Supreme Court dismisses husband's application to enlarge time for appeal due to lack of jurisdiction over final High Court decision.

THE SUPREME COURT

65/02

Murphy J

Hardiman J

Geoghegan J

IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996

Between:

N. B.

Respondent/Applicant

AND

M. B.

Applicant/Respondent

Judgment of Mr Justice Francis D Murphy delivered the 26th day of April, 2002

This is an application by the above named MB (to whom I shall refer as the “husband”) to enlarge the time for appealing the

judgment and order given and made herein by Mr Justice O’Caoimh at Tralee on the 21st day of July, 2000. The order aforesaid

was made by the High Court on an appeal from the judgment and order dated the 9th day of March, 2000, given and made by

the Circuit Court Judge of the Circuit Court in the County of Kerry.

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 above named NB (to whom I shall refer as “the wife”) contends that the statutory provision aforesaid provides

an absolute bar to any appeal to this Court from the decision given by Mr Justice O’Caoimh on the appeal to him from the Circuit

Court. Accordingly, it is argued, that this Court having no jurisdiction to hear the appeal, has no power to grant an enlargement

of time for serving a notice in that behalf.

The husband was not legally represented before this Court. Understandably he was not familiar with the statutory provisions

referred to above. Less still would he be expected to know of the decisions of this Court in Eamon Andrews Productions Ltd .v.

Gaiety Theatre Enterprises Ltd [1973] IR 295; Kinahan .v. Baila (Unreported, Supreme Court, 18th July, 1985); WJ Prendergast

& Son Ltd .v. Carlow County Council [1990] 2 IR 482; Keegan .v. Skelly (Unreported, Supreme Court, 7th June, 1991) and P .v.

P (Unreported, Supreme Court, 31st July, 2001) which, among others, confirm that the decision of the High Court hearing an

appeal from the Circuit Court in a civil matter is final and conclusive and no appeal lies from it to this Court.

In his draft notice of appeal and in his argument to this Court the husband complained in general terms of the grave injustice

which, as he saw it, had been inflicted upon him in these and related proceedings. More specifically, the husband argued that

the right of the wife in respect of property of the husband was the subject matter of proceedings entitled (among other things)

“1981 Number 796Sp Ct 5 and In the Matter of the Guardianship of Infants Act 1964......In the Matter of the Married Woman

Status Act 1957 and In the Matter of the Family Home (Maintenance of Spouses and Children) Act 1976 and In the Matter of

the Family Home Protection Act, 1976”. By virtue of a series of orders made in those proceedings on the 27th day of April 1982,

the 20th of November 1981 and, most particularly by the order of the then President of the High Court on the 7th of June 1985

(whereby he refused to appoint a receiver over certain properties of the husband), the husband contends that the property

rights of the parties had been disposed of. Accordingly the husband contends that the application in the present proceedings to

the Circuit Court was an abuse of legal process as the issues or some of the issues which it was sought to determine in those

proceedings had already been disposed of in the High Court.

The case which the husband wishes to make by way of appeal to this Court was not made by him or on his behalf orally in

either the Circuit Court or the High Court. He did not appear and was not represented in those courts and accordingly was

unable to provide the Court with a note of the judgment made in either jurisdiction.

The husband has, however, provided this Court with a copy of the Civil Bill dated the 7th day of July, 1998, on which the circuit

proceedings were based. As the title to that document and the title to these proceedings indicates this matter was instituted

under the Family Law (Divorce) Act 1996 and in it the wife claimed a decree of divorce pursuant to s.5 (1) of that Act. In

addition she claimed - as she was entitled to claim under the 1996 Act - wide-ranging relief as being ancillary to that remedy.

As the remedy of divorce was not available before the Act of 1996 the orders made in the High Court in the earlier proceedings

could not have precluded the making of the orders sought and granted under the 1996 Act by the judge of the Circuit Court or

the judge of the High Court exercising that new jurisdiction. It has indeed been argued in other cases (see Kinahan .v. Baila

above) that the statutory prohibition on an appeal against a judgment of the High Court exercising its appellate jurisdiction does

not extend to ancillary matters. In Kinahan .v. Baila it was argued that an order of Mr Justice Lardner requiring an appellant

before the High Court, appealing against an order of the Circuit Court made in a custody case to give security for the costs of

the appeal did not fall within s.39 aforesaid. It was contended that the order of security was not a matter which had been

subject to adjudication in the Circuit Court and accordingly did not fall within s.39. That argument was rejected. In his judgment

Finlay CJ said:-

“I am quite satisfied that that does not take this appeal outside section 39, and I am quite satisfied that any

interlocutory application made and any decision made by the High Court exercising its appellate jurisdiction under the

Courts of Justice Act of 1936 in relation to appeals from the Circuit Court is captured, as is every other decision by the

High Court on a circuit appeal, by section 39 and there is no room in the interpretation of section 39 to make a special

exemption in relation to matters by way of interlocutory application raised for the first time in proceedings, provided

they are raised in a circuit appeal. I am, therefore satisfied that this Court has not got any jurisdiction to hear this

appeal, I am satisfied that the only order this Court can make, and should make, is to strike out the appeal for want of

jurisdiction. I am, therefore, quite satisfied that there can be no question of this Court varying, confirming or in any way

dealing with the order made in the High Court.”

The reality of this matter is that the husband is aggrieved by the fact that there appears to be no finality to his matrimonial

problems. If he is correct it is a defect in the legislation which does not provide for the finality which he seeks. There is,

however, no doubt whatever as to the legal principles applicable to this application. This Court has no jurisdiction to hear an

appeal from the High Court exercising its appellate jurisdiction in respect of decisions of the Circuit Court.

Accordingly the application to enlarge the time must be refused.