Judgment Title: Talbot -v- McCann Fitzgerald Solicitors & ors
Composition of Court: Denham J., Kearns J. Clarke J.
Judgment by: Denham J.
Status of Judgment: Approved
THE SUPREME COURT
[Appeal No: 114/06]Denham J.
McCann Fitzgerald Solicitors
Mrs Thérèse Talbot
Judge Michael White
Judge Jacqueline Linnane
Chief State Solicitor
Defendants/RespondentsJudgment delivered the 26th day of March, 2009 by Denham J.
Thomas Talbot, the plaintiff/appellant, hereinafter referred to as "the appellant", has brought an ex parte motion and notice of vacation seeking to set aside a final judgment and order of this Court delivered on the 29th June, 2007, dismissing his appeal from a judgment and order of the High Court given and made on the 6th February, 2006, which refused his application for leave to apply for judicial review.
2. Exceptional Jurisdiction
The appellant seeks to set aside a final judgment and order of this Court. He requests this Court to exercise a jurisdiction which arises only in extremely rare and exceptional cases.
3. Constitutional Principle
The fundamental constitutional principle is that the decision of the Supreme Court is final and conclusive on matters which have been raised before it and on which a final order has been made. This principle is grounded in the Constitution of Ireland, 1937, Article 34.4.6˚ which provides:-
"The decision of the Supreme Court shall in all cases be final and conclusive."
Under the common law a final order is conclusive also, however, a few exceptions exist. These exceptions relate to technical matters and do not establish a right to review a final order. In Belville Holdings Ltd. v. Revenue Commissioners  1 I.L.R.M. 29 at pp.36 and 37 Finlay C.J. stated:-
"There is, however, I am satisfied, a wider and more fundamental jurisdiction in a court to amend an order which it has previously made, even though that order is in the form of a final order and has been perfected.
We have not been referred to, nor have I been able to discover, any decision of this Court or of the Irish courts dealing with this question."
Finlay C.J. reviewed some decisions from the Courts of England and Wales and stated that:-
"The position and principles appear, however, to be accurately stated in the judgment of Romer J. inAinsworth v. Wilding  1 Ch. 673. where at p.677, he stated as follows:
'So far as I am aware, the only cases in which the court can interfere after the passing and entering of the judgment are these:
(1) Where there has been an accidental slip in the judgment as drawn up, in which case the court has power to rectify it under O.28.r.11:
(2) When the court itself finds that the judgment as drawn up does not correctly state what the court actually decided and intended.'"
Having referred to some further cases Finlay C.J. concluded that:-
"I am satisfied that these expressions of opinion validly represent what the true common law principle is concerning this question. I would emphasise, however, that it is only in special or unusual circumstances that an amendment of an order passed and perfected, where the order is of a final nature, should be made by the court. 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."
As I pointed out in G.McG. v. D.W. (No.2) (Joinder of Attorney General)  4 IR 1 at p.14 the inherent jurisdiction of the Courts as expressed in Belville does not encroach on the principle of the finality of litigation but rather is utilised to ensure that the intent of the Court in making an order is met.
The reason for this fundamental principle, that a final judgment is conclusive of the litigation, is because the finality of litigation is an important concept in the administration of justice. In The Ampthill Peerage  A.C. 547 at p.576 Lord Simon of Glaisdale described the concept as follows:-
"Important though the issues may be, how extensive whatsoever 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.'"
In essence, the principle of finality in litigation is to underpin certainty in the administration of justice. It is a fundamental principle for the common good. It ensures that litigation comes to an end and that there is certainty in the situation.
The inherent jurisdiction referred to above enables a court to vary a final order so that the true intent of the court is carried out. However, an action may be brought to set aside an order obtained by fraud. This would be by way of new and separate proceedings from the original action.
