Tracey -v- O'Donnell J & anor, [2017] IESC 7 (2017)

Docket Number:135/16
Party Name:Tracey, O'Donnell J & anor

THE SUPREME COURT[Appeal No: 135/16]

Denham C.J.

Clarke J.

MacMenamin J.


Kevin TraceyApplicant/Appellantand

District Court Judge Aeneas McCarthyRespondentand

The Director of Public ProsecutionsNotice Party

Judgment of Mr. Justice Clarke delivered the 10th February, 2017.

  1. Introduction

    1.1 This judgment relates to a most unusual application but the circumstances giving rise to that application are themselves exceptional. The plaintiff/appellant (“Mr. Tracey”) seeks an order extending time to appeal from a judgment of the High Court (McGovern J.) given on the 6th March, 2008 where that court declined to quash a finding of the respondent District Court Judge as a result of which Mr. Tracey was committed for contempt. The application for an extension of time was filed in late November, 2016 and was heard in January of this year so that it is, in substance, sought to extend time by close to nine years. On any view such a lengthy extension of time could only be allowed in extremely rare circumstances.

    1.2 On the other hand, it will be necessary to address, at least in general terms, the undoubtedly unfortunate circumstances which led both to an appeal not being brought at the time of the High Court order and to no application for an extension of time being brought until now. However, before going on to consider the merits of the application itself, it is necessary for the Court to consider an important but difficult constitutional issue which derives from the fact that the application now before the Court obviously post dates the 33rd Amendment to the Constitution while the order sought to be appealed was made at a time prior to that amendment coming into force. The issue which may arise is as to whether it is appropriate to assess this extension of time application under the constitutional regime which has come into being as a result of the 33rd Amendment. I turn, therefore, first to that question.

  2. The Effect of the 33rd Amendment

    2.1 Certain aspects of the constitutional regime can be clearly and simply stated. First, as of the time when the order sought to be appealed was made, the constitutional architecture provided for an appeal in a case such as this as of right and to this Court. It is equally clear that, were a similar order to be made by the High Court today, the natural and ordinary right of appeal, again as of right, would lie to the Court of Appeal subject to the entitlement to seek leave to bring a so-called leapfrog appeal to this Court under Art. 34.5.4 of the Constitution.

    2.2 Of course, in order that a leapfrog appeal can be permitted, it is first necessary that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interests of justice necessary that there be an appeal to this Court. In addition, for a leapfrog appeal, it must also be established that there are grounds justifying an appeal directly to this Court. In that latter context it must be shown that there are “exceptional circumstances” warranting such a direct appeal. The fact that there has been such a radical change in the constitutional architecture concerning appeals leads to an issue in relation to new applications to extend time for appeals where the order sought to be appealed was made prior to the 33rd Amendment coming into force. On one view any application which would permit an appeal to this Court to be filed after the 33rd Amendment had come into force (including, as here, a required application for an extension of time) carries with it an obligation to satisfy this Court that the constitutional threshold for leave to appeal under the 33rd Amendment has been met. On that view it would always be open to a party in such a case to seek an extension of time to appeal to the Court of Appeal but an entitlement to seek an extension of time which would allow an appeal to be brought to this Court after the 33rd Amendment had come into effect would carry with it an obligation to show that the criteria for leave to appeal which now apply are present in the case in question.

    2.3 The alternative view is that, given that Mr. Tracey would have had an entitlement to appeal as of right to this Court as of the time when the order sought to be appealed was made, he has an entitlement to seek an extension of time in the same manner as would have applied at that time which would not, of course, have required meeting a constitutional threshold which had not come into force at the time in question. That raises an important question concerning the extent to which it might be said that the 33rd Amendment operates, at least to some extent, retrospectively. That issue was briefly touched on in a determination made by this Court in Kennedy v. Cunningham & anor [2017] IESCDET 4. However, for the reasons set out in that determination, the Court did not find it necessary, on the facts of that case, to reach a definitive conclusion on the issue. The approach of the Court in Kennedy was that it did not consider it appropriate to address that issue (not least because Mr. Kennedy was unrepresented) unless a decision on that question proved necessary to decide Mr. Kennedy’s application in that case. I would propose that this Court should, on this application, adopt a similar course of action. In other words if it did not matter, for the proper resolution of this application, whether the case was to be considered under the previous constitutional regime or under the appellate architecture in place since the 33rd Amendment, then the issue which I have raised would not need to be resolved in this case and, given that Mr. Tracey is, like Mr. Kennedy, unrepresented, it would not be appropriate to deal with it in these proceedings.

    2.4 For those reasons I propose, for the moment, to operate on the assumption...

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