T.D -v- NíChúlacháin and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 19 December 2016
• Neutral Citation: [2016] IEHC 741
• Docket Number: [2016 No. 806 J.R.]
• Date: 19 December 2016

[2016] IEHC 741

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 806 J.R.]

BETWEEN

T.D.

APPLICANT

AND

HER HONOUR JUDGE SINÉAD NÍ CHÚLACHÁIN, IRELAND

AND

ATTORNEY GENERAL

RESPONDENTS

AND

IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

AND

S.D.

NOTICE PARTIES

Family – Family Law Act 1995 – Decree of Judicial separation – Compliance with conditions – Appeal against decree of judicial separation – Judicial review

Facts: Following the dismissal of the first set of judicial review proceedings by the applicant against the order of the District Judge for granting decree of judicial separation, the applicant issued plenary proceedings seeking to challenge the validity of the Family Law Act 1995. The applicant had now instituted the present proceedings for challenging the recent order of the Circuit Court judge for giving effect to the existing ancillary orders. The applicant had also lodged an appeal before the High Court against the impugned order of the Circuit Court.

Mr. Justice Richard Humphreys refused to grant relief to the applicant. The Court held that the present applicant had indulged in the abuse of the process of law by commencing various proceedings before the Court seeking exactly the same relief. The Court found that the applicant had withheld the factum of refusal of the first set of judicial proceedings from the Court. The Court gave liberty to the second notice party and the respondents to bring respective motions for the issuance of the Isaac Wunder order against the applicant so as to prevent him from making any further application without the leave of the Court.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 19th day of December, 2016

1 In T.D. v. Reynolds [2016] IEHC 410 (Unreported, 8th July, 2016), I refused leave to the applicant to seek judicial review in relation to orders made in family law proceedings between him and Ms. S.D. I also refused leave in relation to a range of further reliefs challenging the constitutionality and ECHR compatibility of the Judicial Separation and Family Law Reform Act 1989 and the Family Law Act 1995.

2 I noted in that judgment that the underlying family law proceedings had been commenced ten years ago (record no. FL23/2006 Co. Meath) and were ongoing after a large number of orders, which indicated some difficulty in carrying out the sale of the family home and lands which was ordered by Her Honour Judge Doirbhile Flanagan when she granted a decree of judicial separation on 10th July, 2008.

3 On 12th March, 2009, the applicant appealed the decree of judicial separation and ancillary orders to the High Court. Murphy J. placed a one month stay on the Circuit Court order to allow the applicant to comply with specified conditions of the order. The applicant did not so comply and accordingly the order became operative on 12th April, 2009.

4 On 20th April, 2009, the applicant applied to the High Court for leave to seek judicial review of Judge Flanagan's order as well as seeking declarations that provisions of the Family Law Act 1995 were unconstitutional [2009 No. 415 J.R.]. McMahon J. delivered a judgment on 6th November, 2009, refusing the order sought on the basis that judicial review was not the most appropriate remedy and by reason of excessive delay. The applicant did not disclose the existence of this first set of judicial review proceedings which has come to light in submissions from the State.

5 On 12th January, 2010 the applicant issued plenary proceedings ( T.D. v. Ireland [2010] No. 236 P) signed by Mr. David Langwallner B.L. seeking declarations that provisions of the Family Law Act 1995 are unconstitutional and incompatible with the ECHR. The statement of claim, delivered shortly thereafter on 15th February 2010, is signed not by counsel but by solicitors on behalf of the applicant. After what seems to have been a very lengthy period of inactivity the applicant has now issued a notice of intention to proceed signed on 28th November, 2016.

6 The applicant has now for the fourth time brought before the High Court his constitutional and ECHR complaints against the legislation and its implementation, this time prompted by a more recent order of the Circuit Court made by Judge Ní Chúlacháin on 25th July, 2016 in order to give effect to existing ancillary orders.

7 The Central Office appears to have sought to have the applicant amend the title, on filing, so as to refer to ‘ A Judge of the Circuit Court’. While understandable, this does not appear to be the correct procedure because O. 84 r. 22(2A)(b) states that in such circumstances, ‘ the other party or parties to the proceedings in the court concerned shall be named as the respondent or respondents’. The judge should not be a respondent, either by name or indirectly in the ghostly form of ‘ a Judge of the Circuit Court’. The judge should just be struck out, either upon filing of the papers or when the matter comes before a court.

8 I directed that the present leave application proceed as a telescoped hearing and I have heard from the applicant in person, Ms. S.D. in person and from Mr. Robert Kearns, B.L. on behalf of the State. I did not consider it necessary to direct service on the first named notice party and have not had cause to reconsider that view given the absence of any need to consider the merits of the ECHR challenge, as will be seen.

9 The statement of grounds seeks no less than twenty reliefs which are, of course, unnumbered in the version filed on 21st October, 2016. For clarity I will refer to these grounds by a sequential number, although, as I say, no such numbering is actually provided in the applicant's pleadings.

10 Relief 1 is ‘ an order that the first named respondent acted ultra vires and breached this applicant's constitutional rights as well as his ECHR rights’. The nature of the order sought is unspecified. That is not a relief that can be granted. In any event, no basis for the contention that Her Honour Judge Ní Chúlacháin acted ultra vires or breached the applicant's rights has been made out.

11 Relief 2 is a declaration that Judge Ní Chúlacháin failed to comply with s. 2 of the European Convention on Human Rights Act 2003. That contention has not been made out either. The applicant's argument seems to be little more than a dragnet objection to an order made by Judge Ní Chúlacháin on 25th July, 2016, in which she directed that the applicant would vacate the family home and lands by 4th August, 2016, and nominating an auctioneer to have carriage of sale, and attaching and committing the applicant with a stay on that order provided that vacate position occurs by 4th August, 2016. Motions, in this regard, were then adjourned to 26th September, 2016.

12 What needs to be emphasised is that the order of 25th July, 2016 was simply an order giving...