Supreme Court dismisses appeal for mandatory injunction to bypass Electoral Act 2002 nomination rules.

[2002] IESC 70

THE SUPREME COURT

Record No: 120/20.

Murphy J.

Geoghegan J.

Fennelly J.

Between:

Denis Riordan

Applicant/Appellant

AND

Government of Ireland, Minister for the Environment and Local Government, Attorney General & Ireland

Respondents

Judgment of the Court delivered by Mr Justice Francis D Murphy on the 15th day of October 2002

1. Sections 46 (4A), (4B) and (4C) of the Electoral Act, 1992 as inserted by s.1 (d) of the Electoral (Amendment) Act, 2002 provide

in effect that any person wishing to stand for election for membership of Dáil Eireann who is not affiliated to a registered political

party is required to secure the assent to his nomination for such election of 30 persons registered as Dáil electors in the constituency

in which such person proposes to seek election.

2. Section 52 of the Electoral Act, 1992 as amended by s.1 of the Act of 2002 so far as material provides as follows:-

“52(1) The returning officer shall rule on the validity of each nomination paper within one hour after its delivery and may

rule that it is invalid if, but only if, the returning officer considers that:

(a) in the case of the nomination paper of a candidate referred to in section 46(4A), the nomination is not assented

to in the manner required by section 46, and

(b) in the case of the nomination paper of any candidate, the paper is for any other reason not properly made out

or signed.”

3. The above named Denis Riordan (the applicant) was desirous of presenting himself as a candidate for election to Dáil Eireann at the

election to be held on Friday, 17th May, 2002. In accordance with the legislative provisions, nominations for that election closed at

12:00 am on the morning of Friday 3rd May, 2002. As the candidature of the applicant was not authenticated by a certificate of

political affiliation as required by s.46 of the Act of 1992 (as inserted by the Act of 2002) he was required under the terms of the Act

to have his nomination paper assented to by 30 persons registered as Dáil electors in the constituency for which he proposed to

stand for election. The applicant did not procure the assents aforesaid. It appears that on Wednesday the 1st May, 2002, the

applicant submitted his nomination paper without such assents to the returning officer of the Limerick East Dáil election constituency

and that such nomination paper was rejected as being invalid by the returning officer on tbe grounds that the minimum number of

assents had not been obtained therefor. By order of the High Court dated the 30th April, 2002, McKechnie J. gave liberty to apply to

the High Court by way of an application for judicial review for first, a series of declarations that the provisions of the Electoral Act,

1992 as amended by the Electoral (Amendment Act, 2002, were repugnant to the Constitution and, secondly, for an injunction in the

following terms:-

“An order requiring the returning officer of the constituency of Limerick East to accept the nomination paper of Denis

Riordan, citizen of Ireland, as a candidate for election to Dáil Eireann in the general election taking place on Friday the

17th day of May 2002 subject to the nomination paper meeting the requirements of subsections (1)(b) and subsections 2

to 7 inclusive of s.52 of the Electoral Act 1992 as amended by the Electoral (Amendment) Act, 2002.”

4. The matter came on for hearing before Kearns J on the 2nd May, 2002. For the reasons set out in an ex tempore judgment

delivered on that date the learned trial judge refused the application for an injunction, adjourned the matter to the next judicial

review list to fix dates and reserved the costs of the application. From that judgment and order the applicant appealed to this Court

by way of notice of motion dated the 7th May, 2002.

5. On the 10th May, 2002, this Court dismissed the appeal by the applicant and refused the injunctive relief sought by him. It was

then indicated that the Court would give its reasons for its decision this term.

6. First, it must be emphasised that the contention of the applicant that various sections of the Electoral (Amendment) Act, 2002,

are repugnant to the Constitution has not been judicially determined. That matter is still outstanding and may be pursued in the High

Court in whatever manner may be appropriate. Secondly, it must be recognised that the granting of a mandatory injunction on an

interlocutory application is exceptional though not unknown. Thirdly, subject to the recognition of the propositions established in

Campus Oil Ltd. v. Minister for Industry and Energy (No. 2) [1983] I.R. 88, the application of the general equitable principles confers

upon the trial judge a wide discretion as to whether he or she will grant injunctive relief and that is a discretion with which this Court

will not lightly interfere. Fourthly, this Court accepts that the courts may, in accordance with the decision in Pesca Valentia Ltd v.

Minister for Fisheries [1985] I.R. 193, grant injunctive relief where it is contended that particular legislation is unconstitutional.

7. Fifthly, this Court rejects the submission of the applicant that the urgency or expedition with which the Electoral (Amendment)

Act, 2002 was enacted is material to the relief claimed herein.

8. Sixthly, this Court would find it difficult to imagine any circumstances in which a public official would be directed by means of an

interlocutory mandatory order to carry out an act which would be in direct breach of the express terms of legislative provisions unless

and until those provisions had been condemned by a court of competent jurisdiction.

9. In the course of his judgment Kearns J. having commented on the very late stage at which the application was brought and the

consequences of granting the relief sought went on to say :-

“What, effectively, the Court is being asked to do is at an interlocutory stage to, effectively, declare the 2002 Electoral

Act unconstitutional. There is not two ways about it, that is what the Court is being asked to do at an interlocutory

stage and, in effect, to go further and by mandatory injunction insert or add names on to ballot papers without any road

map or rules as to how that situation is to be addressed or as to what limitations or organisational arrangements should

have obtained in those circumstances. Quite frankly, I do not believe the Court should, absent the most extraordinary

circumstances, go down that road.”

10. The learned trial judge was entitled to exercise his discretion to refuse the far-reaching relief sought and in the opinion of this

Court was correct in so doing. For these reasons the appeal has been dismissed and the order of Kearns J. affirmed.