Supreme Court dismisses appeal for nullity decree where appellant failed to pursue claim for four years.

THE SUPREME COURT

Appeal No. 445/09

Denham J.

Hardiman J.

Fennelly J.

BETWEEN:

L.M.

APPLICANT

- AND -

JUDGE SEAN O’DONNABHAINN

RESPONDENT

- AND -

A. M.

NOTICE PARTY

JUDGMENT of Mr Justice Fennelly delivered on the 12th day of July 2011

1. This is an appeal from the judgment of the High Court (O’Neill J) delivered on 24th March 2009. The learned judge dismissed the

application of the appellant for judicial review by way of certiorari of a decision of the Circuit Court (the respondent, Judge Seán

O’Donnabháin) refusing to adjourn the appellant’s petition for a decree of nullity of his marriage to the Notice Party and dismissing his

claim to that effect. That petition had been brought by way of counterclaim to the claim of the Notice Party for a decree of Judicial

Separation.

2. The appellant claims that the decision of the respondent was made in breach of the requirements of fair procedures.

3. The appellant and the notice party were married to each other on 28th May, 1991. They have two children born in 1991 and 1996.

Unhappy differences, however, developed between them. This led the notice party to issue proceedings seeking a judicial separation

by way of Family Law Civil Bill on 4th December, 2001, in the Cork Circuit Court. The appellant delivered a defence and counterclaim

on 4th October, 2002, in which he sought a decree of nullity. The grounds for that claim were expressed as follows:

“(a) The respondent did not give a full, free and informed consent to the said purported marriage.

(b) The applicant was incapable of entering into and sustaining a normal lifelong marriage relationship with the respondent

as at the date of the celebration of the parties’ purported marriage.

(c) The respondent was incapable of entering into and sustaining a normal marital relationship with the applicant as at the

date of the celebration of the parties’ purported marriage.”

4. Both parties were at first represented by solicitors. The appellant’s solicitor came off record in May 2004. The solicitor has

explained in correspondence that it became clear to him that the matter was going to be “extremely protracted,” and that, as a sole

practitioner, he was unable to commit himself to the case. There is controversy about the circumstances of the appellant’s

subsequent lack of representation. The solicitor for the Notice Party has sworn that the appellant indicated that he wished to

conduct his own defence and counterclaim. The appellant denies that he ever expressed such an intention. He has sworn that, when

he went to obtain new representation, he found that he would have to pay a substantial sum before he could do so. At any rate, for

whatever reason, he has not, at any subsequent date, been represented by a solicitor, though he informed this Court that he applied

for Legal Aid in January 2007. He has represented himself in the Circuit Court and in these judicial review proceedings both in the High

Court and in this Court.

5. It is an undoubted fact that, as remarked by the learned High Court judge, the proceedings were very protracted. The appellant

complained, during the hearing of the appeal of the very large number of applications and motions which he had to face. These were

brought by the Notice Party. There were contentious issues concerning terms of access to children, payment of maintenance and

other bills and outgoings as well as discovery. At one point the Notice Party obtained an order restraining the appellant from moving

his assets out of the jurisdiction.

6. However, there is no evidence at all that the appellant, either when represented by a solicitor or thereafter, took any step

whatever to advance his case for nullity of the marriage. His claim simply remained on the record of the Circuit Court, while the Notice

Party pursued her claims in the context of the judicial-separation proceedings.

7. The Notice Party’s solicitors wrote three times to the appellant in September 2005 asking him to file a certificate of readiness in the

Circuit Court office confirming that the case was ready to proceed. He did not do so. Matters commenced to come to a head in the

course of 2006. On 20th July 2006, the respondent made an order dispensing with the appellant’s certificate of readiness. He then

also appointed Mr Edward Hogan, Clinical Psychologist as Medical Inspector for the purpose of the nullity proceedings.

8. On 18th January 2007, His Honour Judge O’Donoghue adjourned the proceedings on the basis that Mr Hogan’s report was not

complete. As already noted, the appellant applied for Legal Aid about that time.

9. On 27th March 2007, His Honour Judge Kenny, at Cork Circuit Court made an order that the nullity claim be dealt with first and

separately and that it be given priority. Thus, effectively, the judicial separation claim was left in abeyance. The nullity counterclaim

was listed for hearing on 11th May 2007. The Courts Service gave written notice of this date to the appellant on 16th April 2007,

though that notice confusingly said that the case was “coming on for uncontested motion” on that date.

