R.M. v D.M. (Practice: in camera)

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick H. Murphy
• Judgment Date: 26 July 2000
• Neutral Citation: [2000] IEHC 140
• Court: High Court
• Docket Number: [1999 No.
• Date: 26 July 2000

M (R) v. M (D) & A BARRISTER & BARRISTERS PROFESSIONAL CONDUCT TRIBUNAL

County of City of Dublin

R M

APPLICANT

AND

D M

RESPONDENT

AND

A BARRISTER BARRISTERS PROFESSIONAL CONDUCT TRIBUNALBARRISTERS PROFESSIONAL CONDUCT APPEALS BOARD AND D J

NOTICE PARTIES

[2000] IEHC 140

No. 317 CA/1999

Circuit No. 1057/97

THE HIGH COURT

Synopsis

Practice and Procedure

Practice and procedure; in camera rule; appeal from Circuit Court refusal to grant leave to adduce certain documents from previous family law proceedings; applicant seeking to adduce documents in evidence before Barristers Tribunal in relation to complaint against his barrister; whether public interest in maintaining trust in professional services in barristers enough to lift in camera rule.

Held: Application refused

M (R) v. M (D) - High Court: Murphy J. - 26/07/2000 - [2000] 3 IR 373 - [2001] 2 ILRM 369

The applicant had made a complaint to the Barristers Tribunal ("the tribunal") concerning the conduct of the applicant's barrister in family law proceedings. In support of his complaint the applicant had sought to introduce certain documents which had been used in the family law proceedings into the hearing before the tribunal. The tribunal refused permission holding that permission would have to be sought from the Circuit Court. The Circuit Court judge, referring to the in camera rule, refused to grant the leave sought and held that it was not in the public interest that the application be granted. The applicant appealed. Murphy J held that on the basis of the relevant statutory provisions documents which were protected by the in camera ruling could not be the subject matter of an investigation by a professional body investigating complaints. Accordingly the application would be refused.

1 Mr. Justice Roderick H. Murphydelivered the 26th day of July, 2000.

2 This matter, which was heard on the 7th and 8th of June last, is an application by the Plaintiff, in person. The Respondent as fourth named Notice Party, appeared in person, her Counsel and Solicitor having come off record. Mr. McDermott S.C. appeared for the first named Notice Party. There was no appearance on behalf of the second and third NoticeParties.

3 The matter arises in relation to an appeal from an Order of the Circuit Court dated 23rd July 1999 refusing the Applicant leave to adduce certain documents including Pleadings in evidence before the second Notice Party (the Barristers Tribunal). A previousPleadings in evidence before the second Notice Party (the Barristers Tribunal). A previous Order of the Circuit Court, by consent, dated 29th June 1998 provided for the divorce of the Applicant and the Respondent pursuant to Section 5 (i) of the Family Law (Divorce Act) 1996.

4 The Applicant subsequent to that consent Order, made a complaint in respect of the first named Notice Party to the Barristers Tribunal. The appeal from the Circuit Court Order was partly heard, on 22nd March last, by Mr. Justice Smith who discharged himself when the Applicant was in the process of examining a witness who had previously appeared beforehim.

5 The Barrister's Tribunal by way of preliminary decision, precluded the Applicant from referring to documents arising out of the Family Law proceedings in the Circuit Court without leave of that Court.

6 An application was made to the Circuit Court on the 23rd of July, 1999. In her judgment the learned Circuit Court Judge held that it was not in the public interest that the Applicant's application be granted as there had not been a case where the Family Law in camera rule had been lifted and that it was important to keep it sacred and intact. Accordingly the Applicant's application was refused.

7 There had been a number of preliminary applications during that hearing which were also made at this hearing. The first applications related to the appointment of a McKenzie friend, which was granted (as it had been at the hearing of 22nd March last). The second application related to the presence of a stenographer was also granted. A third application in relation to the presence of a journalist was not pursued at thishearing.

8 No objection was taken by the Defendant nor by the first named Notice Parties regarding the absence of a formal Notice of Appeal. It would appear that no objection had been taken at the previous hearing.

9 The Applicant's grounding Affidavit was sworn the 2nd of December, 1999. At paragraph 2 the Applicant says that he is appealing the judgment of the Honourable Judge of the Circuit Court and is asking this Court to vindicate his constitutional rights.

