Supreme Court dismisses appeal as it lacks jurisdiction over final, unappealable High Court orders.

THE SUPREME COURT

Record No: 118/2000

Murray, J.

McGuinness, J.

Geoghegan, J.

BETWEEN

P

Applicant/Respondent

AND

P

Respondent/Appellant

Judgment delivered the 31st day of July, 2001, by Murray, J.

This an appeal brought by the Appellant, who is the husband of the Respondent, against an Order of the High Court determining

an appeal from the Circuit Court in these proceedings.

Section 38 (1) of the Courts of Justice Act 1936 (re-enacted by the Courts Supplemental Provisions Act 1961) provides that an

appeal shall lie to the High Court sitting in Dublin or to the High Court on circuit from every judgment or order of the Circuit

Court in a civil action or matter.

Section 39 of the 1936 Act (also re-enacted by the 1961 Act) provides as follows: -

39.- “The decision of the High Court or of the High Court on Circuit on an appeal under this Part of this Act shall be final

and conclusive and not appealable”

Counsel for the Appellant acknowledged that this section would normally be a complete bar to this appeal but argues that

because the Appellant was effectively denied a hearing or denied a fair hearing in accordance with the law and the Constitution

in the High Court that this section did not apply. Accordingly the Supreme Court, independently of that section, had a special or

inherent jurisdiction to hear and determine this appeal. The arguments of the parties have been limited to question of the

jurisdiction of the Supreme Court to hear the appeal. I will refer to these arguments in more detail later, but first of all I will

outline the facts and circumstances leading up to the appeal.

The Respondent and Appellant are respectively wife and husband. As a result of a breakdown of their marriage and consequent

separation the Respondent initiated matrimonial proceedings in the Circuit Court which concerned matters relating to the

custody of the children, access to them, rights of residence in the family home and maintenance. These proceedings were

determined by Order of the Circuit Court made on the 18th March, 1999. The Appellant being dissatisfied with at least some

aspects of the Order of the Circuit Court appealed to the High Court sitting in Dublin.

As required by the 1936 Act, an appeal from the Circuit Court is by way of a rehearing of the action. The proceedings came on

for hearing before the High Court on the 7th February, 2000. On that occasion Counsel for both parties addressed the learned

High Court Judge outlining the facts, the areas of agreement between the parties, the matters in issue and the kind of Order

which could be made so as to resolve those issues. When the case resumed the following morning, and before any evidence

was tendered, the learned High Court Judge, having referred to the fact that Counsel on both sides had already given him “a

very concise review of the situation in this case,” went on to add “without making any final conclusions because I have not

heard the evidence, but from what little I have heard about this case it seems to me that this is the classic situation where

the family budget is too small.” The learned High Court judge then went on to review aspects of the case which had been

outlined to him and to indicate difficulties and possible solutions to the differences between the parties. It is not necessary, and

indeed it would be irrelevant, for the purposes of this judgment to recite in detail the observations of the learned High Court

judge. It is sufficient for present purposes to note that the learned High Court Judge made it clear that he did not consider

himself bound by these observations and it was accepted by Counsel for both the Appellant and the Respondent that the

judge’s observations were intended to help the parties to identify practical solutions to the issues between them having regard

to the circumstances of the case and the realities of the limited financial resources available to them.

It appears from the transcript of the proceedings before the High Court that the Appellant instructed his Counsel, Mr Hegarty

S.C. that he did not wish to proceed further with his appeal before the learned High Court Judge in the light of the preliminary

observations which he had made. His Counsel then submitted that in making these observations the learned trial judge had gone

so far as to demonstrate a pre judgment of the issue of maintenance before any witness had been called by the Appellant.

On this basis Counsel asked the learned trial judge to vary the Circuit Court Order and make a new Order concerning the

custody of the children of the marriage as agreed by the parties but to disqualify himself from hearing the case further as

regards the maintenance issue. The learned High Court Judge refused to disqualify himself because he considered the request

unfounded.

Following that refusal, the Appellant, through his Counsel, indicated that he would not continue with his case on the appeal

concerning maintenance.

As a consequence of the foregoing, and in the light of the refusal of the Appellant to continue further with his appeal or to call

evidence, the learned High Court judge varied, by consent, the Order of the Circuit Court concerning custody and then affirmed

the Order of the Circuit Court as regards maintenance.