10. The solicitor for the Notice Party has sworn that she had not been notified of the date, though she learned of the listing on a

routine visit to the court office on 8th May. She got in touch with Mr Hogan, the court-appointed Medical Inspector, who had also

not been informed of the date. Furthermore, his report was not available due to a computer problem. In these circumstances, she

instructed counsel, having notified the appellant, to apply to the Circuit Court for an adjournment on 10th May. That application was

refused. She notified the appellant that the judge had said the case must proceed on 11th May.

11. On 10th May, Mr Hogan informed the Notice Party’s solicitor that he had rearranged his schedule in order to be in court on 11th

May, that he would have his report proof-read overnight and that it would be available to the parties in the morning. The solicitor

informed the appellant of this.

12. The appellant telephoned Mr Hogan at 17:15 on 10th May, and left a voice message enquiring as to when he might have a copy

of the report. At 9 o’clock that evening, Mr Hogan replied to the effect that the appellant might have a copy of the report if he

attended at his office at 8:30 the following morning. He did so and obtained a copy. Mr Hogan warned, however, that it was a draft,

subject to correction and that he would deliver a final version when it was complete. At 11:10 Mr Hogan provided a final version to

the appellant at the Court House. He had also delivered a copy to the County Registrar. He said that, as he had delivered his report

to the court, he could not discuss it with either party.

13. This brings us to the events of the hearing before the respondent, which are the subject-matter of the appeal. Although there

has been an exchange of affidavits, there is no significant disagreement as to what occurred.

14. The case was called on at 11:30 am. The respondent asked the appellant whether he had read Mr. Hogan's report. He answered

that he had been provided with a copy immediately prior to the hearing and that, while he had read it, he believed that he had not

had adequate opportunity to consider it. The circumstances effectively denied him an opportunity to assess Mr. Hogan's opinions. If

the matter were to proceed, the appellant submitted that he would effectively be denied any opportunity to controvert any adverse

opinions in the report and would have been denied an opportunity to retain and consult an independent expert.

15. The respondent said that he had read the report and that "on the face of it you don't have a case." He added: "I suppose you

want an adjournment." The appellant confirmed that he did. The respondent refused to grant an adjournment and commented that

the matter had been "outstanding for some time."

16. The respondent invited the appellant to give evidence. The appellant informed the judge that he was awaiting a decision of the

Legal Aid Board on his application for Legal Aid. He said that he felt incapable of dealing with the case at that juncture without

professional legal representation.

17. The appellant declined to give evidence or to cross-examine the Notice Party, when she gave evidence. The appellant says that

he was "wholly overwhelmed" and that he "felt incapable of taking any further part in the proceedings." Mr. Hogan was not called to

give evidence. The hearing lasted 15 minutes at most.

18. The court made an order dismissing the application for a decree of nullity of marriage.

19. On 9th November 2007 the appellant swore an affidavit grounding an application for leave to apply for judicial review. The

application was not made in open court until 19th November 2007. The appellant sought an order of certiorari of the decision and

order of the respondent of 11th May 2007 refusing his application for a decree of nullity of marriage. The essence of the application is

that the respondent did not respect fair procedures when he refused to grant the appellant’s application for an adjournment of the

proceedings and proceeded to dismiss his application for a decree of nullity of marriage. In particular, the appellant had received the

report of the Medical Inspector only on the morning of the hearing and had had no opportunity to consider it. The appellant was not

legally represented; his application for Legal Aid was pending. The appellant claimed that there was objective bias on the part of the

learned Circuit Court judge insofar as he predetermined the application for an adjournment, without a proper hearing. In particular, he

suggested, without hearing any evidence, that the appellant had “no case”.

20. O'Neill J dismissed the application for the following reasons:

• the appellant had commenced the proceedings for nullity of marriage in 2002; he was obliged to satisfy a heavy onus in

order to obtain that relief; it was incumbent on him to assemble the proofs to make his case; he had not made any

attempt to do so; the Medical Inspector was appointed in order to assist the court and not the parties;

• there was an obligation on the court to promote the expeditious determination of proceedings; the respondent was

entitled to have regard to the extraordinary delay that had already occurred in the case since the commencement of the

proceedings; the decision to grant or refuse an adjournment is peculiarly within the discretion of the trial judge;

• the appellant had had an ample time and opportunity to have obtained legal representation; the learned judge noted

that the appellant had some valuable assets and that he had ultimately, for that reason, been refused legal aid;

• the appellant had not made out any case for bias on the part of the respondent such as he alleged;

• finally, the application for leave had been made outside the six month time limit permitted by the Rules; the learned

judge did not accept the appellant’s explanation that he had been under the mistaken belief that he could commence the

application in the Central Office, even if the application in court was made out of time.

