T.D. v S.D. Ireland and the Attorney General and anor

• Jurisdiction: Ireland
• Judgment Date: 10 November 2017
• Neutral Citation: [2017] IESCDET 114
• Date: 10 November 2017
• Court: Supreme Court

[2017] IESCDET 114

THE SUPREME COURT

DETERMINATION

Between:

T.D.

Applicant

-and-

-and-

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

Notice Party

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the applicant to appeal to this Court from the judgment and order of the High Court

REASONS GIVEN:

1 This determination relates to an application for leave to appeal to the Supreme Court from a judgment and order of the High Court (Barr J.) dated the 9th December, 2016, and also from a second judgment of the High Court (Humphreys J.) delivered on the 19th December, 2016, and the resulting orders of that Court made on the same day and perfected on the 21st December, 2016.

2 Mr. T.D., referred to in this Determination as ‘the applicant’, is a lay litigant who seeks leave to appeal to this Court from the said judgments and orders of the High Court.

3 Ms. S.D., who opposes the application, is referred to in this Determination as ‘the first named respondent’. Ireland and the Attorney General also oppose the application and are referred as ‘the State respondents’. All three respondents are collectively referred to as ‘the respondents’.

Jurisdiction

4 The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. What is sought in this application is what is colloquially known as a ‘leap-frog’ appeal directly from the High Court to the Supreme Court, bypassing the Court of Appeal. The threshold for such an appeal is higher than that in respect of an appeal from the Court of Appeal. As is clear from the terms of Article 34.5.4° of the Constitution, it is necessary, in order for this Court to grant leave to appeal directly from a decision of the High Court, that the Court is satisfied that there are exceptional circumstances warranting a direct appeal, a precondition to which is the presence of either or both of the following factors: i) that the decision sought to be appealed involves a matter of general public importance, or ii) the interests of justice.

5 Any ruling in a determination is a decision particular to that application and is final and conclusive only as far as the parties are concerned. The issue calling for the Court's consideration is whether the facts and legal issues meet the constitutional criteria as above identified. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value relative to the substantive issues, if and when such issues should further arise in a different case. Where leave is granted on any issue, that matter will in due course be disposed of in the substantive decision of the Court.

Background and Procedural History

6 A fuller history of the proceedings can be found in T.D. v. Her Honour Judge Leonie Reynolds [2016] I.E.H.C. 410 and T.D. v. Judge Sinéad Ní Chúlacáin [2016] I.E.H.C. 741. What is presented here is a summary for contextual purposes only.

7 The applicant and his wife, the first named respondent in this application, have been involved in long running judicial separation proceedings, commenced some eleven years ago in their local Circuit Court. This litigation has led to a large number of orders being made by the Circuit Court. These included (a) an order of Her Honour Judge Doirbhile Flanagan of the 10th July, 2008 granting a decree of judicial separation and directing the sale of the family home and lands and the division of the proceeds of sale; (b) an order of Judge Flanagan of the 6th July, 2011 providing that the sale is to proceed by private treaty; (c) an order of Judge Flanagan of 6th December, 2011 providing that the order of the 6th July, 2011 is to continue; (d) an order of Her Honour Judge Leonie Reynolds of the 14th July, 2015 nominating solicitors to have joint carriage of the sale and making provision in relation to that sale; and (e) an order of Judge Reynolds providing that the order of the 14th July, 2015 is to be complied with, that the property be put up for sale immediately, and providing for the transfer to the wife of the potato crop currently in storage and the sale thereof by her as a form of interim lump sum maintenance payment. These orders would indicate a degree of difficulty in carrying out the sale of the family home and lands which was ordered as far back as the 10th July, 2008.

8 The applicant appealed the decree of judicial separation and ancillary orders to the High Court, but was unsuccessful. He has on several occasions attempted to bring judicial review proceedings before the High Court challenging the constitutionality of certain provisions of the Judicial Separation and Family Law Reform Act 1989 and the Family Law Act 1995. His applications for leave to bring such proceedings have repeatedly been refused (in addition to judgments cited at paragraph 6, see T.D. v. Judge Dearbhla Flanagan [2009] I.E.H.C. 487). Furthermore, on the 28th November, 2016, the applicant issued a notice of intention to proceed with plenary proceedings challenging the same legislative provisions; these proceedings had originally issued on the 12th January, 2010.

9 The within application arises out of his fourth attempt to attack the legislation and its implementation. This was prompted by an order of the Circuit Court made by Judge Sínead Ní Chúlacháin on the 25th July, 2016, so as to give effect to existing ancillary orders. The applicant sought judicial review of that order.

10 The leave application before Humphreys J. proceeded as a telescoped hearing. The learned judge delivered his judgment on the 19th December, 2016 ( [2016] I.E.H.C. 741). In sequential fashion he went through each of the twenty reliefs sought by the applicant, concluding in relation to each one that the applicant was not entitled the relief claimed; the reasons varied from ground to ground, but largely they were dismissed due to delay/being time barred, the lack of a stateable claim, procedural obfuscation, and abuse of process. Humphreys J. was of the view that insofar as the applicant was seeking to raise, against the order of Judge Ní Chúlacháin of the 25th July, 2016, points which more properly arose in relation to the underlying 2008 order, the litigation was effectively a re-opening of matters already decided and therefore was an abuse of process.

11 Overall, the learned judge concluded that the application was frivolous and vexatious and largely an attempt to pursue matters that are res judicata. Moreover, he noted that an appeal to the High Court was a more appropriate remedy than judicial review, and an appeal had in fact been lodged and had been unsuccessful. Thus the substantive relief sought by the applicant was...