7. An exception under the Constitution
The concept of an inherent jurisdiction under the Constitution of Ireland 1937 to vary an order of the Supreme Court has been considered. In Attorney General v. Open Door Counselling Ltd (No.2)  2 I.R. 333 the jurisdiction of this Court to vary a final order arose. In that case Finlay C.J. (with whom Hederman, Egan and Blayney JJ agreed) stated that the first issue for determination was whether the Supreme Court had any such jurisdiction to vary or discharge a final order. Finlay C.J. referred to his judgment in Belville and he stated that exceptions to that principle may arise where it is established that a judgment has been obtained by fraud. Finlay C.J. held that the jurisdiction did not arise in the Attorney General v. Open Door Counselling Ltd. case. He stated at p.342:-
"I am quite satisfied that it is wholly inconsistent with the constitutional obligations and the jurisprudence of this Court, for it to consider a question of the interpretation of the Constitution by way of motion to vary an order previously made in an appeal finally determined by it which, by inevitable necessity, has never arisen in the High Court or been decided by the High Court and, furthermore, is in the instant case a provision of the Constitution which was not in force or enacted at the time when the appeal was determined."
In Open Door Counselling I wrote a dissenting judgment being of the opinion that the extant order of the Court manifestly breached a constitutional right. I considered that the Court has an inherent jurisdiction to ensure that the Constitution is not, and that rights thereunder are not, circumvented. I held that the Court has a duty to ensure that the Constitution and justice are upheld and that in that case the exceptional jurisdiction arose, and in the circumstances I would make an order varying the previous order of the Supreme Court.
8. Circumstances of a Case
In determining whether the jurisdiction arises the Court should consider all the circumstances of the case. In In Re Greendale Developments Ltd. (No. 3)  2 I.R. 514 an application to set aside the order of the Supreme Court was brought on the grounds that the core issue addressed (ultra vires) was decided by the Court without affording the applicants any proper opportunity to argue the point. Hamilton C.J. concluded:-
"The common law and public policy recognised the desire for finality in proceedingsinter partes and Article 34.4.6 of the Constitution incorporated into the Constitution this desire and expressed it in clear and unambiguous terms. It provided that the decision of the Supreme Court shall in all cases be final and conclusive. The said provision is expressed to apply in all cases and there is nothing in the circumstances of this appeal which would justify disregarding the said provision."
In that case I stated at pp 539 and 540, of such an application in relation to a final order that:-
"The court has to balance the application against the jurisprudence, of the common law and the Constitution, of the finality of an order. Whilst the Supreme Court is guardian of constitutional rights, it must also protect the administration of justice which includes the concept of finality in litigation."
9. The circumstances must be such as to justify disregarding the primary principle that the order is final. In Bula Ltd v. Tara Mines Ltd (No.6)  4 I.R. 412 the applicants initially appealed against the judgment and order the High Court (Lynch J.) of the 6th February, 1997. The appeal was heard, determined and dismissed by the Supreme Court (Hamilton C.J., Barrington and Keane JJ.). Subsequently the applicants applied seeking to have the judgment of the Supreme Court set aside on grounds of objective bias. The applicants alleged that Barrington J. and Keane J., when practising at the Bar, had had links with the respondents which were of such a character as to give rise to a perception of bias. Barrington J. had acted for the fifteenth respondent in two sets of proceedings, relating to the Tara respondents in one case and the applicants in another; had advised on legislative reform in the area of mineral mining; had acted against Tara in a case; and had prepared two sets of advices for the first named respondent. Keane C.J. had advised the first named respondent as to an exempted development under the planning legislation and had undertaken to appear for the first named respondent in an anticipated hearing before An Bord Pleanála, which in the end he did not so do as he was appointed to the High Court. The applicants contended that objective bias arose from these connections between these judges and the respondents.
The Supreme Court held that it had an inherent jurisdiction to protect constitutional rights and justice. This jurisdiction may arise on an application relating to a final judgment of the Supreme Court, but only in rare and exceptional cases would it be invoked to protect a constitutional right or justice.