The Appeal

21. The appellant represented himself ably at the hearing of the appeal. He contended that he had been denied a fair hearing by the

respondent. He said that he had not realised, either when he was represented by a solicitor or subsequently, that it was a matter for

him to produce evidence to support his case for nullity of marriage. He believed that he could rely upon the Medical Inspector

appointed by the court. He claimed that the circumstances in which he found himself were unfair. He did not have any reasonable

opportunity to consider the report. He repeated that he felt completely overwhelmed before the Circuit Court as an unrepresented

litigant. Questioned as to why he had not availed of his right to appeal to the High Court, he argued that he had not had a proper

hearing and that the appropriate remedy was not appeal but judicial review.

22. Mr. Paul Hutchinson, barrister at law, on behalf of the Notice Party submitted that the learned trial judge was correct in law. The

question of whether or not to adjourn the proceedings was a matter for the discretion of the judge of the Circuit Court. He was

entitled to take into account all of the circumstances, including the delays on the part of the appellant. The appellant had, in fact,

been offered the opportunity both to give evidence and to cross-examine but declined to do either. Finally, counsel argued that, even

if the court were to be against him on these points, the relief should be refused to the applicant on discretionary grounds. The court

will, in appropriate cases, refuse relief when the interests of a third-party would be affected. The decision of this Court in State

(Cussen) v. Brennan [1981] IR 181 is authority for the proposition that, where the rights of third parties stand to be affected by the

outcome of an application for judicial review, relief may be refused: in that case on the ground of delay within the proceedings. In the

present case, the judicial separation proceedings have been heard in the Circuit Court and are on appeal to the High Court. Moreover,

the Notice Party has obtained a decree of divorce in Cork Circuit Court on 23rd March 2009.

Consideration of the Appeal

23. I would dispose immediately of two issues on the appeal. Firstly, I do not agree that, in the circumstances, the learned High Court

Judge was right to dismiss the appellant’s claim on grounds of delay. His application for leave was only barely outside the permitted six

month time limit. He had prepared his documents and sworn his grounding affidavit within the time. He explained that he was under

the misapprehension that it was sufficient if he filed the documents in the office in time. Given the very short period involved and the

fact that the appellant was appearing in person, this explanation was a reasonable one. Secondly, and on the other hand, I do not

think that this is a true case of bias at all. To the extent that the learned Circuit Court Judge had disposed of the application for an

adjournment in an abrupt or peremptory fashion, the appellant may well advance a complaint grounded on departure from fair

procedures. That in truth is the burden of his complaint. It is unnecessary to raise any issue of bias. The behaviour of the learned

Circuit judge does not evince any disposition to favour one party over another, merely to dispose of the case. I do not believe that

the facts outlined by the appellant disclose any basis for objective bias.

24. The question then is whether the learned respondent committed a breach of the appellant’s entitlement to have fair procedures

applied to him. It is undoubtedly the case that questions of whether or not proceedings should be adjourned are, in their essence,

matters for the discretion of the judge hearing the case. (see the judgment of Keane C.J. in R. B. v A.S. (Nullity; Domicile) [2002] I.R.

428 at 447). Courts of appeal are most reluctant to interfere. Adjournment decisions are made in the course of the daily work of the

courts on a routine basis. Judges under pressure of heavy lists are entitled to a wide margin of discretion. Nonetheless, they are, at

the same time, under a constant obligation to behave justly in making those decisions. Even judges under pressure of time and

business must always be conscious of this. The question for judgement is whether the respondent, in the present case, acted within

the broad scope of his jurisdiction or whether his decision was so unfair that he stepped outside those limits.

25. There were two essential issues before the respondent. I will deal firstly with the issue which seems to have arisen second in

time, namely the appellant’s then pending application for legal aid. This type of ground for an adjournment arises very frequently,

even in this court. We know that, in the present case, the appellant had previously been represented by a solicitor and that,

voluntarily or not, he continued to conduct the proceedings in person for some three years leading up to May 2007. We also know

that he applied for legal aid only in January 2007. We do not know how much of this information was placed before the Circuit Court.

