P(L) v P(M)

• Jurisdiction: Ireland
• Judge: Murray, J.
• Judgment Date: 31 July 2001
• Neutral Citation: [2001] IESC 76
• Court: Supreme Court
• Docket Number: [S.C. No. 118 of 2000]
• Date: 31 July 2001

P v. P

BETWEEN

P

Applicant/Respondent

AND

P

Respondent/Appellant

[2001] IESC 76

Murray, J.

McGuinness, J.

Geoghegan, J.

Record No: 118/2000

THE SUPREME COURT

Synopsis

PRACTICE AND PROCEDURE

Jurisdiction

Jurisdiction of court to amend final order - Family law - Finality of litigation - Bias - Application to disqualify judge - Whether comments of trial judge had demonstrated bias or pre-judgment - Whether appeal in High Court had been properly determined - Whether Supreme Court possessed necessary jurisdiction to hear matter - Courts of Justice Act, 1936 section 38 - Courts (Supplemental Provisions) Act, 1961 (118/2000 - Supreme Court - 31/7/01)

P v P - [2002] 1 IR 219

Family law proceedings had been initiated between the applicant and respondent. Orders had been made in the Circuit Court dealing with the issues and the applicant had brought an appeal to the High Court regarding some of those issues. However, during the hearing of the appeal, following comments made by the High Court judge the applicant's counsel asked the judge to disqualify himself from hearing the appeal regarding maintenance issues. The judge refused and the applicant declined to continue his appeal regarding maintenance. The applicant now sought to appeal the order of the High Court on the grounds that he had not been afforded a fair hearing in that there had been a reasonable apprehension of bias. The applicant contended that the Supreme Court had an inherent jurisdiction to hear the appeal despite legislative provisions providing that decisions of the High Court on appeals from the Circuit Court were final and unappealable. Murray J held that the courts had an inherent jurisdiction to amend a final order where there had been a denial of justice. The case had been opened in the High Court and the decision by the applicant not to call evidence did not deprive the hearing of its character as an appeal. The Supreme Court was a court of appeal and did not, save for limited exceptions, possess an original jurisdiction. The appropriate procedure in this instance might involve the bringing of substantive proceedings in the High Court or to return to the Circuit Court to seek a variation of the original order. The appeal would be dismissed.

Citations:

COURTS OF JUSTICE ACT 1936 S38(1)

COURTS OF JUSTICE ACT 1936 S39

O'NEILL V BEAUMONT HOSPITAL 1990 ILRM 419

BULA LTD V TARA MINES LTD 2000 4 IR 412

CONSTITUTION ART 34.4.3

ANDREWS PRODUCTIONS LTD V GAIETY THEATRE 1973 IR 295

COURTS OF JUSTICE ACT 1936 PART IV

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S48

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S48(1)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S48(3)

COURTS OF JUSTICE ACT 1936 S38

COURTS OF JUSTICE ACT 1936 S38(2)

GREENDALE DEVELOPMENTS LTD (NO 3), RE 2000 2 IR 514

CONSTITUTION ART 34.3

ROONEY V MIN FOR AGRICULTURE 2001 2 ILRM 37

BELVILLE HIOLDINGS LTD V REVENUE COMMISSIONERS 1994 1 ILRM 29

WAITE V HOUSE OF SPRING GARDENS UNREP BARRINGTON 26.6.1985 1985/6/1592

TASSAN DIN V BANCO AMBROSIANO 1991 IR 569

CONSTITUTION ART 34.4.6

THE AMPTHILL PEERAGE CASE 1977 AC 547

AG V OPEN DOOR COUNSELLING (ODC) (NO 2) 1994 2 IR 333

1 31st day of July, 2001,byMurray, J.

Murray, J.

2 This an appeal brought by the Appellant, who is the husband of the Respondent, against an Order of the High Court determining an appeal from the Circuit Court in these proceedings.

3 Section 38(1) of the Courts of Justice Act 1936(re-enacted by the Courts Supplemental Provisions Act 1961) provides that an appeal shall lie to the High Court sitting in Dublin or to the High Court on circuit from every judgment or order of the Circuit Court in a civil action or matter.

4 Section 39 of the 1936 Act (also re-enacted by the 1961 Act) provides asfollows:-

5 39.- "The decision of the High Court or of the High Court on Circuit on an appeal under this Part of this Act shall be final and conclusive and not appealable"

6 Counsel for the Appellant acknowledged that this section would normally be a complete bar to this appeal but argues that because the Appellant was effectively denied a hearing or denied a fair hearing in accordance with the law and the Constitution in the High Court that this section did not apply. Accordingly the Supreme Court, independently of thatsection, had a special or inherent jurisdiction to hear and determine this appeal. The arguments of the parties have been limited to question of the jurisdiction of the Supreme Court to hear the appeal. I will refer to these arguments in more detail later, but first of all I will outline the facts and circumstances leading up to the appeal.