This Court exercised that jurisdiction in Bula Ltd v. Tara Mines Ltd No.6 and considered the application alleging perceived bias. It held that the test was whether an ordinary reasonable member of the public would have a reasonable apprehension that an appellant would not have a fair hearing from an impartial judge. It was pointed out that barristers were independent and did not become espoused to a litigant's ambitions in providing the litigant with legal services. The reasonable person would be aware of that. A prior relationship of legal advisor and client did not generally disqualify the former advisor on becoming a member of court sitting in proceedings to which the former client is a party. There must be additional factors establishing a cogent and rational link between the previous association and its capacity to influence the decision to be made in the particular case. A reasonable apprehension would arise where the judge as counsel had previously given legal services to a party on issues alive in the case to be heard by the court. In that case I referred to the fact that there were seventeen alleged links between the respondents and the two judges, and that it was alleged that there was a reasonable apprehension of bias because of the links alleged. I found that none of the seventeen alleged links raised an issue so as to ground such an application. The Court dismissed the application.
10. In Kenny v. Trinity College & anor  IESC 42 by notice of motion Mr Kenny applied for an order vacating the order made by the Supreme Court on 20th June, 2003, on the ground of objective bias. Mr Kenny submitted that the facts were sufficient to establish objective bias. The gravamen of his claim was that one of the judges who heard his application was a brother of an architect in the firm of architects which were witnesses in the case and were responsible for the design and execution of the development. The respondent in that case relied on two factors, (i) that the architect mentioned had no involvement whatever with the development in question; and that (ii) the architect was not a party, but that a member of the firm in a different city had charge of the project and was a witness in the proceedings.
There was no analysis in Kenny of the nature of the jurisdiction of the Court to set aside an order which is final and conclusive. There was no express decision as to what gave rise to the jurisdiction in that case and as to why the jurisdiction should be exercised in that case. Consequently the case does not assist the jurisprudence on this topic. Kenny did analyse the nature of objective bias. The test for objective bias was referred to, as were cases relevant to that test, and an order was made setting aside the order of the 20th June, 2003.
11. Applicable Law
The applicable law may be found in the Constitution of Ireland, 1937 and case law.
(i) The Constitution provides that the decision of the Supreme Court shall in all cases be final and conclusive.
(ii) In Attorney General v. Open Door Counselling Ltd. No.2  2 I.R. 333 the Supreme Court held that it was inconsistent with the constitutional obligations and jurisprudence of the Court to vary the order previously made in an appeal finally determined by the Court.
(iii) The common law and public policy recognises the desire for finality in proceedings inter partes. Article 34.4.6 of the Constitution incorporated into the Constitution this desire and expressed it in clear and unambiguous terms. This is the fundamental principle to be applied by the Court. As Hamilton C.J. said in In Re Greendale Developments Ltd. (No.3) at p.536:
"… there is nothing in the circumstances of this appeal which would justify disregarding the said provision."
(iv) Bula Ltd. v. Tara Mines Ltd. (No.6), held that the Supreme Court could set aside its own decisions in rare and exceptional cases as an exercise of its inherent jurisdiction to protect constitutional rights and justice. McGuinness J. held at p.478:-
"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. It is in this context that this court must consider the facts of the present case and the arguments put forward by the applicants."
(v) Therefore, in this case the appellant must establish:-
(a) That the circumstances of this case are such as to give rise to this rare and exceptional jurisdiction.
(b) If this jurisdiction arises, that there was good reason to exercise it, such as establishing that there was objective bias.
12. Judicial Review
The appellant has sought to bring this motion to set aside the judgment of the Supreme Court made on the 29th June, 2007. That judgment related to an application for leave to apply for judicial review in the High Court.
13. The application for leave to apply for judicial review in the High Court was sought in relation to several decisions of the Circuit Court including:-
(i) The Hon Mr Justice Spain on the 1st May, 1990,
(ii) Judge White on the 21st November, 2001,
(iii) Judge Linnane in April, 2004 relating to an Isaac Wunder order.
Also, the appellant referred extensively to proceedings before those courts and raised issues and complained of the first named defendant/respondent and its letters.
14. The appellant argued and stressed that the inherent strength of his case proved that there was bias by the court when determining the application against him. While I am not satisfied that there is any such applicable principle, I have considered the strength of the appellant's case in both the High Court and the Supreme Court.
