (McGovern J.) to pursue the following reliefs by way of judicial review:-

  8. An order of certiorari quashing the respondent's order of the 8th April, 2008, granting guardianship over the child of the applicant and the first named notice party.

  9. An order of certiorari quashing the respondent's order of the 8th April, 2008, granting access over the said child of the applicant and the first named notice party.

  10. A declaration that the respondent breached the applicant's right to a fair hearing on the 8th April, 2008, such that the second, third and fourth named notice parties or one or other of them are obliged to provide the applicant with an effective remedy by reason thereof pursuant to Article 13 of the Convention.

    2.2 The applicant's grounds in seeking judicial review in these second proceedings are that the respondent failed to give her a fair hearing in refusing to hear her evidence or any evidence on her behalf, in violation of her right to constitutional justice and to fair procedures and in breach of the rule of audi alterem partem, and in breach of her rights under Article 6.1 of the Convention. She also contends that the respondent erred in law and acted ultra vires the Guardianship of Infants Act 1964 in the manner in which he determined the first named notice party's application for guardianship.

  11. Facts in the first set of proceedings

    3.1 The first judicial review application arises from family law proceedings in the District Court. The applicant husband and the notice party wife are a married couple and are joint owners of the family home. In or around September 2005, the applicant left the family home. On the 20th March, 2006, both the applicant and the notice party appeared before the District Court, each seeking a safety order against the other. No evidence was heard on this date and both parties agreed to give undertakings not to use or threaten to use violence against, molest or put in fear the other or any dependent persons and not to watch or beset the place where the other or dependents live, mirroring the terms of a safety order. Counsel for the notice party sought that the applicant would be required to give an undertaking to stay away from the family home but the Court refused to require such an undertaking on the basis that it would amount, in practical terms, to a barring order. The Court acknowledged that the applicant could attend at the family home for the purpose of collecting the children for access.

    3.2 On the 21st March, 2006, the applicant attended at the family home for that very purpose. An altercation ensued between the applicant, the notice party and the notice party's partner. Following this altercation the applicant applied on the same day to the District Court for a barring order and a safety order against the notice party. He obtained a protection order and was given a hearing date of the 19th May, 2006, for the barring order. The notice party also sought a barring order along with an interim barring order on the 22nd March, 2006. The interim barring order was granted and given a return date of the 29th March, 2006. The matter was adjourned to the 7th April, 2006.

    3.3 On the latter date, at a hearing before the first named respondent, a barring order was granted to the notice party against the applicant. Counsel for the notice party indicated to the Court that the applicant was in breach of his undertaking given to the Court by attending at the family home. Counsel for the applicant refuted this allegation and submitted to the Court that the applicant had attended at the family home to see his children and further submitted that there was nothing in the undertaking which prohibited the applicant from attending at the family home for this purpose. The first named respondent refused to hear evidence from the applicant's solicitor as to what had taken place in Court on the 20th March, 2006. He also refused to hear evidence from the applicant in respect of what had occurred on the day of the alleged breach of the undertaking. A clear factual dispute existed as between the applicant and notice party as to the terms of the undertaking given in Court on the 20th March, 2006, and as to what had taken place at the family home on the following day. Notwithstanding this, the first named respondent declined to hear any evidence in this regard and he proceeded to grant a full barring order to the notice party against the applicant, effective until the 19th May, 2006. It is this order that the applicant seeks to quash in these proceedings.

    3.4 A full hearing took place before another District Court Judge on the 19th May, 2006. A safety order was granted to the applicant against the notice party with effect until the 21st September, 2006. The notice party did not renew her application for a barring order against the applicant and the barring order that had been granted by the first named respondent duly expired. However, the fact that this barring order was granted remains on the applicant's record. The applicant is a foreign national with temporary leave to remain in the State. It was submitted on his behalf that the existence of the barring order would have adverse consequences for him in an immigration context.

    3.5 The first named respondent did not enter an appearance, oppose or participate in these proceedings. The second and third named respondents represented the State and the statement of opposition emanates from them. There was no appearance by or on behalf of the notice party. The applicant appealed the impugned order to the Circuit Court but subsequently withdrew his appeal for undisclosed reasons.

    3.6 This applicant does not allege male fides or impropriety on the part of the first named respondent.

  12. Facts in the second set of proceedings

    4.1 The second set of judicial review proceedings also arise from family law proceedings in the District Court. These proceedings, involved a guardianship and access application on the part of the first named notice...

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