This Appeal:

In this Appeal it was contended on behalf of counsel for the Appellant that in expressing certain views before hearing the

evidence, the learned High Court judge’s comments were in effect a predetermination or pre-judgement of the issues or at least

gave rise to a reasonable apprehension of such pre-judgement on the part of the Appellant so as to amount to pre-judgment or

objective bias as defined by Finlay, C.J. in O’Neill -v- Beumont Hospital 1990 I.L.R.M. 419 and Denham, J. In Bula Ltd and Ors -v-

Tara Mines Ltd and Ors (unreported, 3rd July, 2000). He did not seek a determination from the Supreme Court of the

substantive issue before the High Court but that the Order of the High Court could not be allowed to stand. It should be set-

aside and a rehearing ordered.

He submitted that the only remedy available to the Appellant was by way of appeal to the Supreme Court. Article 34.4.3. of the

Constitution conferred on the Supreme Court appellate jurisdiction from all decisions of the High Court subject to such

exceptions provided by law. The exception to the Court’s appellate jurisdiction created by section 39 of the Courts of Justice

Act, 1936 in respect of decisions of the High Court on Circuit appeals should be interpreted as being inapplicable to this case in

order to ensure that the Appellant had a remedy. In the Bula case, (cited above), the Supreme Court, in the exercise of an

inherent jurisdiction, heard and determined an application to set aside an otherwise final determination by the Supreme Court in

the same proceedings on the grounds of alleged objective bias on the part of members of the Court who had heard those

proceedings.

Similarly in this matter the Court should exercise an inherent jurisdiction to review the conduct of the hearing in the High Court.

It was also submitted that the decision of the High Court on the Circuit appeal was not a decision within the meaning of Section

39 of the 1936 Act because, having been determined in the absence of any evidence there was no rehearing of the appeal as

required by the Act. Alternatively, this appeal should be treated as an appeal from the refusal of the learned trial judge to

discharge himself. That decision was not germane to the appeal before the High Court. The hearing of an appeal from the Circuit

Court by the High Court was a jurisdiction conferred by statute to determine the issues arising in that appeal. In refusing to

discharge himself the learned trial judge was not determining an issue within the framework of that appeal. Accordingly it should

be treated as a distinct and separate ruling that was subject to appeal and not prohibited by Section 39 of the Act.

Counsel for the Respondent relied on Section 39 as prohibiting any form of appeal from the Order of the learned High Court

judge. His decision being “final and conclusive and not appealable” under the section. Counsel also relied on the decision of this

Court in Eamonn Andrews Productions Ltd -v- Gaiety Theatre Enterprises Ltd 1973 IR 295 where it was held that a decision of

the High Court which determines an appeal from the Circuit Court under part IV of the Courts of Justice Act, 1936 cannot be

the subject of an appeal to the Supreme Court since the provision of Section 39 of the Act of 1936 were re-enacted by Section

48 of the Courts (Supplemental Provisions) Act, 1961 after the Constitution of Ireland came into force. Any rulings of the

learned trial judge in the High Court were in the course of hearing the appeal and neither such rulings nor his Order determining

the appeal can be appealed to this court. It was submitted that the Order of the learned High Court judge was an Order

determining the Circuit appeal in accordance with the provisions of 1936 Act. There was a rehearing within the meaning of that

Act. The case was opened on the 7th February and when, the following day the Appellant declined to tender evidence, the High

Court properly decided the Circuit appeal within the meaning of Section 39.

Conclusions:

First of all let me recall that, by consent of the parties, the only issue to be addressed in this judgment is the status of the

appeal brought by the Appellant namely whether he is entitled to appeal this matter to this Court on any ground.

Section 39 - Courts of Justice Act 1936:

The terms of this section are comprehensive and definite. A decision of the High Court on an appeal from the Circuit Court “shall

be final and conclusive and not appealable.” This Section was re-enacted by Section 48 (1) and (3) of the Courts

(Supplemental Provisions) Act 1961. The effect of its re-enactment means that “decisions of the High Court (or of the High

Court on Circuit) on appeal from the Circuit Court are now validly excluded from the appellate jurisdiction of this Court” (per

Henchy, J. Andrews Productions -v- Gaiety Theatre [1973] I.R. 295 at 304). In that case it was held that the section creates a

valid and effective exception to the appellate jurisdiction of this Court from decisions of the High Court as envisaged in Article

34.4.3. of the Constitution.

