BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
High Court of Ireland Decisions |
||
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Brennan v. Smith [1999] IEHC 213 (1st February, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/213.html Cite as: [1999] IEHC 213 |
[New search] [Printable RTF version] [Help]
1. This
matter comes before the Court pursuant to an Order dated the 28 April 1997
whereby the Applicant (hereinafter called "Mr Brennan") was given leave to
apply by way of an application for Judicial Review for the following reliefs:
(I)
An Order of Certiorari quashing the Order of the Circuit Court made on the 8
March 1996 in proceedings purportedly commenced by Equities Civil Bill dated
the 18 February 1996 and entitled "John O'Flynn Plaintiff v Padraig Brennan and
Mary Brennan Defendants."
(II)
An Order of prohibition prohibiting the second Respondent from enforcing or
causing to have enforced the Order of the 8 March 1996 and from taking any
further steps in proported proceedings the subject matter of the Application.
The
ground upon which the relief was sought were as follows:
(I)
That the Honourable Circuit Court Judge of the Eastern Circuit, the first
Respondent herein, acted ultra vires and without jurisdiction in making the
Order of the 8 March 1996 in purported proceedings the subject matter of this
Application there being no validly issued equity civil bill in existence at the
date of the aforesaid Order or at all.
The
circumstances in which this Application arises may be summarised as follows: By
Order of the 15 June 1995 made in an action entitled John O'Flynn Plaintiff and
Mr Brennan and Mary Brennan Defendants, the Circuit Court ordered that the
Defendants surrender to the said John O'Flynn, the second named Respondent in
these proceedings, certain lands the subject matter of Folio 2330 and 8123 of
the Registrar of Freeholders County of Meath.
By
a further Order dated the 7 November 1995 the Circuit Court in affirming the
Order of the District Court ordered that the said John O'Flynn recover from the
said Mr Brennan and Mary Brennan possession of a dwelling house situate on the
lands 8123 but the Court granted a stay on the said Order until the 1 January
1996.
Mr
Brennan is one and the same as the Applicant in these proceedings.
Neither
Mr Brennan nor Mary Brennan surrendered possession of the lands or the house
the subject matter of the aforesaid Orders but continued to maintain a herd of
43 suckler heifers on the land and maintain farm machinery on the lands
comprising two trailers and one dung spreader.
John
O'Flynn made efforts to execute the Order. However was advised by the County
Registrar that vacant possession of the lands could not be handed over so long
as there were animals on the land that had not been TB tested since no movement
permit for the animals was available.
In
view of this problem John O'Flynn instituted further proceedings against Mr
Brennan and Mary Brennan seeking a number of reliefs including payment of the
money due to him for arrears of rent and damages for overholding. He sought
these reliefs in an Equity Civil Bill which was stamped on the 19 February 1996
but was not issued at that time. These proceedings stem from this fact. It is
Mr Brennan's submission that since the Civil Bill has not been issued in
accordance with the Circuit Court Rules, any Order made by the Court on foot of
it is a nullity.
On
the 20 February 1996 John O'Flynn applied ex-parte and obtained an interim
Order from the Circuit Court restraining Mr & Mrs Brennan from transferring
ownership in or disposing of or removing from the Jurisdiction the cattle and
goods referred to in the Civil Bill until further Order and fixed the return
date for the 5 March 1996 at Dundalk.
When
the matter was reached in the Dundalk List on the 8 March 1996 Mr Brennan and
Mary Brennan were represented by Solicitor and Counsel when Judge Smith made
the Order which is now being challenged.
By
this Order he granted an injunction restraining the Defendants from
transferring ownership in or disposing of or removal from the jurisdiction of
the Court the assets previously referred to namely the heifers and the farm
machinery and he made certain other consequential Orders. This is clearly an
Order intended to preserve the status quo and to ensure that the Defendants'
asset remained available to meet any claim the Plaintiff might establish and to
clear the lands so that possession could be handed over in accordance with the
terms of the previous Court Orders.
