Re Earle

• Jurisdiction: Ireland
• Judgment Date: 26 October 1938
• Date: 26 October 1938
• Court: Supreme Court

In re Earle.

In the Matter of ANASTACIA MAUREEN EARLE,an infant, and In the Matter of the COURTS OF JUSTICE ACT, 1924, and In the Matter of the CONSTITUTION OF SAORSTÁT saorstát EIREANN (1)

Supreme Court.

Contempt of Court - Order of habeas corpus - Order attaching person failing to make return - Jurisdiction of High Court - Whether motion to attach necessary - Whether order unconstitutional - Rules of Supreme Court (Ireland), 1905, Or. LII, rr. 1 and 4, Or. LXXXIV, rr. 196 and 213 -Constitution of the Irish Free State (Saorstát Eireann) Act, 1922, Sch. I, Art. 72.

Committal for contempt of Court is not unconstitutional by reason of the provisions of Art. 72 of Schedule I, Constitution of the Irish Free State (Saorstát Eireann) Act, 1922.

So held by the Supreme Court (FitzGibbon, Murnaghan, Meredith and Geoghegan JJ.).

Upon the return day fixed by an order of habeas corpus, the appellant appeared by counsel who stated to the High Court (Hanna J.) that she was unable to have the body of the infant in Court as by the order directed. The High Court ordered that an order of attachment should issue to have before the Court on a day to be thereafter fixed the body of the appellant to show cause why she should not be committed for her contempt in making default in the return to the order of habeas corpus, the order to be stayed pending the determination of an appeal which had been taken in the habeas corpus proceedings. By a subsequent order of the High Court (Hanna and O'Byrne JJ.) the stay was removed and a return day fixed. Upon this return day, the appellant appeared personally in custody, as well as by counsel, and was sworn and examined. The High Court (O'Byrne J.) adjudged her guilty of contempt of Court in failing to make a proper return to the order of habeas corpus and ordered that she should undergo imprisonment in punishment of the said offence and accordingly ordered that she be committed for the said contempt for the term of six calendar months or until she should have sooner purged her contempt. Upon appeal from the latter two orders:

FitzGibbon and Meredith JJ. were of opinion that the High Court, in making the orders, was exercising its inherent jurisdiction to commit for contempt of Court and that the orders were properly made and were valid.

Murnaghan and Geoghegan JJ. were of opinion that the case was not one for the exercise of the Court's inherent jurisdiction and that the orders were irregular by reason of the non-service of notice of motion for attachment.

Accordingly, the Court being equally divided, the orders appealed from stood affirmed.

Application to the Supreme Court on behalf of Bridget Cummins for an order that the order of the High Court made on 25th June, 1937 (directing that an order of attachment do issue against the said Bridget Cummins) and the order and judgment of the High Court made 9th July, 1937 (adjudging the said Bridget Cummins guilty of contempt of Court and ordering her to be imprisoned for six months and to pay the costs of the proceedings) be discharged and set aside.

The grounds of the appeal were:—1, that the said orders and judgment were unconstitutional in that they were

contrary to Art. 72 of the Constitution; 2, that the said orders and judgment were irregular and invalid in that the rules of the High Court were not complied with, and in particular that rules 1 and 4 of Order LII and rules 196 and 213 of Order LXXXIV were not complied with.

A conditional order of habeas corpus to produce the body of the infant Anastacia Maureen Earle had been obtained by her father, Clarence Broderick Earle, the respondent in the appeal.

The facts, so far as material for the purposes of this report, appear from the judgments of the Supreme Court.

Cur. adv. vult.

FitzGibbon J.:—

This appeal is the latest episode—I am not sufficiently sanguine to hope that it will be the last—in a campaign of obstruction to the authority of the High Court which has, in the words of the learned President, been flouted by the appellant.

On the 19th of February, 1937, an order was made by Mr. Justice O'Byrne "that an order of habeas corpus ad subjiciendum do issue directed to Mrs. Bridget Cummins of Glenera, Garnish, in the County of Cork, to have before the Court here or a Judge thereof the body of Anastacia Maureen Earle in her custody as is said together with the day and cause of her being taken and detained by whatsoever name she may be called, then and there to undergo and receive all and singular such things as the Court or a Judge thereof shall consider of and concerning her in this behalf unless cause shown to the contrary in ten days after service of this order upon the said Mrs. Bridget Cummins."