15. In essence the appellant brought an application seeking leave to apply to judicially review a decision and/or decisions of the High Court which were hearings of appeals from the Circuit Court.
16. This application was refused on the 6th February, 2006 by Peart J.
17. Peart J. held:-
"The applicant made an ex parte application for leave to seek relief by way of judicial review of certain orders made in the Circuit Court in family law proceedings to which he was the respondent party.
It is very difficult to understand the background to the present application by reference only to the documentation prepared and produced to the Court by the applicant. He is unrepresented. But there is a very clear and useful summary of the chronology of events which is contained in a judgment of Mr Justice Abbott dated 26th June 2002 when making his decision on the Appeal by the applicant from the order of the Circuit Court (His Honour Judge White) dated 21st November 2001. That arose out of an application for, inter alia, an order of divorce. There had in 1990 been an order for judicial separation, and other ancillary orders, by His Honour the late Judge Spain. The applicant appealed against the making of those orders, which in due course was affirmed by McKenzie J. in the High Court.
In his judgment, Mr Justice Abbott referred to the fact that the litigation between the applicant and his former wife has been protracted. That is certainly so. In order to assist the applicant in his present application I sought the Circuit Court and High Court files so that I could perhaps better understand what relief the applicant was seeking and the reasons for same, since that was not at all obvious from the documentation produced by the application when he moved his application. When these files arrived to me it was evident that they amounted to a bundle of documents measuring about one foot in height. The applicant has sought already to obtain leave to seek relief by way of judicial review in respect of the order of Mr Justice Abbott already referred to. That application was refused by Mr Justice Quirke on the 7th February 2003.
Having considered the applicant's ex parte application I informed him on the 6th February 2006 that I was not satisfied that he had shown any arguable grounds for seeking a judicial review of the order of His Honour Judge White and that indeed he was many years outside the time for so doing in any event. I drew attention to the fact that he had already availed of his right to appeal to the High Court against that order, and that there could be no question of another judge of the High Court judicially reviewing an order of a High Court judge.
I will not attempt to try and set forth the grounds upon which the applicant seeks to rely in the papers prepared by him since the contents are so incomprehensible that such a task is impossible. But it is without any doubt in my view that it is an attempt to impugn orders of the Circuit Court made several years ago, and in respect of which appeals have been heard and adjudicated upon. In my view the applicant is out of time by a long way, even if he could show, which he has not, that there are arguable grounds for contending that he is entitled to seek relief. I exercised my discretion in the matter not to grant leave, having made all reasonable allowance in considering the papers for the fact and that the applicant is representing himself."
18. The appellant appealed the decision of the High Court (Peart J.) to the Supreme Court.
19. On the 29th June, 2007, the Supreme Court heard and gave judgment, in an ex tempore judgment delivered by Fennelly J., (with which Macken J. and Finnegan J. agreed). Fennelly J. held:-
"Mr Talbot appears before this court seeking leave to apply for judicial review of certain Circuit Court decisions. He made this application initially before Mr Justice Peart in the High Court on foot of a document entitled introductory motion, and which is dated with two dates, the 23/03/05 and the 25/11/05.
The judicial review procedure under Order 84 of the Rules of the Superior Court requires that there be a statement of grounds. It also requires that that statement of grounds be verified on affidavit. The document which at the top is headed "Introductory Motion" says that it is an application for judicial review ex parte. That obviously has to be interpreted as an application for leave to apply for judicial review, because of course judicial review itself cannot be obtained ex parte. The purpose of the ex parte application is to obtain leave from the court to apply for judicial review.
Mr Justice Peart heard that application in the High Court and by his order of the 6th February, 2006 he refused it. The applicant, Mr Talbot, applies to this court, not by way of appeal, but by way of application ex parte in this court for leave to apply for judicial review.
