O'Reilly v Commissioner of an Garda Síochána

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Allen
Judgment Date04 April 2019
Neutral Citation[2019] IEHC 201
Docket Number[2019 No. 86 P.]
Date04 April 2019
BETWEEN
MÁIRE O'REILLY
PLAINTIFF
AND
COMMISSIONER OF AN GARDA SÍOCHÁNA
DEFENDANT

[2019] IEHC 201

[2019 No. 86 P.]

THE HIGH COURT

Plenary summons – Striking out – Reasonable cause of action – Defendant seeking an order striking out plenary summons – Whether the plenary summons failed to disclose a reasonable cause of action

Facts: The defendant, Commissioner of An Garda Síochána, applied to the High Court for an order pursuant to O. 19, r. 28 of the Rules of the Superior Courts striking out the plenary summons issued in this case on 7th January, 2019 on the grounds that it failed to disclose a reasonable cause of action. Alternatively, the defendant applied for an order pursuant to the inherent jurisdiction of the court dismissing the action on the grounds that it was an abuse of process because the issues raised were res judicata. The defendant moved also for an order restraining the plaintiff, Garda O’Reilly, from bringing any other proceedings before the High Court or any other court in the State in respect of disciplinary proceedings commenced pursuant to the Garda Síochána (Discipline) Regulations, 2007, without the prior permission of the court: a so called Isaac Wunder order. On 31st January, 2019 an affidavit of Superintendent Deely was filed on behalf of the defendant in response to the plaintiff’s application for an interlocutory injunction and in support of the defendant’s motion. Superintendent Deely set out the history of 2014 proceedings, explained the circumstances in which the Appeal Board had been reconstituted and the appeal hearing reconvened, and suggested that this action was substantially the same as that previously brought.

Held by Allen J that, on the authority of Aer Rianta cpt v Ryanair Ltd [2004] 1 IR 506, O. 19, r. 28 only applies where it is sought to strike out an entire pleading. Allen J did not believe that this was such a case. Regarding the defendant’s alternative claim for an order pursuant to the inherent jurisdiction of the court dismissing the action on the grounds of res judicata, Allen J did not believe that such an order would be appropriate. The defendant having failed to satisfy the court that the plaintiff’s action was in its entirety frivolous or vexatious, Allen J did not believe that it was appropriate to make an Isaac Wunder order. Allen J held that the plaintiff was not precluded from challenging the 2010 or 2011 inquiries. Allen J held that if the plaintiff engaged with the Appeal Board and was dissatisfied with the outcome, she would be entitled to seek to challenge that. Such a challenge would be encompassed by the order sought by the defendant and, for that reason alone, Allen J would not make such an order.

Allen J proposed to make an order declaring that the plaintiff was not entitled in these proceedings to attempt to re-litigate any claim or issue arising out of the disciplinary proceedings initiated on 22nd May, 2013, in respect of her absence from duty between 7th March, 2012 and 23rd May, 2013, up to and including the reconvening of the Appeal Board, and was not entitled to seek to restrain the defendant from proceeding with the hearing of the plaintiff’s appeal to the Appeal Board. On the plaintiff’s motion for an interlocutory injunction, Allen J held that he would make an order refusing the plaintiff’s motion and discharging the order made on 9th January, 2019.

Application refused.

JUDGMENT of Mr. Justice Allen delivered on the 4th day of April, 2019
Introduction
1

This is an application on behalf of the defendant for an order pursuant to O. 19, r. 28 of the Rules of the Superior Courts striking out the plenary summons issued in this case on 7th January, 2019 on the grounds that it fails to disclose a reasonable cause of action; alternatively, for an order pursuant to the inherent jurisdiction of the court dismissing the action on the grounds that it is an abuse of process because the issues raised are res judicata.

2

The defendant moves also for an order restraining the plaintiff from bringing any other proceedings before the High Court or any other court in the State in respect of disciplinary proceedings commenced pursuant to the Garda Síochána (Discipline) Regulations, 2007 as amended, without the prior permission of the court: a so called Isaac Wunder order.

Background
3

Garda Máire O'Reilly the plaintiff, joined An Garda Síochána in 1994 and was attested on 14th December, 1995. She served in Dun Laoghaire and Cabinteely Garda Stations until 1999 when she was transferred to Garda Headquarters in the Phoenix Park. In January, 2006 the plaintiff was transferred, at her own request, to Ballymote Garda Station and from there, on 19th September, 2006 the plaintiff was transferred to Manorhamilton Garda Station.