The judge would have been entitled to come to the conclusion, from his general knowledge of the history of the case, that the

appellant was a person of at least some means and to take into account the delay in the case. It was not unreasonable for him to

conclude that the proceedings should not be delayed further for the appellant to seek Legal Aid. His solicitor had ceased to act for

him more than three years before at that stage. I do not find it possible to criticise the decision of the respondent on that ground.

26. The respondent’s treatment of the issue of the expert report seems to be somewhat different. Both of the parties as well as the

judge were aware that the report had only become available on the very morning of the hearing. The appellant is, of course, open to

criticism for delay and, as I would suggest, for failure to take steps to obtain his own report. Nonetheless, as an unrepresented

litigant, he was in an extremely difficult position. I have no difficulty in accepting that, on the day, he was overwhelmed by the

circumstances. It is notable that, on the day before, the Notice Party had applied for an adjournment on the ground of the absence

of the report. I regret that I have come to the conclusion that the respondent was, perhaps understandably, unduly hasty in his

decision on the adjournment application made by the appellant. I note, of course, that he remarked that the case had been

"outstanding for some time." However, he did not advert to the key point made by the appellant, namely that, in circumstances where

he had received a copy of the report only very shortly before the hearing and had not had an opportunity to consider whether he

required an expert witness himself, he was simply unable to deal with the matter. The consequence, it must be observed, was the

dismissal of the claim for a decree of nullity. Looking at the matter in a purely objective sense, I do not think the respondent

sufficiently respected fair procedures, when he refused the adjournment. O’Neill J was correct to take note of the obligation of the

courts to ensure efficiency in the despatch of business. It seems probable that the respondent was acting to that end, as witness his

refusal of an adjournment to the Notice Party on the previous day. In the end, however, this led him into a failure to respect the

appellant’s right to fair procedures.

27. For these reasons, I would, in the ordinary way, be disposed to grant relief to the appellant. However, as counsel for the Notice

Party has argued, it is always within the ultimate discretion of the court whether or not an order of the certiorari should be granted.

The court will not lightly refuse an order to a party who has established that his rights have been infringed. Even where a party has

established that an order or decision should be quashed ex debito justitiae, that party does not have an unqualified right to an order.

In the final analysis, the grant of relief by way of certiorari is within the discretion of the court. .

28. The discretionary nature of the remedy of certiorari was emphasised by Denham J in her judgment in de Róiste v Minister for

Defence [2001] 1 I.R. 190 at 204. Referring to judicial review, she said; “there is no absolute right to its use, there are limits to its

application.” She added (at page 205) that the “discretion of the court is not absolute but exercised in accordance with principles.”

In support of her judgment, she cited the discussion of the element of discretion in judicial review in the judgment of O’Higgins C.J. in

The State (Abenglen Properties Ltd.) v. Dublin Corporation [1984] I.R. 381 at pp. 392 to 393 as follows:

“Where [the] applicant has been affected or penalised and is an aggrieved person, it is commonly said that certiorari

issues ex debito justitiae. This should not be taken as meaning that a discretion does not remain in the High Court as to

whether to give the relief or to refuse it. There may be exceptional and rare cases where a criminal conviction has been

recorded otherwise than in due course of law and the matter cannot be set right except by certiorari . In such

circumstances the discretion may be exercisable only in favour of quashing: see The State (Vozza) v. Ó Floinn [1957] I.R.

227. In the vast majority of cases, however, a person whose legal rights have been infringed may be awarded certiorari

ex debito justitiae if he can establish any of the recognised grounds for quashing; but the court retains a discretion to

refuse his application if his conduct has been such as to disentitle him to relief or, I may add, if the relief is not necessary

for the protection of those rights. For the court to act otherwise, almost as of course, once an irregularity or defect is

established in the impugned proceedings, would be to debase this great remedy."

29. In my own judgment in de Róiste v Minister for Defence, I reviewed a number of the cases and reached the following conclusion

at page 220:

“It is clear from a reading of the aforementioned case [referring to The State (Vozza) v. Ó Floinn] as well as many other

cases that an order of certiorari is always, as a matter of principle, discretionary. But the nature of that discretion must

be considered in two different contexts. An applicant who is not directly affected by the legal act which he attacks can

do no more than ask the court to exercise its discretion to quash an order. Applications of this sort are rare. When the

order is one to which the applicant is entitled ex debito justitiae , i.e. one which affects him directly, that discretion can

normally be exercised in only one way (i.e. in his favour). That does not mean, however, that the behaviour of the

applicant may not be such as to deprive him of his prima facie right to relief. This gives rise to a second context for the

exercise of discretion.

