De Roiste v Minister for Defence

JurisdictionIreland
JudgeMr. Justice McCracken
Judgment Date28 June 1999
Neutral Citation[1999] IEHC 182
CourtHigh Court
Date28 June 1999

[1999] IEHC 182

THE HIGH COURT

No 438JR/1998
DE ROISTE v. MINISTER FOR DEFENCE, IRELAND & AG
JUDICIAL REVIEW

BETWEEN

DONAL DE ROISTE
APPLICANT

AND

THE MINISTER FOR DEFENCE IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

Citations:

DEFENCE ACT 1954

RSC O.84 r21

TOAL V DUIGNAN 1991 ILRM 135

RAINSFORD V LIMERICK CORP 1995 2 ILRM 561 1981/7/1121

FUREY, STATE V MIN FOR JUSTICE & AG 1988 ILRM 89

Synopsis

Administrative Law

Judicial review; preliminary issue as to delay in commencing proceedings for judicial review; applicant compulsorily retired from the Defence Forces in 1969; leave to apply for judicial review granted in 1998; whether the delay was inordinate; whether the delay was inexcusable; whether applicant discharged onus of showing Court that there is a good reason for extending the period within which application should be made; whether the balance of justice is in favour of or against allowing the case to continue, taking into account the applicant's blameworthiness; O.84, r.21, Rules of the Superior Courts.

Held: Order granted to dismiss the applicant's claim.

De Roiste v. The Minister for Defence - High Court: McCracken J. - 28/06/1999

While the applicant may have suffered a traumatic experience it has not been shown that he was so effected by that experience that he was unable to issue these proceedings over such a lengthy period. The High Court so held in dismissing the proceedings and further saying that there was also the possibility of prejudice to the respondent at having to defend the case after such a delay.

1

Mr. Justice McCracken delivered the 28th day of June 1999

2

These proceedings are an application by way of Judicial Review for a number of reliefs arising out of the compulsory retirement of the Applicant from the Defence Forces which was notified to him on 25th June, 1969, pursuant to the provisions of the Defence Act, 1954and the Defence Force Regulations made thereunder.

3

On 23rd November, 1998 Geoghegan J. extended the time for making the application for leave to apply for Judicial Review, and granted such leave, "with liberty to the Respondents to argue the time point at the hearing of these proceedings." Subsequently, by order dated 18th February, 1999, Kinlen J. ordered that a preliminary issue be heard seeking an Order dismissing or staying the Applicant's claim herein on the grounds that there has been inordinate and/or inexcusable delay in the commencement of the proceedings herein. It is this preliminary issue which I now have to determine.

4

Order 84 Rule 21 of the Superior Court Rules provides:-

"an application for leave to appeal for Judicial Review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is Certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made".

5

The primary provision, therefore, is that an application for Judicial Review must be made promptly, and it is only a secondary provision that, in any event, the application must be made within the stated time depending on the nature of the application. It would appear, therefore, that an application for Judicial Review may fail even if it is made within the stated time unless it is also made promptly. There is, however, the overall power of the Court to extend the period where the Court considers there is good reason to do so. While it may not be an absolute rule, I have no doubt that in the vast majority of cases the onus is on the Applicant to produce evidence to show such a good reason.

6

Before turning to the reasons furnished by the Applicant, I should comment on one further matter which was raised on his behalf. It is said that this is simply a rule in the Superior Court Rules, and is not a statutory limitation. This is undoubtedly true, and indeed it is probably for this reason that the Court was given an express power to extend the time without limitation. While it might be interesting to analysis the exact effect of a rule such as this, I do not think it is necessary to do so in this case because of the length of the delay.

7

In the Grounding Affidavit the Applicant has set out in detail his account of the events which took place in 1969 which led to his enforced retirement. For the purpose of this application I am not concerned with the merits of his case, save insofar as they may affect the question of delay. He makes the case that he was interrogated at considerable length over a period, that on 27th June, 1969, without any warning, he was furnished with a letter stating his retirement, and was given twelve hours to leave the barracks. He was told by his father that he would not be welcome then, or ever, to return home. He emigrated in 1971 and worked on and off in Britain and in the United States.

8

It should be noted that during the period in which he was under investigation he contacted a Solicitor and was advised to request a Court Martial, which he did. In fact to Court Martial was held, which is one of his complaints in the Judicial Review proceedings. At paragraph 15 of his grounding. Affidavit he says that the Solicitor concerned did not act for him nor did he institute proceedings on his behalf, and that the said Solicitor has discontinued practice and left the country. The Applicant is very vague as to his contacts with the Solicitor, and in particular does not state whether he contacted the Solicitor after his retirement, or whether he obtained any advice from him at that stage. What is clear is that he was aware that he was in need of legal advice.

9

In the Autumn of 1997 the Applicant's sister Adi Roche was a candidate in the Presidential elections. The Applicant avers that the whole episode of his retirement was resurrected by the media at that time, which he found extremely traumatic, as I do not doubt was the case. After this, the Applicant undoubtedly attempted to reopen his case, and he wrote to the President and to the Minister for Defence. In relation to the period between 1969 and the Presidential election in 1997, the Applicant himself has given virtually no evidence to explain his inaction. What he says at paragraph 17 of his grounding Affidavit is:-

"I say that the effect of the decision terminating my military service and the consequence of same caused a major upset and trauma in my life. I say that my father's prohibition on my returning to the family home has continued ever since. I say that for years after my retirement I was extremely upset, prone to nightmares and feelings of paransia. I say that I still suffer from nightmares some thirty years later. Following my retirement, I had no financial resources, I lost all self esteem and the ambition and drive which I previously held as a Commissioned Officer. I say that since my retirement I have suffered from depression and that it is only in the past twelve months that I have been able, with the assistance of a Counsellor to address the whole episode and the effect on my life. I say that with the assistance of my Counsellor, I have been able to confront the wrong that was done to me and only now, with my Counsellor's support, have I been able to build the resolve to bring this matter before this Honourable Court for redress and vindication of my constitutional rights."

10

He does also say in his replying Affidavit of 10th February, 1999 at paragraph 10, after rejecting the assertion that he had provided no valid reasons for delay:-

"I beg to refer to my Affidavit grounding the application wherein I set out that I was given twelve hours to get out of barracks and I was similarly cast out to civilian life with a scar on my character and on my record of military service. I described how I was damaged mentally and emotionally. I say that I was homeless. My family was devastated by the sudden...

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