State (Fitzsimons) v Kearney

• Jurisdiction: Ireland
• Judgment Date: 01 January 1981
• Neutral Citation: 1978 WJSC-HC 1280
• Date: 01 January 1981
• Docket Number: [1978 No. 415 SS.],No. 415 S.S./1978
• Court: High Court

1978 WJSC-HC 1280

THE HIGH COURT

(STATE SIDE)

No. 415 S.S./1978

State (FITZSIMONS) v. KEARNEY

BETWEEN:

THE STATE (RAYMOND FITZSIMONS)

.v.

DISTRICT JUSTICE DONAL KEARNEY

1 Judgment delivered by the President this 28th day of May1979

2 This is an application on behalf of the presecutor for an order extending the time for the service of a Conditional Order of Certiorari arising out of the following facts.

3 On the 28th day of July 1978 the prosecutor obtained from Mr. Justice D'Arcy a Conditional Order of Certiorari directed to the respondent to send before the Court for the purpose of being quashed an order made by the respondent on the 30th January 1978 whereby he convicted the prosecutor of offences under the Road Traffic Act and ordered him to be imprisoned for six months.

4 The grounds upon which the prosecutor had obtained the Conditional Order were that at the time of the alleged offence and at the time of his conviction he was under 17 years of age whereas he had represented his age to a member of the Carda Siochana who charged him as being over 17 and that accordingly the learnedrespondent lacked jurisdiction to hear his case in the ordinary District Court, that the sentence of imprisonment imposed on him was one prohibited by Statute and that no inquiry as to his age was made or conducted by the learned respondent. The Conditional Order directed that it was to be served on the Chief Clerk of the Dublin Metropolitan District Court on behalf of the respondent and on the Chief State Solicitor on behalf of the Director of Public Prosecutions but did not provide any extended time for such service. The affidavit of the solicitor for the prosecutor in the application before me indicates that due to an oversight in his office the Conditional Order was neverserved.

5 The prosecutor had apparently, in addition to seeking a Conditional Order of Certiorari appealed against the conviction of him by the respondent and that appeal has been adjourned from time to time in the Circuit Court upon the application of the prosecutor in these proceedings, apparently upon the grounds that he had obtained a Conditional Order of Certiorari which was awaiting a hearing. The sentence of imprisonment imposed has not therefore been served by theprosecutor.

6 An application was then made on notice to the respondent on the 8th May 1979 for an extension of time for the service of theConditional Order of Certiorari made on the 28th July 1978. The matter having come on for hearing before me on the 21st of May 1979 was argued on behalf of the prosecutor and of the respondent and I reserved judgment on the question as to whether I had jurisdiction to extend the time and if I had as to whether in my discretion I should do so.

7 The material provisions of the Superior Court Rules are firstly Order 84 Rule 45 which provides as follows:

"Every Conditional Order shall be filed in the Central Office and served together with a copy of the Grounding Affidavit (if any) with in 10 days from the day the same shall be pronounced unless further time be allowed by the Court; and in default thereof such Conditional Order shall stand discharged."

8 Also relevant is Order 108 Rule 7 which reads as follows:

"The Court shall have power to enlarge or abridge the time appointed by these Rules or fixed by any Order enlarging time for doing any act or taking any proceeding upon such terms (if any) as the Court may direct and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed."

9 It was, in effect, contended on behalf of the prosecutor that the latter Rule superseded the provisions of Order 84 Rule 45 that there was a clear jurisdiction in the Court therefore to extend by Order now made the time of 10 days provided for the service of the Conditional Order so as to permit the original Conditional Order made on the 28th July now to be served on the respondent. The issue, it was submitted, and the only issue which would arise is as to whether that discretion should be exercised or not, that in this case there were no grounds for saying that the respondent would be prejudiced or that injustice could occur by reason of extending the time at this stage.

10 On behalf of...