4

From 22nd March, 2008 until 31st December, 2009 the plaintiff was on certified sick leave. Since 1st January, 2010 the plaintiff has not submitted medical certificates in respect of her absence from duty and, in accordance with the provisions of the Garda code, was removed from the payroll with effect from that date.

5

On 21st December, 2009 the plaintiff made a formal complaint of bullying at work, which ran to 90 pages. The complaint was investigated by a Chief Superintendent and was not upheld. The plaintiff was notified of the outcome of that investigation by letter dated 3rd August, 2001. The plaintiff did not appeal or otherwise seek to challenge the validity of that decision.

6

On 22nd May, 2013, Superintendent Noreen McBrien was appointed as an investigating officer under the Garda Síochána (Discipline) Regulations, 2007 to investigate the plaintiff's continued absence without leave from 7th March, 2012 to 23rd May, 2013. The plaintiff was notified of that investigation but did not engage with it.

7

On 13th November, 2013 Superintendent McBrien made her report and on 16th December, 2013 a board of inquiry was established to determine whether the plaintiff's conduct amounted to a breach of discipline. The inquiry was scheduled to take place on 26th June, 2014 but, on the plaintiff's application, was adjourned, peremptorily against the plaintiff, to 24th July, 2014. On 24th July the plaintiff applied ex parte to the High Court for an interim injunction restraining the inquiry. The High Court refused to grant an interim injunction but did give the plaintiff liberty to effect short service of a motion for an interlocutory injunction.

8

The board of inquiry proceeded, as planned, on 24th July, 2014. The plaintiff did not attend.

9

The board of inquiry recommended to the Commissioner of An Garda Síochána that the plaintiff be dismissed, and on 5th September, 2014 the plaintiff was given notice of her dismissal. She did not seek to challenge the decision of the board of inquiry by way of judicial review but instead, by a notice dated 12th September, 2014 exercised her right, under the Regulations, to appeal.

The plaintiff's 2014 action
10

The focus of the plenary summons issued by the plaintiff on 24th July, 2014 was on the board of inquiry due to take place that day. On 30th July, 2015, pursuant to leave of the court granted on 23rd July, 2015, the plaintiff amended her plenary summons to claim, inter alia:

1. An injunction restraining the defendant from proceeding with inquiries under the Garda Síochána (Discipline) Regulations, 2007 pending supply by the defendant to the plaintiff of all requested documentation, including her medical file and personnel file.

2. An order that all inquiries under the Garda Síochána (Discipline) Regulations, 2007 be determined together and not in isolation of one another.

3. An order prohibiting any further steps in any disciplinary inquiry, disciplinary proceedings, and internal appeal.

4. An order restoring the plaintiff's pay from March, 2008, including loss of earnings in respect of overtime, weekend and night duty pay.

5. An order transferring the plaintiff from Manorhamilton Garda Station to Garda Headquarters.

11

In her statement of claim delivered on 13th August, 2005 the plaintiff pleaded that following informal reports to her superiors, she lodged a detailed 90 page formal complaint to the Garda Commissioner on 21st December, 2009. She alleged that one week later she was taken off the payroll, without notice, and since had been paid no money. She alleged that her formal complaint had never been investigated and that no transfers had been effected out of the region where the alleged breaches allegedly took place.

12

One of the plaintiff's complaints in her 2014 action was that in an apparent attempt to encourage her to drop her formal complaint, the defendant commenced two separate but mutually contradictory disciplinary inquiries against her, one stating that she was failing to turn up for work and the other that she was failing to undergo medical treatment. She pleaded that when she pointed out these contradictions to the defendant, the defendant responded by quietly shelving one of the two disciplinary inquiries, without explanation.

13

The plaintiff complained that the disciplinary hearing on 24th July, 2014 had been held in her absence and that thereafter her dismissal had been fast tracked. She claimed to have suffered irreparable and catastrophic financial loss and reputational damage and had been denied the opportunity to advance her career.

14

The plaintiff's action was heard before the High Court (O'Connor J.) between 30th March, 2017 and 6th April, 2017. For the reasons given in an ex tempore judgment delivered on 6th April, 2016, O'Connor J. dismissed the plaintiff's claim.

15

The plaintiff appealed.

16

On 16th February, 2018 the Court of Appeal (the President, Irvine and Hedigan JJ.) dismissed the plaintiff's appeal. In a judgment with which the other members of the court concurred, Irvine J. said:

‘48. It is also perhaps appropriate at the conclusion of this judgment to make a number of...

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