The effect of Section 39 was not contested, and properly so, by Counsel for the Appellant. Faced with this apparently

insurmountable obstacle Counsel submitted, inter alia, that the proceedings before the learned High Court judge did not

constitute the hearing of an appeal from the Circuit Court within the meaning of Section 38 of the 1936 Act. Section 38 (2)

requires that every appeal from the Circuit Court shall be heard by way of rehearing and he contends that there was no

rehearing since no evidence was called on the appeal in the High Court. Accordingly Section 39 did not apply. It seems to me

that this argument cannot succeed. Firstly, the appeal taken by the Appellant from the Circuit Court to the High Court came on

for hearing before the learned High Court Judge and was opened by Counsel for the Appellant who outlined the various facts

and circumstances of the case. The High Court having embarked upon the appeal it was indicated to the learned High Court

judge that since the parties had reached mutual agreement on matters concerning custody that the High Court should vary the

Order of the Circuit Court in that regard. The jurisdiction of the High Court to embark on a hearing of this matter in the first

place and make the Order sought, and in particular the variation of the Circuit Court Order on custody agreed to, by the

Appellant derives only from Section 38 of the 1936 Act as re-enacted. It can only be brought before the Court by way of

appeal from the Circuit Court. All the issues were open for decision by the learned High Court Judge and the fact that the party

appealing decided not to call evidence on the one issue which remained in contention, for whatever reason, does not deprive

the hearing before the High Court of its character as an appeal from the Circuit Court. That is what the High Court reheard and

determined.

As an alternative argument Counsel submitted that the refusal of the learned High Court Judge to accede to the application

that he should discharge himself from the case was a distinct decision which was not germane to the appeal before him and

which therefore was not governed by the provisions of Section 39 of the 1936 Act. Therefore, the decision of the learned High

Court judge not to discharge himself was appealable.

In the course of any judicial hearing before the Courts, in this instance an appeal from the Circuit Court to the High Court, the

presiding judge will have occasion to rule on legal and procedural issues arising in the course of that hearing even though such

issues may not be those which are the substantive ones in respect of which the parties seek relief from the Court. An example

among many of such issues is the admissibility or inadmissibility of evidence or rarely, as in this case, that the presiding Judge

should for some reason, disqualify himself from continuing with the hearing. Such matters arise within and in the course of a

hearing. That such issues should so arise is inherent in the judicial process. I do not think it is open to parties to cherry-pick

this or that ruling made by the presiding judge in the course of a hearing and say that it is not part of, or germane to, the

hearing.

It is manifestly clear from the terms of Section 39 of the 1936 Act as re-enacted by the 1961 Act that the Oireachtas intended

the High Court to be the Court of final instance in the hearing of appeals from the Circuit Court. That provision is a recognition

of the desire of public policy to determine the point in which proceedings inter partes should be considered final.

As Hamilton, C.J. observed In re Greendale Developments Ltd (in liquidation) Ltd (No. 3) [2000] 2 I.R. 514 “... the finality of

proceedings both at the level of trial and possibly more particularly at the level of ultimate appeal is of fundamental

importance to the certainty of the administration of law, and should not lightly be breached.”

Once the High Court has embarked on the hearing of an appeal from the Circuit Court it is acting exclusively within its appellate

jurisdiction pursuant to Section 38 of the 1936 Act and all decisions in and in the course of that hearing are governed by

Section 39.

It seems to me that to allow a party to a Circuit appeal before the High Court to appeal to this Court a ruling of the presiding

Judge made in the course of hearing the appeal would be inconsistent with and thwart the clear intention of the legislature as

expressed in the statute.

I would perhaps add that if some form of application concerning a Circuit Court appeal was made to the High Court prior to and

distinct from the hearing of the appeal itself, particularly if it was made to the High Court exercising its original jurisdiction

pursuant to Article 34.3, other considerations would arise concerning an appeal from a decision on such an application but this

is far from the situation here.

