O'Reilly v Cassidy (No. 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Feargus M. Flood
• Judgment Date: 01 January 1995
• Neutral Citation: 1995 WJSC-HC 1437
• Docket Number: No. 151 J.R./1994
• Court: High Court
• Date: 01 January 1995

1995 WJSC-HC 1437

THE HIGH COURT

No. 151 J.R./1994

No. 197 J.R./1994

O'REILLY v. CASSIDY

JUDICIAL REVIEW

AND

JUDICIAL REVIEW

BETWEEN

MARY O'REILLY

APPLICANT

AND

HIS HONOUR JUDGE CASSIDY THE CIRCUIT JUDGE OF THE WESTERNCIRCUIT

FIRST NAMED RESPONDENT

AND

SUPERINTENDENT J.J. SUGRUE OF AN GARDA SIOCHANA, TUAM IN THECOUNTY OF GALWAY

SECOND NAMED RESPONDENT

AND

JOHN L. GARVEY, MICHAEL BROGAN, MATTIE POWER, DYMPNAMcDERMOTT, HENRY O'HARA, ANNE MOONEY, MARGARET KEAVENEY, LINDA MURPHY,KATHLEEN McDERMOTT, EAMON PHELAN, CHRISTINA HENNIGAN, PHILOMENA GARVEY,JOE DIVILLY, MARCUS KEANE, J.J. REFTERY, JOE McHUGH, CAROLINE MANNIONAND WILLIAM MANNION

THIRD NAMED RESPONDENTS

Citations:

O'CALLAGHAN V CLIFFORD 1993 3 IR 603

HEALY, STATE V DONOGHUE 1976 IR 325

CORRIGAN V IRISH LAND COMMISSION 1977 IR 317

O'NEILL V BEAUMONT HOSPITAL BOARD 1990 ILRM 419

METROPOLITION PROPERTIES LTD V LANNON 1968 3 AER 304

Synopsis:

CONSTITUTION

Personal rights

Fair procedures - Litigation - Party - Apprehension - Judge - Bias - Family relationship between judge and counsel - Whether reasonable grounds for apprehension - (1994/151 JR - Flood J. - 4/8/94) [1995] 1 ILRM 311

|O'Reilly v. Cassidy|

JUDGE

Bias

Litigation - Party - Suggestion - Request - Trial of action by another judge - Suggestion rejected by trial judge - Whether reasonable person would apprehend unfairness - (1994/151 JR - Flood J. - 4/8/94) [1995] 1 ILRM 311

|O'Reilly v. Cassidy|

1 Judgment of Mr. Justice Feargus M. Flooddelivered this day of August, 1994 4th August 1994.

2 The first of the above named proceedings (J.R. 151/1994) comes before the Court pursuant to an Order of the Supreme Court dated the 12th day of May, 1994 which granted liberty to the Applicant to apply to the High Court by way of application for Judicial Review for an Order of Certiorari quashing an Order made by the First named Respondent at the Circuit Court at Galway on the 3rd day of May, 1994 (which allowed objections (upon appeal) from the District Court) to the renewal of the Applicant's seven day ordinary publican's licence for premises situate at Glenamaddy in the County of Galway on the following grounds:-

3 1. That there is a want of fairness in the procedures adopted and followed by the First named Respondent in the Circuit Court in that he refused to grant an adjournment for 45 minutes to permit Counsel for the Applicant to examine documents.

4 2. The First named Respondent was disqualified from sitting to hear this appeal by reason of his relationship to Counsel for the Second named Respondent.

5 The second of the said proceedings, namely, J.R. No. 197/1994 comes before this Court pursuant to an Order of Mr. Justice Geoghegan dated the 20th day of June, 1994 givingliberty to apply by way of Judicial Review for:-

6 1. An Order of Certiorari quashing the Order made by the learned First named Respondent sitting at Galway as the Circuit Judge of the Western Circuit on the 3rd day of May, 1994 wherein he allowed the appeals of objectors to the renewal of the Applicant's licence, against the renewal of the said licence by the Judge of the District Court. This latter Order is simply an amended version of the first recitedOrder.

