O'Riordan, Dublin County Council

• Jurisdiction: Ireland
• Judgment Date: 03 December 1984
• Date: 03 December 1984
• Docket Number: [1984 No. 609 SP]
• Court: High Court

O'R. v. O'R.

O'R.

Plaintiff

and

O'R.

Defendant

[1984 No. 609 SP]

High Court

Constitution - Courts - Practice Direction - Family law - Enactments conferring jurisdiction on Circuit Court and on District Court - Concurrent jurisdiction vested in the High Court by the Constitution - Whether High Court may decline to exercise its jurisdiction - Whether discretion to decline jurisdiction derives from the Rules of the Superior Courts 1962 (S.I. No. 72), O.49, R. 7, - Guardianship of Infants Act, 1964 (No. 7), s. 11- Family Law (Maintenance of Spouses and Children) Act, 1976 (No. 11) ss. 5, 6, 7, 9 and 23 - Family Law (Protection of Spouses and Children) Act, 1981 (No. 21) s. 1 - Constitution of Ireland, 1937, Article 36.

A practice direction of the High Court requires that in any case where relief is sought in the High Court under the Guardianship of Infants Act, 1964, Family Law (Maintenance of Spouses and Children) Act, 1976 or the Family Law (Protection of Spouses and Children) Act, 1981, the parties should attend before the High Court and submit evidence or arguments as to whether the case is one appropriate for the High Court to exercise its jurisdiction or whether it was one which should be remitted to the Circuit Court or District Court.

The plaintiff issued a special summons in the High Court in which she claimed certain reliefs under the Acts of 1964, 1976 and 1981. Section 23 of the Act of 1976, as originally enacted provided that the High Court, the Circuit Court and the District Court should concurrently have jurisdiction to hear applications under ss. 5, 6, 7 and 9 of that Act. However, s. 1, sub-s. 1 of the amending Act of 1981 defined "the Court" for the purposes of such applications as being the Circuit Court or the District Court, and made no reference to any express jurisdiction of the High Court to deal concurrently with those matters. At the hearing of the application pursuant to the practice direction, it was

Held by Murphy J., in declining to exercise the inherent or constitutional jurisdiction of the High Court to determine the issues between the parties, 1, that the jurisdiction of the High Court to accept or to decline to entertain certain matters was alternative to and independent of its right to remit proceedings to the Circuit Court or District Court pursuant to the Rules of the Superior Courts, O.49, R.7.

R. v. R. [1984] I.R. 296, applied.

2. That the Act of 1981 indicates a clear intention on the part of the Oireachtas that applications under ss. 5, 6, 7 and 9 of the Act of 1976 should be made in the first instance to the court of limited and local jurisdiction.

Dicta of Gannon J. in R. v. R., considered.

3. That, there being no special question of fact or law which would distinguish this case from many others, the refusal of the High Court to exercise its jurisdiction would not result in a denial of justice.

Cases mentioned in this report:—

R.S.T. v. N.D.T. (Unreported, Supreme Court, 3rd May, 1984).

R. v. R. [1984] I.R. 296.

Special Summons.

On 3rd October, 1984, the plaintiff issued in the High Court a special summons in which she claimed relief pursuant to the Guardianship of Infants Act, 1964, s. 11; the Family Law (Maintenance of Spouses and Children) Act, 1976, s. 5, and the Family Law (Protection of Spouses and Children) Act, 1981, s. 1.

A practice direction of the High Court provided as follows.

Guardianship of Infants Act, 1964

Family Law (Maintenance of Spouses and Children) Act, 1976

Family Law (Protection of Spouses and Children) Act, 1981

Having regard to the decision of Mr. Justice Gannon in R. v. R. and The Attorney General delivered on 16th February, 1984, the notice of practitioners is drawn to the following practice direction.

In any case where relief is sought in the High Court, under any of the above-named Acts, the summons shall be returnable before the Master in the ordinary way and thereafter shall be put in the list before the judge sitting for Family Law on a Friday Motion day.

The parties must on that occasion attend and submit such evidence or arguments as they see fit as to whether the case is one appropriate for the High Court to exercise its jurisdiction under one or other of the above Acts or whether it is a case which should be remitted to the Circuit Court or District Court. A decision will then be made on that issue and depending upon the nature of that decision the case will be listed for hearing, but such listing will not determine the appropriate scale of costs, if any, to be awarded which will be subject to the provisions of section 17(4) of Courts Act, 1981.

On the 26th October, 1984, the Court heard submissions made by the solicitor on behalf of the...