This conditional order was served on Bridget Cummins on February 23rd as appears by the affidavit of the process server, and on the 2nd of March counsel on behalf of Bridget Cummins applied for, and obtained, an extension of time within which to show cause against the conditional order until Thursday, the 11th of March. Upon the 10th of March an affidavit was filed on behalf of Bridget Cummins, which was sworn not by herself but by her daughter, Elizabeth

Frances Earle, the mother of the infant whose custody was in dispute.

This affidavit, which is full of controversial matter, does not even purport to comply with the requirements of the order of February 19th, but it admits expressly that the child Anastacia Earle had been committed to the custody and control of the appellant Bridget Cummins, and that the child was on the 10th of March within the jurisdiction of the Courts of Saorstát Eireann. No affidavit was sworn by Bridget Cummins by way of cause, or to deny that the infant was in her custody or control.

On the 16th of March, 1937, notice of motion to make absolute the conditional order of February 19th was served, and on April 6th notice of motion for leave to use, upon the application, affidavits sworn on March 25th by Clarence Broderick Earle, the father of the child, and his mother Mary Winifred Earle was also served. Upon April 27th the appellant Bridget Cummins swore the only affidavit which even purports to show cause on her own behalf against the making absolute of the conditional order for the issue of an order of habeas corpus. She had been given ten days within which to show cause by the order of February 19th; on the 2nd of March she had been granted an extension of time for showing cause until March 11th; and it was not until April 27th that she condescended to put on affidavit her grounds for opposing the issue of an absolute order. Of course an affidavit which was not sworn until after all extensions of time had long expired could not be used without the special leave of the Court, but so anxious was the Court to see that every opportunity for explanation was given to a litigant in gross default, that she was permitted to use not only her own affidavit but a further affidavit sworn by her daughter on the 11th of May.

From these affidavits it appeared that since the conditional order was granted, and actually since the 11th of March— the extended date fixed for the showing of cause—the child had been taken out of the jurisdiction by the very deponent who had sworn two affidavits on behalf of Bridget Cummins and who had express notice of the conditional order for habeas corpus. The affidavit of Bridget Cummins herself was so palpably evasive that it is not to be wondered at that the Court disallowed the cause shown and made absolute the conditional order, and directed "that an order of habeas corpus ad subjiciendum do issue directed to Bridget Cummins of Glenera, Garnish, in the County of Cork, to have before the Court here or a Judge thereof on Friday, the 11th day of June, 1937, at the hour of 11 o'clock, the body of Anastacia Maureen Earle in her custody as is said together with the day and cause of her taking and detainer by whatsoever name she may be called then and there to undergo and receive all and singular such things as the Court or a Judge thereof shall consider of and concerning her in this behalf."That order was made after hearing counsel for Bridget Cummins, and the learned President, giving the reasons of the Court (himself, Mr. Justice Johnston, and Mr. Justice Hanna) said: "We are not satisfied that Bridget Cummins has acted bona fide in allowing this child to go out of her custody after an order of the Court had been served upon her, and at a time when proceedings were pending. We cannot allow the Court to be flouted in this way, and we will make the conditional order absolute, and allow Mrs. Cummins to make whatever explanation she sees fit. The order will be made returnable in fourteen days from to-day and we will deal then with the question of costs."

On the 8th of June, Bridget Cummins appealed against this order to this Court, but in her notice of appeal studiously refrained from any reference to the merits of the case or to the propriety of disallowing the pretended cause against making absolute the order for habeas corpus. She suggested that the Court was wrong in law in holding that there had been proper service on her of the conditional order, but no ground was offered in support of this contention; she alleged that the Court was wrong in law in holding that Clarence Broderick Earle was entitled to the custody of the infant Anastacia, when in fact the Court had not made any decision at all to that effect, but had made an order to produce the body of the infant in Court to abide the order of the Court; she submitted that the Court was wrong in law in holding that the law applicable for the purposes of determining the rights of the applicant, the father of the child, was the law of Saorstát Eireann—a submission in support of which no argument was, or could be, offered; and, finally, that the Court was wrong in holding that the conditional order should be made absolute notwithstanding that Bridget Cummins no...