7 2. Alternatively for an Order of Mandamus directing the First named Respondent to rehear and determine the appeal against the renewal of the Applicant's said licence.

8 And further and other relief as in the said Order recited upon thegrounds:-

9 (1) That the Order of the learned First named Respondent was made without jurisdiction or in excess of jurisdiction and/or contrary to the principles of natural and constitutional justice in not stating the grounds on which the appeals were allowed and the application for the renewal of the Applicant's licence was refused.

10 (2) Further or in the alternative that there is an error on the face of the record in that the Order of May 3rd, 1994 did not set out the grounds of refusal as required by statute.

11 And upon further and other grounds in the said Order set forth.

THE FACTS

12 The Applicant in this matter was at all times material hereto the holder of a seven day intoxicating liquor licence attached to the premises situate at Glenamaddy in the County of Galway known as the "Four Roads" Public House.

13 At the annual licensing District Court at Glenamaddy on September 10th, 1993 the Second named Respondent and the Third named Respondents objected to the renewal of the Applicant's said intoxicating liquorlicence.

14 The Second named Respondent objected upon the grounds:-

15 1. That the licensee did not operate the premises and have control over it.

16 2. That the licensee was an unfit person to hold a licence as she had done nothing to deal with many cases of disorderly conduct on the premises and on the street adjacent thereto during the past twelvemonths.

17 The Third named Respondents" objection was along broadly the same basic lines.

18 Judge Bernard Brennan of the District Court duly heard the said objections and disallowed both objections by Order dated October 28th, 1993. The Second and Third named Respondents appealed the said Order of the District Court by Notice of Appeal dated October 19th, 1993 and October 18th, 1993 respectively.

19 The said appeal was first listed before the First named Respondent, the Circuit Judge for the Western Circuit, on January 18th, 1994. As it was likely to take some time it was adjourned to March 21st, 1994. On March 21st, 1994 the Applicant was represented by Junior Counsel, the Second named Respondent by Miss Constance M. Cassidy, Junior Counsel,instructed by the State Solicitor for Galway East. Miss Cassidy is an experienced Junior Counsel and an acknowledged authority on licensing matters. The First named Respondent is her father.

20 When the case was called, Miss Cassidy opened the case for the Second named Respondent and called members of the Gardai to give evidence in support. No objection whatsoever was taken at or prior to the commencement of the proceedings to Miss Cassidy appearing for the Second named Respondent nor to the First named Respondent presiding over the proceedings. The evidence of the Gardai related, inter alia, to the number of occasions upon which complaints had been made in respect of the conduct of the premises and the requirements of the Gardai to attend at the premises. In cross-examination the Garda witnesses indicated that no station records were kept in relation to the occasions upon which they attended at the said licensed premises and that they relied entirely upon their individual notebooks and the notes therein. Counsel for the Applicant, it would appear, raised a number of procedural objections in the course of the day which were in fact disallowed by the First named Respondent. Towards the end of the day Miss Cassidy indicated that the State's evidence was complete and the Third namedRespondents" Counsel indicated an intent to call some four witnesses. In the circumstances the matter was adjourned to May 3rd,1994.

21 On or about March 24th, 1994 a Notice to Produce documents was served on the Solicitor for the Second named Respondent. Said Notice to Produce required the production in Court of "inter alia all Garda records held at Tuam Garda Station, and at Glenamaddy Garda Station or within the power of procurement of the parties and witnesses to be called byhim and specifically all diaries, day books, complaints books or occurrence books and all notes and correspondence by the Objector between him and the witnesses for the Objector in regard to the issues and evidence tendered to the Court on the Objector's behalf".

22 The resumed hearing of the matter commenced at or about 12 noon on May 3rd. In the course of a number of objections, Counsel for the Applicant stated that no one, including Counsel for the Second named Respondent, had furnished to him the documents requested in the said Notice to Produce. It was then pointed out that the documents in question had been in Court since 10 o'clock on that morning and that no request for inspection had been received by anyone on behalf of the Second named Respondent. At that point in time Counsel for the Applicant requested the First named Respondent, the trial Judge, for an adjournment of 45 minutes to inspect the documents in question. The Second named Respondent indicated that he considered that there had been adequate...