As
Mr Brennan and Mary Brennan had failed to comply with the terms of the Order
and an Ex Parte Application was made to the Circuit Judge sitting in Wicklow on
the 26 April 1996 seeking an Order for attachment and committal. The Order made
was returnable for Naas on the 3 May 1996. However, this motion was struck out
because the cattle were removed from the land notwithstanding the fact that
they did not have health status nor had they been tested as required by the
Court Order.
Moreover
the legal advisors for John O'Flynn became aware of the fact that the Civil
Bill had not been issued in accordance with the Circuit Court Rules. This fact
also came to the knowledge of Mr O'Sullivan, Solicitor for Mr Brennan and
application was made to the High Court for the relief now sought.
On
behalf of the Applicant the following submissions are made:
(I)
Order 10 of the Rules of the Circuit Court 1950 as amended by SI 155 of 1990
and SI 216 of 1995 provides:
(1)
"Every Civil Bill or other originating document shall before service, be
stamped and endorsed with the date and the amount paid therefore provided by
law and unless so stamped and endorsed shall have no effect or force.
(2)
Save as otherwise provided in these Rules every Civil Bill or other originating
document shall be issued out of the Office of the Court in a County having
Jurisdiction pursuant to these Rules and such Bill or other originating
document shall be dated with the date of issue, sealed and marked with a record
number by the proper officer and shall thereupon be deemed to be issued . . .
but no Civil Bill or other originating document shall be deemed to have been
issued in accordance with these Rules, unless dated, sealed, marked and issued
by the proper officer as aforesaid.
It
is submitted that while Rule 1 was complied with in that the Civil Bill was
stamped it had not been issued, sealed or marked with a record number by the
proper officer. It is in these circumstances submitted that it has not been
issued in accordance with the Rule and is therefore a nullity.
It
is submitted on behalf of the Applicant that while Order 59 Rule 13 of the
Circuit Rule provides that non compliance with any of these Rules or with any
practice for the time being in force in the Court shall not render the
proceedings void unless the Court shall so direct, such proceedings may be set
aside wholly or in part as irregular or may be amended or otherwise dealt with
in such manner or upon such terms as the Court shall think fit, this saving
Rule is not applicable to the present case because there is no "proceeding"
within the correct meaning of the term since the Civil Bill was bad from the
outset and that the Rule only applies to circumstances where a valid proceeding
exists commenced by a Civil Bill.
It
is submitted that Section 15 of the Courts (Supplemental Provisions Act 1961)
defines an "action" as "a civil proceeding in the Circuit Court commenced by a
Civil Bill" and since there was no valid Civil Bill in this matter there can
have been no action.
It
is next submitted that the decision of O'Hanlon J in Harrington v Keohane v
Judge Murphy 1989 1 IR 207 is authority for the proposition that "if it
proceeds to Judgment and it transpires that the matter was not within the
proper jurisdiction of the Circuit Court then the Court has made an Order
without having jurisdiction to do so and that Order should, in the normal
course of events, be set aside ex debitio justitiae on the application of
either party.
I
approach this case on the basis that the remedy of certiorari remains a
discretionary remedy. This is clear from the decision of O'Higgins CJ in State
(Abenglen Properties) v Corporation of Dublin 1984 1 IR 381 where at page 392
he says "Despite this development and extension, however, certiorari retains
its essential features. Its purpose is to supervise the exercise of
jurisdiction by such Bodies or Tribunals and to control any usurpation or
action in excess of jurisdiction. It is not available to correct errors or to
review decisions or to make the High Court a court of appeal from the decisions
complained of. In addition it remains a discretionary remedy."
Being
vested with this discretion, there are in my view a number of factors to which
I should have regard they are:-
(a)
The existence of an alternative remedy available to the Applicant.
In
the course of his Judgment at page 393 in Abenglen O'Higgins CJ said "The
question immediately arises as to the effect of the existence of a right of
appeal or an alternative remedy on the exercise of the courts discretion. It is
well established that the existence of such a right or remedy ought not to
prevent the Court from acting. It seems to me to be a question of Justice. The
Court ought to take into account all the circumstances of the case including
the purpose for which certiorari is sought, the adequacy of the alternative
remedy and of course the conduct of the Applicant.