Finally, it was argued on behalf of the Appellant that he was denied a hearing in accordance with the principles of constitutional

justice and in particular there was objective bias on the part of the learned trial judge arising from the views he expressed in his

preliminary observations. It was contended that this Court had an inherent jurisdiction to afford a remedy to the Appellant in

such a case. If he could not appeal the decision of the High Court in such circumstances he had no remedy unless this Court

exercised such an inherent jurisdiction.

In summary, Mr Hegarty S.C. submitted that even in proceedings which have been finally determined by a Court from which

there is no right of appeal this Court has an inherent jurisdiction to set aside such a final order where there has been a

fundamental breach of a constitutional right to a fair and proper hearing. For this submission he relied, inter alia, on In Re

Greendale Developments Ltd (No. 3) [2000] 2 I.R. 514 Rooney -v- Minister for Agriculture and Food (unreported, Supreme

Court 23rd October 2000) and Bula Ltd -v- Tara Mines (unreported, Supreme Court 3rd July, 2000).

A Final Order at Common Law:

The jurisdiction of a Court at common law to set aside or amend a final order was considered by this Court in Belville Holdings

Ltd (in Receivership and in liquidation) -v- Revenue Commissioners and Anor [1994] 1 I.L.R.M. 29. The substance and effect of

the judgement of Finlay, C.J. in that case was conveniently and succinctly summarised by Hamilton C.J., in In Re Greendale

Developments Ltd (No3) at 527, as follows “... it set out in detail the common law principle concerning [this] question holding

that where a final order has been made and perfected it can only be interfered with:-

(1) In special or unusual circumstances, or

(2) Where there has been an accidental slip in the judgment as drawn up, or

(3) Where the Court itself finds that a judgment as drawn up does not correctly state what the Court actually decided

and intended.”

Later in his judgement, Hamilton, C.J. went on to state “public policy requires a definite and decisive end to litigation.

In spite of the importance of such a principle, it was accepted at common law that an action may be brought to set

aside a judgment or order made by the Court which had been obtained by fraud”. He then cited Barrington, J. in William

Waite and Seamus Waite -v- House of Spring Gardens Ltd and Ors (The High Court, unreported, 26th June, 1985) who

stated (inter alia) “There is no doubt that an action may be brought to set aside a judgment obtained by fraud and that

no leave is required of the Court prior to the institution of such proceedings.”

Commenting on the judgment of Barrington J. in that case Hamilton C.J. observed “There is no suggestion in the above passage

from the judgment of Barrington, J. or the extracts from the judgments therein referred to that the judgment so obtained

could be set aside other than in separate proceedings. They are not authority for the proposition that the Court can set aside

its own decision”.

Accordingly at common law the grounds upon which a final order may be impugned is limited in the first instance to correcting,

so to speak, the final judgment to ensure that it accurately reflected the adjudication and intention of the Court which made it

and, in the exercise of a wider and more fundamental jurisdiction to setting aside an order on the grounds that it had been

obtained by fraud. Even the setting aside of a final order on the grounds of fraud is not a true exception to the principle of

finality as Murphy, J. stated in Tassan Din -v- Banco Ambrosiano S.P.A. [1991] I.R. 569 at 580. With reference to Article 34.4.6

of the Constitution which provides that “The decision of the Supreme Court shall in all cases be final and conclusive” Murphy J.

stated “The acceptance by Barrington J. in Waite -v- House of Spring Gardens Ltd that a decision of the Supreme Court can be

set aside for fraud ... does not truly represent an exception to this constitutional provision. An order obtained by fraud is a

mere nullity.”

Constitutional considerations:

However, the position may be otherwise when a final order is challenged on the grounds that the judicial proceedings in

question were gravely flawed by reason of a fundamental breach of fair procedures and justice guaranteed by the Constitution.

This question was expressly addressed by this Court in the judgments of Denham, J. and Barron, J. in the Greendale case with

whom both Barrington, J. and Lynch, J. agreed.

In that case Denham, J. (at page 542) held that “The Supreme Court has jurisdiction and a duty to protect constitutional

rights. This jurisdiction may arise even if there has been what appears to have been a final Order. However, it would only arise

in exceptional circumstances. The burden on the Applicants to establish that exceptional circumstances exist is heavy.”

