Walshe v Ireland and ors
| Jurisdiction | Ireland |
| Judge | Denham C.J.,Charleton J.,O'Malley J. |
| Judgment Date | 05 May 2016 |
| Neutral Citation | [2016] IESCDET 59 |
| Judgment citation (vLex) | [2016] 5 JIC 0505 |
| Court | Supreme Court |
| Date | 05 May 2016 |
[2016] IESCDET 59
THE SUPREME COURT
DETERMINATION
Denham C.J.
Charleton J.
O'Malley J.
AND
Leave is sought here to appeal directly to this Court on an interim application for leave to commence judicial review. This determination relates to an application brought by Gerry Walshe in person, he already having brought a prior application in proceedings that are indistinguishable as to the relief sought and the subject matter thereof, proceedings on which this Court has already issued a determination; [2015] IESCDET 37. There, the applicant sought to challenge the implementation of the marriage equality referendum on grounds of non-compliance with the Referendum Act. Here, the same point is raised not as leave to issue a referendum petition, as apparently in those proceedings, but to judicially review the returning officer. The relevant law as to a challenge to a referendum result has been re-stated by this Court in McCrystal v. Minister for Children and Youth Affairs [2012] IESC 53 and Jordan v. Minister for Children and Youth Affairs [2015] IESC 33. As to why a judicial review of a decision related to a referendum should be adjudicated differently is not set out in the application. Of course, that point is not decided herein. During the course of the prior application, the relevant paperwork was completed and the referendum was passed into law. A brief chronology thus suffices:
(i) The decision of the High Court was handed down on the 5th June, 2015.
(ii) The decision of the Court of Appeal was handed down on the 30th July, 2015. In that judgment the President lifted the stay that had been imposed by the Court of Appeal on the Certificate of the Referendum result.
(iii) The order of the Court of Appeal was perfected on the 31st July, 2015.
(iv) There was no application for a stay in the Court of Appeal by the applicant pending an appeal to the Supreme Court.
(v) Under the rules of the Superior Courts the applicant had 28 days to file his application for leave to appeal in the office of the Supreme Court; see O. 58, r. 16(1).
(vi) The applicant filed his application for leave to appeal in the Office of the Supreme Court on the 27th August, 2015, and served it on the respondents on the 27th August, 2015.
(vii) The respondents filed their response on the 2nd September, 2015.
(viii) However, the Master of the High Court issued written notification to the Referendum Returning Officer pursuant to s. 41 of the Referendum Act 1994, as amended.
(ix) The Referendum Returning officer received written notification from the Master of the High Court on Monday, 24th August, 2015, that no leave was granted by the High Court to present a referendum petition in respect of the Referendum on the Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015.
(x) On the 28th August, 2015, the Referendum Returning Officer endorsed on the certificate that it had become final.
(xi) On the 29th August, 2015, the Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill, 2015 was signed by the President of Ireland.
(xii) On the 1st September, 2015, the official Notice of Promulgation was given in Iris Oifigiúil.
While determinations on applications for leave to appeal will very rarely be of precedential value, they can be relevant where an applicant who has previously been refused leave seeks to litigate the same point under a different legal guise. The starting point for a consideration of this form of appeal, one directly from the High Court to the Supreme Court, is to consider the wording of the relevant provisions of the Constitution itself. Article 34.5.3 provides as follows:
The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decision of the...
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