Tolan v Aurivo Co-Operative Society Ltd

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Denham C.J.,Charleton J.,O'Malley J.
• Judgment Date: 28 July 2016
• Neutral Citation: [2016] IESCDET 107
• Date: 28 July 2016

[2016] IESCDET 107

THE SUPREME COURT

DETERMINATION

Denham C.J.

Charleton J.

O'Malley J.

BETWEEN

FINBAR TOLAN

APPLICANT

AND

AURIVO CO-OPERATIVE SOCIETY LIMITED

RESPONDENT

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES.

RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1 The applicant seeks leave to appeal the entire judgment of the Court of Appeal delivered on the 5th May, 2016, (Peart J., Irvine J. and Hogan J.) ( Tolan v. Connacht Gold Co-Operative Society Limited [2016] IECA 131) and order dated the 27th May, 2016.

Jurisdiction

2 The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution.

3 Article 34 of the Constitution provides for the public administration of justice; describes the courts established by the Constitution, and those which may be established by law; provides for the full and original jurisdiction of the High Court; establishes the Court of Appeal under Article 34.2; and sets out its appellate jurisdiction under Article 34.4.1°. This states:

‘1° The Court of Appeal shall –

(i) Save as otherwise provided by this Article,

(ii) With such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and also shall have appellate jurisdiction from such decisions of other courts as may be prescribed by law.’

4 Article 34.4.3° of the Constitution also provides for the finality of decisions of the Court of Appeal, save for appeals that may be taken to the Supreme Court from its decisions under Article 34.5.3°.

5 Under Article 34.5.4° it is possible for a decision of the High Court to be directly appealed to the Supreme Court, bypassing the Court of Appeal. This type of appeal is sometimes referred to colloquially as a ‘ leap-frog’ appeal.

6 The Article relevant to this appeal, where the Court of Appeal has already given judgment in a matter, is Article 34.5.3°, which states:

‘The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that -

(i) the decision involves a matter of general public importance, or

(ii) in the interests of justice it is necessary that there be an appeal to the Supreme Court.’

7 The decision of the Supreme Court under Article 34.5.6 is, in all cases, ‘ final and conclusive’.

8 Primarily, this Court is now ‘ subject to such regulations as may be prescribed by law’, an appellate jurisdiction from the Court of Appeal. Such an appeal may only be exercised provided that this Court is satisfied, either that the relevant decision of the Court of Appeal ‘ involves a matter of general public importance’, or, alternatively, that it is ‘in the interests of justice’, necessary that there be an appeal to this Court. The constitutional framework established by the 33rd Amendment of the Constitution thus requires, in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal, that it be demonstrated that either ‘ a matter of general public importance’ arises, or that, ‘ in the interests of justice, it is necessary that there be an appeal’ to this Court.

9 The statutory framework for the exercise of the right to appeal to this Court for such leave is to be found in the Court of Appeal Act, 2014, and, in particular, the provisions of s.44 of that Act, which inserts a new s.7 into the Courts (Supplemental Provisions) Act, 1961.

10 The Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.

11 The Constitution has retained the entitlement of one appeal as a right from the High Court, subject to express exclusions or regulation by statute from the High Court to the Court of Appeal. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined principally to cases where, as a result of the determination of the Court of Appeal, the decision of that court is such that the issues raised on a proposed appeal would involve a matter of general public importance, or would be such that it is in the interests of justice that there be a further appeal to this Court.

The proceedings to date

12 The applicant is a cattle dealer who traded...