10 At paragraph four of his Grounding Affidavit he says that he did not attack the Order of the 29th of June, 1998 as he did not think it either appropriate or necessary to do so as his application was specifically for the sole purpose of enabling the Barrister's Tribunal to consider his complaint. Nonetheless he says that, as the Judgment of the Circuit Court in relation to a waiver of the in camera rule raised that matter he would present evidence in that regard.

11 The Applicant further avers that the Circuit Court was mislead in relation to the views of one of his children regarding the application for a waiver of the in camera rule.

12 Finally, the Applicant says that the Court did not adequately address the matters of fact or of law in the Affidavits, submissions and oral presentations made to it.

13 The application before this Court is, accordingly, not an appeal against the Order of the 29th of June, 1998 (the consent Divorce Order) but against an Order of the 23rd of July, 1999 wherein the Circuit Court refused the Applicant's application to waive the in camera rule in relation to the Family Law hearing of the 29th of June, 1998. The Applicant appeals that decision for the sole purpose of allowing the Barrister's Tribunal to investigate his complaints of professional misconduct against his Barrister.

14 The transcript of the judgment of the Circuit Court of the 23rd of July, 1999 stated that the Applicant accepted the Order of the Circuit Court of 29th June, 1998 and continued:-

"It is therefore not an issue of going against the main thrust of the decision made in the case. (The Applicants) issue is his grievance with the conduct ofhis Barrister on the day. I have to weigh up whether I should waive the in camera rule because of that. I think... (the Applicant) has never sought to amend, aver or appeal the content of the Order.. nor does he find fault with the conduct of the Court or the trial judge on that day.

To go back to fundamentals, Family Law has a provision that all Family Law proceedings will be heard in camera. It is a statutory provision and it is there to protect the family, spouse and children and any other person who may be involved in the very hurtful, stressful nature of family breakdown. If it wasn't there there would be mayhem. It is there for the very purpose attaching. It can of course be lifted by discretion of the trial judge but the trial judge must be persuaded that an injustice has taken place and that it is in the publicinterest."

"I find in this case by virtue of the very fact that (the Applicant) never challenged the justice of the Order, and on the question of the public interest in my view the only public interest that he feels in this case is to open up his grievance against his Barrister. I cannot see how that is in the public interest, by virtue of opening up of Pleadings, Orders, Reports which were given in this case. In those circumstances I don't think it is in the public interest that (the) application should be granted".

15 The Applicant, in this Court, puts forward six major grounds of appeal. These are as follows:-

16 (1) The Circuit Court Order made a blanket refusal to waive the incamera rule which was regarded as important to keep sacred and intact. This was expressedto be a personal view and was not supported by authority. In stating that there has not been a case were the Family Law in camerarule had been lifted, the Honourable Judge had no way of knowing that this was so as there are no published statistics (see 6th and final report of the Working Group on a Courts Commission page 65, 2ndparagraph).

17 (2) There are circumstances in which the in camera rule is breached. The Applicant submits that the rule is waived when a witness is allowed to remain after giving evidence: when a McKenzie friend is allowed to assist a lay-litigant: when a Family Law Report is published: when law conferences discuss in camera proceedings: when Barr J. obliged the Eastern Health Board to hand over to the Medical Council a number of family files in E.H.B -v- Fitness to Practice Committee of the Medical Council, High Court 3rd of April, 1998 and in Maguire -v- Drury & Ors [1995] 1 I.L.R.M., 108.Moreover the blanket refusal of the Circuit Court related to five items: the decree of divorce; the Section 14 Order; the Consent Order ruled on by the Court; the report of the consultant psychiatrist and all of the Court Pleadings. Section 14 Orders allowing the ex-spouse to transfer the ownership of the family home to her sole name without his consent is, he submits, a document which is a conveyancing document: the Consent Order is a judgment of the Court which, according to the EuropeanConvention on Human Rights, should be pronounced publicly.

18 The Applicants position with regard to the summary report of the Family Assessment Report made at the previous hearing was not pursued at thishearing.

19 (3) The third ground of appeal is that the Circuit Court judgment is based, in parton hearsay evidence in relation to the view of one of the children, then aged fifteen, despite the Applicant's repeated objections and without adequate safeguards

20 The Children's Act, 1997at Sections 23 and 24, relating to the admissibility of hearsay evidence, was opened to the Court. Reference was also made to...