Sfar v Judge Brennan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Binchy |
| Judgment Date | 13 December 2018 |
| Neutral Citation | [2018] IEHC 737 |
| Docket Number | 2016 No. 843 JR |
| Court | High Court |
| Date | 13 December 2018 |
[2018] IEHC 737
THE HIGH COURT
Binchy J.
2016 No. 843 JR
AND
Judicial review - Neglect of animals - Ex parte proceedings - Applicant's right to defend proceedings - Whether the proceedings had been adjourned by the applicant
Facts: The applicant was convicted of 19 offences under the Animal Health and Welfare Act 2013 due to neglect of animals in her possession. The proceedings were instituted by way of ex parte application and she was ordered to pay fines, costs, expenses and disqualified from keeping animals for 5 years. In these proceedings the applicant applied for leave for judicial review of the orders against her, thus quashing the conviction. She argued the trial should not have taken place in her absence, as she had previously applied for the proceedings to be adjourned on medical grounds. The applicant also claimed that the respondent was prejudiced against her due to her previous convictions.
Held by Binchey J that the applicant did not properly apply for an adjournment of the proceedings; there was no doubt that the applicant knew that the proceedings against her remained listed for the following day. The applicant did not inform the respondent's solicitor of her intention to make such an application - it was not enough for the respondent to overhear her talking about the issue. In any event, the applicant discussed the issue of adjourning the proceedings with the court clerk only and not the trial judge (even though she is very experienced in such matters and was told by the court clerk she would have to make such an application on the day of the hearing to the judge). In addition, the applicant did not satisfy the court that the respondent was prejudiced against her. It was not sufficient to assert in general terms that the respondent would be biased because they had convicted the individual on previous occasions.
Application dismissed
The applicant was convicted by the first named respondent on 7th July, 2016, in respect of offences under the Animal Health and Welfare Act 2013 (the ‘Act of 2013’), arising out of her neglect of animals in her possession or control. She was convicted of nineteen offences and fined €90 in respect of each offence. She was also ordered to pay costs of €1,500 and expenses of €500. Finally, she was disqualified from keeping animals for a period of five years.
These proceedings come before the Court by way of an application for leave for judicial review of the orders of the first named respondent by which she was convicted, fined and disqualified from keeping animals. The proceedings were instituted by way of ex parte application which came before Humphreys J. who ordered that the respondents should be put on notice of the application and directed that the application be heard by way of ‘ telescoped’ hearing.
In her statement of grounds, the applicant, who is a lay litigant, seeks orders from the court declaring that orders made by the first named respondent in the District Court on 7th July, 2016, concerning the applicant are ‘ either nullities and have no legal effect and should be set aside ex debitio justitiae for breach of due process or for any reason that the court decides should be voided as voidable orders.’ In the event that the court grants such orders, the applicant also seeks ancillary orders, which it is not necessary to set out at this point. In effect, the applicant is seeking to quash her conviction by the District Court in respect of offences with which she was charged before the court on 7th July, 2016, although she does not use the words normally used in such applications.
These proceedings are the culmination of a long history of dealings, including multiple legal proceedings, involving the applicant and the second named respondent. It is unnecessary to summarise here the full history of all proceedings and dealings between the applicant and the second named respondent, but it is desirable to summarise some of that background in order to put in context the charges in respect of which the applicant was convicted. Before doing so I should mention that while the applicant is a lay litigant, she is no ordinary lay litigant. Firstly, she is a gainfully employed civil servant who was, on account of her income, refused legal aid in the defence of the proceedings brought against her. Secondly, the applicant is a law graduate, although she says she is not a qualified barrister or solicitor. Although she says she is not a barrister, however, she also says she is a member of Lincoln's Inn and subject to its code of ethics. Thirdly, the applicant has been involved in no less than 25 judicial review proceedings previously, as recorded in a decision of Twomey J. delivered on 20th June, 2016 ( Sfar v. Minister for Agriculture & ors [2016] IEHC 348). That decision was concerned with two judicial review actions initiated by the applicant by which she sought, unsuccessfully, to challenge the actions of the second named respondent in carrying out the inspections upon her lands that gave rise to her prosecution in the District Court, as well as the service upon her of a welfare notice by the second named respondent pursuant to the Act of 2013. The applicant also appealed the contents of this notice, unsuccessfully in the District Court in accordance with provisions for appeal as set out in the Act of 2013. The applicant then further appealed that adverse decision to the Circuit Court, also unsuccessfully.
It is apparent therefore that the applicant is a person who has significant experience in the conduct of proceedings, and specifically judicial review proceedings, before the Superior Courts, and also has the ability to familiarise herself with the procedures involved in litigation, to conduct litigation on her own behalf and, importantly, to understand the operation of our system of justice. It is also apparent from what the applicant says herself, that she had appeared before the first named respondent previously and on at least one occasion had succeeded in having quashed a conviction imposed upon her by the first named respondent.
The proceedings that gave rise to the conviction of the applicant, challenged in these proceedings, were first listed before the District Court in Dundalk on 3rd September, 2015. The matter was adjourned on that date and in the meantime the applicant issued proceedings by way of judicial review, the sole purpose of which was to apply for a stay of the prosecution, pending the determination of another judicial review initiated by the applicant against the second named respondent. That application (which the applicant made ex parte) was refused by Kearns P. on 4th November, 2015. The applicant appealed that refusal to the Court of Appeal, unsuccessfully.
It appears from a chronology handed into the court that the charges were next listed before the District Court on 3rd March, 2016, and were again adjourned, this time to 7th April, 2016. The applicant again made an application by way of judicial review, ex parte, to stay the hearing of the prosecution pending the determination of her other judicial review proceedings. That application came before Humphreys J. who refused the application on 5th April, 2016.
At the hearing of this application, I directed that a transcript of what transpired in court on 7th April, 2016 and on subsequent occasions should be generated through the DAR. These transcripts were made available to the court and the parties subsequent to the initial hearing of this application. The parties were afforded an opportunity to make submissions on the contents of the transcripts. The transcript for 7th April, 2016, records the presiding judge (not the first named respondent, but Judge Hamill) noting that the summonses were for hearing on that occasion. Counsel for the third named respondent informed the court that the State was ready to proceed with summonses. However, the applicant informed the court that she had an application before the Court of Appeal to stay the proceedings. There was then a long discussion about this and while at no point does the transcript record that the applicant specifically applied for an adjournment of the proceedings, it is clear that her whole purpose in raising the issue was to prevent the proceedings being heard on that date. She told the judge that she had judicial review proceedings relating to the legislation pursuant to which she was being prosecuted, and when the judge asked a question as to whether the judicial review proceedings pending were ‘ to stop these summonses proceeding’ the applicant replied ‘ there (sic) are, Judge’. The clear inference was that part of the relief that she was claiming in the judicial review proceedings which she informed the court were pending, was a stay on the prosecution of the summonses before the court.
In any case the judge then let the matter stand and when the matter was called later on in the day the judge informed the parties that the case was unlikely to be reached. In the course of an exchange, the applicant told the judge that she believed that the case should not be heard until after the Court of Appeal had dealt with her appeal from the decision of Kearns P. on 4th November, 2015. She told the District Judge that the Court of Appeal had seisin of the case. After a further exchange and having heard that the Court of Appeal would be dealing with the applicant's appeal on 13th June, 2016 the judge adjourned the matter to 7th July, noting that it was a two-hour case. There was then a discussion about disclosure of documentation, and counsel informed the court that the State had provided all statements taken in connection with the...
To continue reading
Request your trial