7 The Respondent and Appellant are respectively wife and husband. As a result of a breakdown of their marriage and consequent separation the Respondent initiated matrimonial proceedings in the Circuit Court which concerned matters relating to the custody of the children, access to them, rights of residence in the family home and maintenance. These proceedings were determined by Order of the Circuit Court made on the 18th March, 1999. The Appellant being dissatisfied with at least some aspects of the Order of the Circuit Court appealed to the High Court sitting in Dublin.

8 As required by the 1936 Act, an appeal from the Circuit Court is by way of a rehearing of the action. The proceedings came on for hearing before the High Court on the 7th February, 2000. On that occasion Counsel for both parties addressed the learned High Court Judge outlining the facts, the areas of agreement between the parties, the matters in issue and the kind of Order which could be made so as to resolve those issues. When the case resumed the following morning, and before any evidence was tendered, the learned High Court Judge, having referred to the fact that Counsel on both sides had already given him "a very concise review of the situation in this case," went on to add "without making any final conclusions because I have not heard the evidence, but from what little I have heard about this case it seems to me that this is the classic situation where the family budget is toosmall." The learned High Court judge then went on to review aspects of the case which had been outlined to him and to indicate difficulties and possible solutions to the differences between the parties. It is not necessary, and indeed it would be irrelevant, for the purposes of thisjudgment to recite in detail the observations of the learned High Court judge. It is sufficient for present purposes to note that the learned High Court Judge made it clear that he did not consider himself bound by these observations and it was accepted by Counsel for both the Appellant and the Respondent that the judge's observations were intended to help the parties to identify practical solutions to the issues between them having regard to the circumstances of the case and the realities of the limited financial resources available to them.

9 It appears from the transcript of the proceedings before the High Court that the Appellant instructed his Counsel, Mr Hegarty S.C. that he did not wish to proceed further with his appeal before the learned High Court Judge in the light of the preliminary observations which he had made. His Counsel then submitted that in making these observations the learned trial judge had gone so far as to demonstrate a pre judgment of the issue of maintenance before any witness had been called by theAppellant.

10 On this basis Counsel asked the learned trial judge to vary the Circuit Court Order and make a new Order concerning the custody of the children of the marriage as agreed by the parties but to disqualify himself from hearing the case further as regards the maintenance issue. The learned High Court Judge refused to disqualify himself because he considered the request unfounded.

11 Following that refusal, the Appellant, through his Counsel, indicated that he would not continue with his case on the appeal concerningmaintenance.

12 As a consequence of the foregoing, and in the light of the refusal of the Appellant to continue further with his appeal or to call evidence, the learned High Court judge varied, by consent, the Order of the Circuit Court concerning custody and then affirmed the Order of the Circuit Court as regards maintenance.

This Appeal:

13 In this Appeal it was contended on behalf of counsel for the Appellant that in expressing certain views before hearing the evidence, the learned High Court judge's comments were in effect a predetermination or pre-judgement of the issues or at least gave rise to a reasonable apprehension of such pre-judgement on the part of the Appellant so as to amount to pre-judgment or objective bias as defined by Finlay, C.J. in O'Neill -v- Beumont Hospital 1990 I.L.R.M. 419 and Denham, J. In Bula Ltd and Ors -v- Tara Mines Ltd andOrs ( unreported, 3rd July, 2000). He did not seek a determination from the Supreme Court of the substantive issue before the High Court but that the Order of the High Court could not be allowed to stand. It should be set-aside and a rehearing ordered.

14 He submitted that the only remedy available to the Appellant was by way of appeal to the Supreme Court. Article 34.4.3. of the Constitution conferred on the Supreme Court appellate jurisdiction from all decisions of the High Court subject to such exceptions provided by law. The exception to the Court's appellate jurisdiction created by section 39 of the Courts of Justice Act, 1936in respect of decisions of the High Court on Circuit appeals should be interpreted as being inapplicable to this case in order to ensure that the Appellant had a remedy. In the Bula case, (cited above), the Supreme Court, in the exercise of an inherent jurisdiction, heard and determined an application to set aside an otherwise final determination by the Supreme Court in the same proceedings on the grounds of alleged objective bias on the part of members of the Court...