The State (Hughes) v O'Hanrahan
| Jurisdiction | Ireland |
| Judge | Henchy J.,McCarthy J. |
| Judgment Date | 01 January 1986 |
| Neutral Citation | 1985 WJSC-SC 2238 |
| Court | Supreme Court |
| Date | 01 January 1986 |
1985 WJSC-SC 2238
THE SUPREME COURT
Henchy J.
Hederman J.
McCarthy J.
Citations:
DPP, PEOPLE V O'SHEA 1983 ILRM 549 1982 IR 384
FITZSIMONS, STATE V KEARNEY 1981 IR 406
O'SULLIVAN, STATE V BUCKLEY 101 ILTR 152
RSC O.52 r2
Synopsis:
PRACTICE
Motion
Ex parte - Existing practice - Extension of time limit - Conditional order of certiorari - Extension of period for showing cause - Application for extension made within period - Motion on notice unnecessary - Order 52, r. 2, of Rules of the Superior Courts, 1962 - (278/84 - Supreme Court - 1/11/85).
|The State (Hughes) v. O'Hanrahan|
PRACTICE
Time Limit
Extension - Further extension - Ex parte applications - Extensions granted - Propriety - Conditional order of certiorari to quash order of Circuit Court affirming conviction by District Court - Respondent's applications for extensions of periods allowed for showing cause - Order 52, r.2, of Rules of Superior Courts, 1962 - Applications for extensions made respectively within original and further periods - Extensions validly granted - (278/84 - Supreme Court - 1/11/85).
|The State (Hughes) v. O'Hanrahan|
STATE SIDE
Certiorari
Time limit - Extension - Further extension - Period allowed for showing cause - Extensions validly granted on ex parte applications by respondent - Applications made respectively within original and further periods - (278/84) - Supreme Court - 1/11/85).
|The State (Hughes) v. O'Hanrahan|
Judgment of Henchy J.delivered the 1st November 1985 (HEDERMAN JCONCURRING)
The prosecutor in these certiorari proceedings got a conditional order quashing an order made by the respondent in the Dublin Circuit Court affirming a Road Traffic Act conviction of the respondent. That order was made on the 19 September and it provided that cause against making the order absolute had to be shown within twenty-one days of the service of the order. The order was served on the 28 Septemkter 1984.
On the 19 October 1984 (which was within the twenty-one day period) application was made ex parte on behalf of the respondent for an extension for fourteen days of the period fixed for showing cause. That application was granted.
As it was not found possible to have the necessary affidavitsfor the purpose of showing cause sworn within that extended period, an application was made ex parte to Costello J. on the 2 November 1985 (which was within the fourteen-days extension) for a further extension of time for showing cause. An affidavit was filed stating that the extension of time was necessary to enable affidavits in support of cause to be sworn and filed. Although the application was ex parte, counsel for the prosecutor was in court and sought to be heard in the matter. The judge, however, treating the matter as having been properly brought ex parte, refused to hear counsel for the prosecutor and made an order allowing a further period of ten days for showing cause. This appeal has been taken by the prosecutor against that order. His standing to take the appeal has not been questioned by the respondent, who is apparently willing to have the proceedings in the High Court treated as if they had been brought by motion on notice.
As far as I know, it has for long been the practice for the High Court to entertain an application ex parte, by a person served with a conditional order of this kind, for an extension of the time fixed for showing cause in the conditional order, provided the application is made within that time. I believe that practice was in existence before the coming into operation of the Rules of the Superior Courts in 1962. Those rules did not change theprocedure, for O. 52, r. 2. exempted from the requirement of a motion on notice all applications which "under the existinq practice are made ex parte." The Rules of Court, therefore, may not be invoked to invalidate the order under appeal for want of notice to theprosecutor.
I find nothing wrong in principle in making such an order ex parte. The order does not affect any matter in dispute between the parties. Nor, save in exceptional circumstances, can it prejudice the prosecutor. If the prosecutor finds that he is prejudiced by the extension of time, he may bring a notice of motion asking to have the extension set aside or modified. The Court, in exercise of its inherent jurisdiction to set aside or vary an interlocutory order made ex parte could make such order as it thought necessary to meet the justice of the case.
The prosecutor in the present proceedings did not apply on notice in the High Court to have the ex parte order extending time set aside. Instead he served a notice of appeal to this Court. That notice is dated the 6 November 1984. Now, almost a year...
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