Re Zwann

• Jurisdiction: Ireland
• Judgment Date: 23 July 1981
• Date: 23 July 1981
• Docket Number: [S.C. No. 320 of 1980]
• Court: Supreme Court

Application of Zwann

In the Matter of Article 40 of the Constitution: Cornelis Zwann and Others

Applicants

[S.C. No. 320 of 1980]

Supreme Court

Practice - Procedure - Certiorari - Habeas corpus - Absolute orders made in first instance - Propriety - Inconsistent with provisions of Constitution - Natural justice - Audi alteram partem - Rules of the Superior Courts, 1962 (S.I. No. 72), Or. 84, rr. 2, 9 - Constitution of Ireland, 1937, Article 40.

Section 233A of the Fisheries (Consolidation) Act, 1959, provides that in certain circumstances a peace commissioner may make an order authorising the detention of a boat, and the persons on board it, for a period of 48 hours if the peace commissioner is satisfied that a contravention of certain enactments by a person on board the boat "is suspected by the sea fisheries protection officer." On the 8th December, 1980, at the hearing of a complaint made by the Attorney General, a peace commissioner made an order under that section authorising the detention of the applicant and others, being the master and crew of a foreign trawler. In showing jurisdiction, the order of the peace commissioner, instead of following the words of s. 223A of the Act of 1959, recited that a particular sea fisheries protection officer was satisfied that a contravention of the relevant enactments by a person on board the boat was suspected.

On the next day the applicant applied ex parte to the High Court for a conditional order of certiorari quashing the order of the peace commissioner, unless cause were shown to the contrary. At the hearing of the application the judge, having held that the order of the peace commissioner was bad on its face, made an absolute order of certiorari quashing that order and, as the authority for the applicant's detention depended solely on the validity of the order of the peace commissioner, the judge then made an absolute order of habeas corpus directing the release of the applicant and his crew. After the applicant and his crew had regained their freedom and had left Ireland, the Attorney General appealed to the Supreme Court against the orders made in the High Court.

Held by the Supreme Court (O'Higgins C.J., Griffin and Kenny JJ.), in allowing the appeal, 1, that the Court would exercise its jurisdiction to hear and determine the appeal notwithstanding the departure of the applicant from the State.

2. That, although order 84, r. 9, of the Rules of the Superior Courts expressly permits an absolute order of certiorari to be made in the first instance, the circumstances existing at the hearing of the application in the High Court did not warrant the grant of an absolute order of certiorari which quashed the order of the peace commissioner without giving the Attorney General an opportunity to contest the application.

3. That, accordingly, the absolute order of certiorari should be set aside.

4. That the absolute order of habeas corpus should also be set aside as it had been granted as consequential relief.

Quaere: Whether the provisions of order 84, r. 2, of the Rules of the Superior Courts permitting an absolute order of habeas corpus to be made in the first instance is a valid procedure having regard to the two-stage procedure expressly enacted in Article 40, s. 4, sub.-s. 2, of the Constitution and applicable to the remedy for unlawful detention there provided.

Cases mentioned in this report:—

¹ R. v. Electricity Commissioners [1924] 1 K.B. 171, 205.

² The State (Crowley) v. Irish Land Commission [1951] I.R. 250.

³ The State (Taylor) v. Circuit Court Judge of Wicklow [1951] I.R. 311.

⁴ In re Singer (1960) 98 I.L.T.R. 112.

⁵ The State (M. Woods) v. Kelly [1969] I.R. 269.

⁶ R. (O'Neill) v. Justices of County Tyrone [1917] 2 I.R. 96.

⁷ Condon v. Minister for Labour [1981] I.R. 62.

⁸ The State (Browne) v. Feran [1967] I.R. 147.

⁹ The State (Dillon) v. Kelly [1970] I.R. 174.

Appeal from the High Court

On the 8th December, 1980, a peace commissioner, at the hearing of a complaint by the Attorney General, made an order pursuant to s. 233A of the Fisheries (Consolidation) Act, 1959, detaining the applicant and others at the port of Killybegs for a period of 48 hours from 4.35 p.m. on that day. On the next day the applicant applied ex parte to the High Court (Barrington J.) for a conditional order of certiorari quashing the order of the peace commissioner, unless cause were shown to the contrary. The judge made an absolute order of certiorari and an absolute order of habeas corpus releasing the applicant and others from their detention under the order of the 8th December. The applicant and the others, being the master and crew of a foreign trawler, then left the State. The Attorney General appealed to the Supreme Court from the order of the High Court.

Order 84, r. 2, of the Rules of the Superior Courts, 1962, provides:— "An application for an order of habeas corpus ad subjiciendum shall be by motionex parte for a conditional order, provided that where the Court may be of opinion that the order should issue forthwith an absolute order may be made in the first instance."

Order 84, r. 9, provides:— "An application for an order of certiorari shall be by motion ex parte for a conditional order, provided that where the Court is of opinion that the order should issue forthwith, an absolute order may be made in the first instance."

The appeal was heard by the Supreme Court on the 28th May, 1981.

Cur. adv. vult.

O'Higgins C.J.

This is an appeal brought by the Attorney General in which he calls into question the making by Mr. Justice Barrington, on the 9th December, 1980, of absolute orders of certiorari and of habeas corpus relating to the detention at the port of Killybegs of the fishery trawler named Jan Maria and its master and crew. Both the order of certiorari and the order of habeas corpus were contained in an order of the High Court dated the 9th December, 1980. The relevant facts appear to be as follows.

On the 8th December, 1980, The L. E. Aoife (under...