Later in her judgement she concluded “It would only be in most exceptional circumstances that the Supreme Court would

consider whether a final judgment or Order should be rescinded or varied. Such a jurisdiction is dictated by the necessity of

justice. A case will only be reopened where, through no fault of the party, he or she has been subject to a breach of

constitutional rights.”

Barron, J. in the same case held (at 545) that there may be circumstances which might exclude the application of Article 34.4.6

concerning the finality of decisions of the Supreme Court. He then added:

“Nevertheless, where such circumstances exist, this Court must be free to so declare and to indicate the procedures whereby

such circumstances should be investigated. Not to be able to do so would conflict with the guarantee of fair procedures

enshrined in the Constitution.

The Constitution requires the decisions of this Court to be final and conclusive for good reason. There must be certainty in the

administration of justice. Uncertainty can lead to injustice. In my view, these provisions must prevail unless there has been a

clear breach of the principles of natural justice to which the Applicant has not acquiesced and such that a failure to take steps

to remedy such breach would, in the eyes of right minded citizens damage the authority of this Court. I believe that the

jurisprudence of this Court has always been to this effect.”

In the Bula case McGuinness, J. expressing here agreement with those judgments stated “In summary, whilst very great weight

must be given to the principle of finality and to the provisions of Article 34.4.6., this court has a jurisdiction to review and if

necessary to set aside what appears to have been a final order in circumstances where the Court’s duty to protect

constitutional rights or natural justice arises. Such circumstances can only be to a high degree exceptional, and a very heavy

onus lies on the Applicants to establish that such exceptional circumstances exist.”

The judgments of this Court in Greendale and Bula establish that a final order may be rescinded or varied where a party

discharges the burden of establishing that there are exceptional circumstances showing that such a remedy is necessitated by

the interests of constitutional justice. If such a remedy is available in respect of final orders of the Supreme Court it must be

available for final and unappealable orders of the High Court.

It follows from the foregoing judgments that the Courts have an inherent jurisdiction to amend or set aside a final order in

exceptional circumstances where those circumstances clearly establish that there has been a fundamental denial of justice

through no fault of the parties concerned and where no other remedy, such as an appeal, is available to those parties. Since

the Court is not in this case concerned with the merits of the contention made on behalf of the Appellant that there was such a

denial of justice in this case, I do not propose to consider further the criteria according to which such a jurisdiction may be

involved. I would, however, just add that such exceptional circumstances could not include rulings made in final instance by a

court concerning such matters as the admissibility in evidence even if they have implications for the manner in which a party

was allowed to present its case. Rulings on questions of law and procedure are a matter for judicial appreciation and discretion

which are inherent in judicial proceedings and are properly governed by the principle of finality in courts of last instance.

Otherwise, I confine myself to saying that the exceptional circumstances which could give rise to the inherent jurisdiction of the

court must constitute something extraneous going to the very root of the fair and constitutional administration of justice. In

order to emphasise that the remedy is confined to such matters it may be appropriate to recall the observations of Lord Simon

in The Ampthill Peerage [1977] AC 547 cited with approval by Murphy, J. in Tasson Din -v- Banco Ambrosiano (cited above)

“And once the final appellate court has pronounced its judgment the parties and those who claim through them are

concluded; and, if the judgment is as to the status of a person, it is called a judgment in rem and everyone must accept

it. A line can thus be drawn closing the account between the contestants. Important though the issues may be, how

extensive soever the evidence, whatever the eagerness for further fray, society says: ‘We have provided courts in

which your rival contentions have been heard. We have provided a code of law by which they have been adjudged. Since

judges and juries are fallible human beings, we have provided appellate courts which do their own fallible best to correct

error. But in the end you must accept what has been decided. Enough is enough’.”

The question still remains whether this Court has an inherent jurisdiction to address such an issue in this appeal from the High

Court. Although in the Greendale case, as well as in Rooney -v- The Minister for Agriculture and Food and Ors (The Supreme

Court, unreported, 23rd October, 2000) and Bula -v- Tara Mines and Ors this Court did review final judgments which were

impugned (in each case unsuccessfully) on the alleged grounds of want of a fair and proper hearing, they all concerned a final

order of this Court. Having regard to the provisions of Article 34.4.6. - “The decision of the Supreme Court shall in all cases be

final and conclusive” it seems to me inconceivable that any Court other than the Supreme Court could have jurisdiction to

amend or vary its own decisions on the grounds of a breach of constitutional justice alleged to have occurred in the course of a

hearing before it.