Applying
that test the following appears to me to be the position:
The
Order made by the learned Circuit Judge amounted to no more than an interim
injunction restraining Mr Brennan and Mary Brennan from removing their assets
out of the jurisdiction and providing a machinery for the testing of cattle by
the provision of a "crush" facility and a direction that the Defendants test
the animals within 8 days. All of these Orders were made to aid the
implementation of previous Orders of the Court.
Quite
apart from any remedy which may be available to Mr Brennan by way of appeal
from that Order, it is and was at all stages open to him to return to the
Circuit Judge seeking to have the injunction removed. This relief is and was
available to him either by way of motion to re-enter or alternatively by
serving notice of trial for the hearing of the substantive action. This is by
no means a final Order. It takes the form, in my view, of merely a "holding"
Order to give effect to the Orders previously made putting John O'Flynn back
into possession of the lands to which the Court has found he is rightfully
entitled.
The
next matter which I believe the Court should consider in this context is the
conduct of Mr Brennan. This is one of the factors to which Chief Justice
O'Higgins draws attention in Abenglen Properties at page 393.
The
undisputed facts in this case are that by two Orders of the Circuit Court John
O'Flynn was found to be entitled to the lands and to the dwelling house on the
lands. No criticism is made of these Orders. These Orders have been ignored by
Mr Brennan. No steps were taken by him to comply with the Order. Moreover the
Order of the 8 March 1996, prior to Mr Brennan discovering the alleged defects
in the Order or the issue of the Civil Bill, was completely ignored.
Paragraph
3 of the Order provides for the testing of cattle on the lands. This was
ignored and not only that but the cattle were removed without testing. In my
view it would be improper for the Court to support by way of certiorari an
Applicant who has literally turned his back on the Courts up to the time when
he sought to seek advantage of the situation upon finding what he believes to
be a defect in the process adopted.
Next
in my view one should look at the potential benefit which will be available to
Mr Brennan by the making of this Order.
The
Order of the 8 March 1996 provided for an injunction restraining Mr Brennan and
Mary Brennan from transferring ownership in the cattle to third parties. The
position now is that the cattle have been removed from the lands and it is not
known where they are.
Paragraph
2 of the Order provides for the provision of crush facilities by the Plaintiff.
This
has been done by the Plaintiff and not by Mr Brennan.
Paragraph
3 provides for the testing of cattle by Mr Brennan. This was not carried out
nor is it now possible to do so as the cattle have been removed.
Paragraph
4 provides for an extension of time for the entry of an appearance and defence.
Paragraph
5 provides for liberty to re-enter and paragraph 6 reserves the costs.
The
question must therefore arise what benefit would accrue to Mr Brennan by the
making of the Order now sought. It has been submitted that he has suffered loss
in his farming activities by reason of the injunction and by having the Order
of the 8 March 1996 struck down the way would be clear for him to recover this
loss. However it emerges from the correspondence exhibited (letter of 27 March
1996 from North Connaught Farmers Co-Operative Society Limited) that the milk
quota which Mr Brennan held had been leased to another milk supplier and since
this quota attached to the lands which by order of the Court he is required to
yield up to Mr O'Flynn it is manifestly incorrect for him to say at paragraph 9
of his Affidavit of 23 April 1997 that "my occupation is that of a dairy farmer
and that my principle source of income was from the sale of milk from my own
closed herd of dairy cows and the sale of bull calves and culled calves and
that the terms of the Circuit Court Order of the 8 March had an immediate and
highly detrimental effect on my business." The Order of the Circuit Court which
had an effect on his business, if any, was the Order of the 15 June 1995
granting the owner of the lands possession of which no criticism is made.
I
am satisfied that the making of the Order in this matter would be of no benefit
or advantage to Mr Brennan.
Having
regard to these matters I am satisfied that (a) By reason of the fact that
there is an alternative remedy readily available to the Applicant to vary the
terms of an interim Order and (b) by reason of the fact that the Applicants
ignored all the Court proceedings to date by failing to comply with the Orders
made and (c) by reason of the fact that no benefit will inure to the Plaintiff
by the making of the Order I exercise my discretion in declining the relief
sought.