High Court 

Brennan v Judge Smith and Others

1997/146 JR 

1 February 1999 

MORRIS J: 

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.