R v R

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 16 February 1984
• Date: 16 February 1984
• Docket Number: [1982 No. 520 Sp.]

R. v. R.

R

and

R

[1982 No. 520 Sp.]

High Court

Constitution - Courts - High Court- Jurisdiction - Enactments conferring jurisdiction on Circuit Court and District Court - Whether jurisdiction of High Court ousted - Whether enactments valid - Rules of the Superior Courts, 1962 (S.I. No. 72), Or. 60 - Guardianship of Infants Act, 1964 (No. 7), s. 5 - Family Law (Maintenance of Spouses and Children) Act, 1976 (No. 11), s. 23 - Courts Act, 1981 (No. 11), ss. 12, 15 - Family Law (Protection of Spouses and Children) Act, 1981 (No. 21), ss. 1, 2 - Constitution of Ireland, 1937, Articles 34, 36.

Section 2 of Article 34 of the Constitution states that the Courts shall comprise courts of first instance and a court of final appeal. Section 3, sub-s. 1, of that Article states that the courts of first instance shall include a High Court invested with "full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal." Article 36 of the Constitution states (inter alia) that, subject to the preceding provisions of the Constitution, the constitution and organization of the Courts, the distribution of jurisdiction and business among the Courts and the judges and all matters of procedure, shall be regulated "in accordance with law."

The plaintiff, being the wife of the defendant, issued a summons in the High Court in which she claimed certain reliefs under (inter alia) the Acts of 1964 and 1976, and the second Act of 1981. Section 5 of the Act of 1964, as enacted originally, stated that the jurisdiction conferred on a court by Part II of that Act might be exercised by the High Court; but the s. 5 substituted therefor by the Courts Act, 1981, contained no reference to the High Court in declaring that the said jurisdiction may be exercised by the Circuit Court or the District Court. Section 23 of the Act of 1976, as originally enacted, stated that the High Court, the Circuit Court (on appeal from the District Court) and the District Court might exercise concurrently jurisdiction to determine proceedings under ss. 5, 6, 7 and 9 of the Act of 1976; but the s. 23 substituted therefor by the Courts Act, 1961, contained no reference to the High Court in declaring that the Circuit Court and the District Court shall have jurisdiction to determine those proceedings. Section 2, sub-s. 1, of the second Act of 1981 states that "the Court" may make a barring order and by s. 1 defines "the Court" as the Circuit Court or the District Court. The plaintiff served on the Attorney General a notice which informed him that issues concerning the validity of the Acts of 1964 and 1976 and the second Act of 1981"may arise in this action" and that the plaintiff would contend that, if the said sections of those Acts purported to restrict or remove the jurisdiction of the High Court to hear the claims made in her summons, those sections were unconstitutional. At the hearing of the plaintiff's motion seeking a ruling of the issues so raised, it was

Held by Gannon J., in determining the said issues, 1, that the jurisdiction of the High Court to hear the claims made by the plaintiff had not been removed or restricted.

2. That the Court might either accept or decline to accept for hearing, in accordance with its own procedures, the claims made by the plaintiff.

3. That the said sections of the Acts of 1964 and 1976 and of the second Act of 1981 were valid enactments having regard to the Constitution.

Cases mentioned in this report:—

¹ Grimes v. Owners of SS. Bangor Bay [1948] I.R. 350.

² Macauley v. The Minister for Posts and Telegraphs [1966] I.R. 345.

³ The State (Browne) v. Feran [1967] I.R. 147.

⁴ In re Haughey [1971] I.R. 217.

⁵ In re McAllister [1973] I.R. 238.

⁶ R.D. Cox Ltd. v. Owners of M.V. Fritz Raabe (Supreme Court: 1st August 1974).

⁷ The People (Attorney General) v. Conmey [1975] I.R. 341.

⁸ Ward v. Kinahan Electrical Ltd.—see p. 292, supra.

⁹ The People v. O'Shea [1982] I.R. 382.

¹⁰ O'B. v. O'B.—see p. 182, supra.

¹¹ East Donegal Co-Operative v. The Attorney General [1970] I.R. 317.

Motion on Notice.

On the 26th May, 1982, the plaintiff issued in the High Court a special summons in which she claimed the reliefs described in the judgment of Gannon J., infra. On the 29th and 30th November, 1983, the Court heard submissions made by counsel on behalf of the plaintiff and counsel on behalf of the Attorney General in regard to the validity under the Constitution of Ireland, 1937, of s. 5 of the Guardianship of Infants Act, 1964, and s. 23 of the Family Law (Maintenance of Spouses and Children) Act, 1976, and ss. 1 and 2 of the Family Law (Protection of Spouses and Children) Act, 1981.