The situation regarding a final and an unappealable order of the High Court gives rise to very different considerations. The

Supreme Court is not a court of first instance and does not (save for limited exceptions) exercise original jurisdiction. The High

Court is a Court of first instance with original jurisdiction.

In Attorney General -v- Open Door Counselling (No. 2) [1994] 2 I.R. 333 at 341, Finlay, C.J. set out with great clarity the kind

of jurisdiction which the Supreme Court enjoys, in the following terms:

“I am quite satisfied that under the terms of Article 34 of the Constitution, this Court is a Court of appeal only and has

not got any original jurisdiction of any kind, other than the following:-

(a) Jurisdiction to render to the President, pursuant to Article 26 of the Constitution, a decision on the question as

to whether a Bill passed, or deemed to have been passed, by both houses of the Oireachtas or any specified

provision or provisions of such Bill is or are repugnant to the Constitution or any provision thereof.

(b) The function pursuant to Article 12, s.3 of the Constitution to enquire into the question as to whether it has

been established to its satisfaction that the President has become permanently incapacitated.

(c) The determination of a question of law stated for the Court

(i) by a judge of the High Court hearing an appeal pursuant to Section 38 of the Courts of Justice Act, 1936;

(ii) by a judge of the Circuit Court pursuant to Section 16 of the Courts of Justice Act 1947”

This appeal is grounded on an allegation of prejudgment or objective bias on the part of the trial judge. Whether this submission

is well founded or not is a matter for distinct and separate adjudication. When the issue concerns a final and unappealable order

of the High Court it would have to be raised by way of a distinct and substantive application to have the order set aside. If this

Court were to be the first judicial forum before which such an application was considered it would be exercising an original

jurisdiction. In my view this Court does not possess such an original jurisdiction.

While the judgments of this court in the Greendale case specifically recognise, in the light of Article 34.4.6l, the inherent

jurisdiction of this Court to afford a remedy in respect of its own orders to which the exceptional circumstances referred to

apply, I think it must follow that there is an inherent jurisdiction in the High Court to provide a similar remedy at first instance in

the same circumstances in respect of a final and unappealable order of the High Court. Of course these considerations do not

apply to decisions of the High Court which are subject to appeal in the ordinary way. There, appeal is the remedy. Nor do the

same considerations apply to decisions of the District Court or the Circuit Court where there is a right of appeal and which in

any case are subject to judicial review by the High Court.

As Barron, J. stated in the extract from his judgment in Greendale, cited above, where such exceptional circumstances exist in

which a party is allowed to seek to impugn a final order “This Court must be free to so declare and to indicate the procedures

whereby such circumstances should be investigated” That statement of course was made in respect of a case where the

judgment in issue is a judgment of this court.

As regards these proceedings, it seems to me that for the Appellant to seek the kind of remedy which he has sought by way of

appeal to this Court, he must do so by way of a substantive proceedings before the High Court in first instance. By analogy

with the procedure at common law for the setting aside of proceedings on the ground of fraud the appropriate procedure may

perhaps be a separate action to set aside the proceedings. However, it must be for the High Court itself to indicate the

procedures whereby this remedy may be sought and the matter should be fully argued before that Court.

By way of addendum I would note that during the High Court appeal the learned High Court judge noted that it was open to the

Appellant to go back to the Circuit Judge for a variation of the original Circuit Court order in the light of changed circumstances

since the Circuit Court proceedings and Counsel for the Respondent appears to have acquiesced in that view. I express no view

on the rights of the Appellant in that regard except to say that if that were the case he would obtain a hearing de novo on the

merits of maintenance issue which is in effect the remedy which he is seeking in this appeal. If that were objectively the case it

seems to me that that would be a relevant consideration on whether the setting aside of a final order is, as Denham J. put it

“dictated by the necessity of justice.”

For the reasons stated above I would dismiss the Appellants appeal on the grounds that this Court has no jurisdiction to

entertain it.