“A close reading of The State (Kelly) v. District Justice for Brandon [1947] I.R. 258 and The State (Vozza) v. Ó Floinn

[1957] I.R. 227 reveals that, though in each case the order was one to which the applicant was entitled ex debito

justitiae , the court considered whether delay and lack of candour, respectively, would bar the applicant from relief. In

each case, the court concluded, not that these were inadmissible grounds, but rather that they were not established on

the facts of the respective cases.”

29. Apart from delay in applying to the court, the matters which are particularly open to consideration by the court are: firstly,

whether the order would unfairly affect the rights or interests of others; secondly the behaviour of the appellant. Very often, these

matters need to be considered in combination. On the first point, the decision in State (Cussen) v. Brennan is further authority for the

general proposition that there is discretion to refuse an order of certiorari. As Henchy J expressed it at page 195 of the report:

“ Since those orders [mandamus and certiorari] are discretionary in the circumstances of this case, the court must be

satisfied not only as to matters such as default in the performance of a public duty and jurisdictional error, but also that

it would be just and proper in all the circumstances to grant those orders.”

30. In that case, the Court held that the Local Appointments Commissioners had made an invalid decision appointing a candidate to a

post of paediatrician in the Southern Health Board. They had, in the view of the Court, inserted without authority an additional

qualification in the Irish language. However, the applicant, a disappointed candidate for the post, failed in his application for certiorari,

although he succeeded on the legal point. He failed because he delayed for what looks like a comparatively short period of four

months before bringing his application. In the meantime, the other candidate had taken up the post.

31. The most notable aspect of the present case, to my mind, is the delay, amounting to complete failure, by the appellant to take

any steps whatever to advance his claim based on nullity of marriage. The proceedings initiated by the Notice Party were for judicial

separation. An order for judicial separation presumes the existence of a valid marriage. The appellant chose, by way of counterclaim,

as long ago as October 2002, to allege that the marriage was invalid. The terms of the pleading, quoted above, demonstrate some

knowledge of the nature of the burden being undertaken. The appellant cannot escape responsibility for the nature of the plea which

was filed on his behalf. He thereby undertook a heavy onus. There is a general presumption in favour of the validity of marriage. The

onus of proof has been described variously but, at a minimum, it must be established on the balance of probabilities, although stronger

expressions have been used. In her High Court decision in S. v. K., (Unreported, High Court July 2, 1992,), Denham J. held:

“The onus of proof is on the Petitioner. There is a presumption of law that the marriage is valid. The Petitioner carries a

heavy burden to discharge to show that the marriage is invalid.”

32. It is apparent that the appellant took no step whatever between 2002 and 2007 to advance his case based on nullity. He was

represented by a solicitor up to May 2004 and it is impossible to believe that he did not have some appreciation that he had to

establish the nullity. I cannot accept the excuse that the appellant believed that he could rely on the court-appointed Medical

Inspector. That appointment did not take place until July 2006, more than three years after the appellant had filed his counterclaim

for a decree of nullity. In the meantime, he had been asked three times to file a certificate of readiness, but failed to do so.

33. The procedural history of the case demonstrates that it was the Notice Party who initiated almost all the steps, but these related

to the judicial separation. The effect of the challenge to the existence of the marriage was, of course, potentially to undermine her

proceedings. Hence, the Circuit Court rightly decided that the nullity case had to be heard first. Consequently, the very existence of

that claim had the effect of postponing a determination of her claim.

34. The appellant, at the hearing of the appeal, sought to call in aid a wide range of personal difficulties in his own life, his

preoccupation with his work, his obligation to his ailing mother, his children. In short, he had a busy life. I cannot accept any of this

as excusing a total failure to take any step to justify the allegation he had made that the marriage was null and void. In particular, I

cannot accept the excuse that the appellant was unrepresented. He has shown that he is an intelligent man, well capable of

understanding issues of law.

35. Consequently, I am quite satisfied that, whatever the defect in the hearing of 11th May 2007, the appellant should not be

granted any order setting it aside. Such an order would have the effect of sending both parties back at least four years and would

put in question the judicial separation proceedings which have already taken place. I believe that would be unjust to the Notice Party.

36. I would dismiss the appeal and affirm the decision of the High Court, though on somewhat different grounds.