Cur. adv. vult.

Gannon J.

The plaintiff served on the Attorney General a notice dated the 18th October, 1983, pursuant to order 60 of the Rules of the Superior Courts, 1962, requiring the determination by the Court of issues concerning the validity under the Constitution of the statutory provisions mentioned in the schedule to that notice. The schedule refers to s. 5 of the Guardianship of Infants Act, 1964, as amended by s. 15 of the Courts Act, 1981; to s. 23 of the Family Law (Maintenance of Spouses and Children) Act, 1976, as amended by s. 12 of the Courts Act, 1981, and to ss. 1 and 2 of the Family Law (Protection of Spouses and Children) Act, 1981. This hearing has been concerned only with such issues. The notice was not served upon the defendant, but the Attorney General appeared by counsel to argue for the constitutionality of the statutory provisions.

The plaintiff is the wife of the defendant and the parties have three infant children. By special summons the plaintiff claims against the defendant the following reliefs:—

1. Pursuant to s. 11 of the Guardianship of Infants Act, 1964, sole custody of the infant children and contribution for their maintenance and education.

2. Pursuant to ss. 5 and 7 of the Family Law (Maintenance of Spouses and Children) Act, 1976, payments of maintenance sums for herself and the three children.

3. Pursuant to s. 2, sub-s. 1, of the Family Law (Protection of Spouses and Children) Act, 1981, the exclusion of the defendant from the family home by court order.

4. Pursuant to s. 12 of the Married Women's Status Act, 1957, an order declaring her entitled to the entire (or a share) of the ownership of the family home.

5. Pursuant to s. 5 of the Family Home Protection Act, 1976, an order protecting the family home from the defendant's conduct.

6. As primary or ancillary relief, orders restraining the defendant from using the home as a residence and from obtaining access to the plaintiff and the children.

The plaintiff failed to serve the special summons on the defendant personally in the ordinary manner. On the 4th March, 1983, she obtained an order from this Court for substituted service and subsequently she obtained an order of the Master of the High Court giving the 23rd March, 1983, as the return date. Although service was effected in the manner prescribed by court order, the defendant did not appear on the return date. Upon the special summons coming before the Court in the absence of the defendant, the Court could proceed with the hearing in his absence if satisfied, on the balance of probability, that he was aware of the nature of the plaintiff's claim, the issues for determination by the court, and the time and place of the intended court hearing, and that he had a reasonable opportunity to prepare for and attend at the hearing. However, if his failure to appear or to take any step in the proceedings could be consistent with an intention not to admit, or submit to, the jurisdiction of the Court on the reasonably arguable ground that the jurisdiction of the Court is questionable, it would be undesirable to proceed in his absence without first examining the Court's jurisdiction in the matter. In such circumstances the plaintiff served the notice under order 60 of the Rules of 1962 and stated therein, in an indefinite way, that an issue concerning the validity of the statutory provisions "may arise in this action." The notice which was served on the Attorney General states:—

"Take notice that as party having carriage of the above-entitled proceedings, we hereby give you notice, pursuant to Order 60 of the Superior Courts Rules 1962, that an issue as to the validity of the sections of the Acts specified in the Schedule hereto may arise in this action. A preliminary issue as to the jurisdiction of the High Court to hear claims pursuant to (1) section 11 of the Guardianship of Infants Act 1964 (2) section 5 of the Family Law (Maintenance of Spouses and Children) Act 1976 and (3) section 2 of the Family Law (Protection of Spouses and Children) Act 1981 has arisen in these proceedings and the plaintiff will contend at the trial of the said preliminary issue that, if the various sections of the Acts set out in the Schedule hereto purport to restrict or remove the jurisdiction of the High Court to hear such claims by originating summons, the sections are unconstitutional."

Under the adversary system of adjudication by the Court, an issue arises only upon an adverse contention being made by an opposing party. None such has been made. Rules 1 and 2 of Order 60 seem to require that, before proceeding under the rule, a question or dispute must have arisen involving an adverse contention. Order 60 states:—

"1. If any question as to the validity of any law, having regard to the provisions of the Constitution, shall arise in any...