He still relies, as he has to, on the document entitled "Introductory Motion" and application for judicial review ex parte. He has however, produced no verifying affidavit. But he has made it clear that the Circuit Court orders in respect of which he seeks judicial review are made respectively by Judges White, Linnane and Spain. There were two substantive hearings in the Circuit Court. The first of those was before Judge Spain who made his decision in the Circuit Court order of the 1st May, 1990. The second of those was made by Judge White in the Circuit Court and it was heard and determined by an order of the 21st November, 2001. I will leave aside the matter of the order of Judge Linnane for the moment, but two things stand out in respect of the two orders respectively of the 1st May, 1990 and the 21st November, 2001. The first is that each of them is so long ago that an application for judicial review is extraordinarily late and is out of time and the second is that each of those was appealed to the High Court, there was a rehearing in the High Court and there was a High Court order. The consequences of those two matters are as follows; firstly in relation to time, the rules in Order 84 provide that any application for judicial review must be made at the earliest possible time but in any event within respective periods of three or six months depending on the nature of the order made. In the case of certiorari it should be six months. So the application here would be for an order of certiorari clearly of the two Circuit Court orders.
It is quite obvious that these orders were in each case made many years ago and much longer ago than six months. Now the law provides and the rules provide for extensions of time in cases where grounds for an extension are established. That has to be done by the applicant who has to explain the reasons for the delay. No attempt has been made in this case to explain the delay, there is no affidavit setting out grounds of any sort and there is no attempt to explain why the applications are being made so late. That in itself would be sufficient ground for refusing leave in each case.
The second is just as fundamental, in one sense perhaps more fundamental, and that is that each of those orders was appealed to the High Court. There was a full High Court hearing and in each case an order was made at the end of that hearing by the High Court. In the case of the order made by Judge Spain in the Circuit Court, it was made after hearing in the High Court by Mr Justice McKenzie and that order was dated the 28th February, 1991. In the other case there was an order made by Mr Justice Abbott in the High Court on appeal from the decision of Judge White and that order was made on the 26th June, 2002.
So those matters were fully heard and determined in the High Court. Two further points then arise. The first is that no appeal lies to the Supreme Court from an order made by the High Court on appeal from the Circuit Court. That is well established. This court has no jurisdiction. That aspect of the constitutional right of appeal from the High Court is regulated by law and it has been well established that no appeal lies. The second is, although no application is made of course for judicial review of either of those orders, the fact is that it could not be because no remedy by way of judicial review lies against a High Court order.
The attempt to question the validity of the two orders respectively of Judge Spain and Judge White is entirely baseless and without any possible foundation and therefore this court will refuse judicial review.
The remaining matter then is an order made in April, 2004 by Her Honour Judge Linnane in the Circuit Court. That order related to an application which was made by the applicant originally in the Circuit Court proceedings for an order known, under the colloquial appellation of an Isaac Wunder order, a sort of order which restrains vexatious litigants from pursuing repeated applications before a court. That application was made but no order was made and that is the vitally important matter. Judge Linnane made no order whatever on foot of the application for the Isaac Wunder order, except to adjourn it.
Apart from that altogether there are two other vital, obvious and fundamental matters which render this application in respect of Judge Linnane's order baseless and without foundation like the others and that is there is no grounding affidavit at all. Indeed, Mr Talbot says before this court, that he believes, interpreting Rule 19, not Rule 84, Order 19 of the Rules of the Superior Courts that he does not have to produce any affidavit. That is his reason for not producing it, but the fact of the matter is that he has not produced any affidavit grounding leave to apply for judicial review. On that ground alone the application would have to be refused as being completely unjustified by evidence. But the second is that, in any event, that order, although perhaps not so long ago as the other two orders, was made more than three years ago now, and there is no attempt in that case either to justify the delay in applying for judicial review. It has to be said, in the end, that no substantive order was in any event made by Judge Linnane. Her only order was that the matter be adjourned with liberty to re-enter.
So in these circumstances the court, having given Mr Talbot every opportunity to present the grounds for his applications for leave to apply for judicial review is satisfied, but they are without foundation and must be refused."
20. It is clear that the Supreme Court addressed the case and pointed out that there was no jurisdiction to bring the application which the appellant sought. It was without legal foundation. This is a correct statement of the law. There was no strength in the appellant's case and it could not be a basis (if indeed such a ground existed) upon which to establish bias.
21. The appellant has brought the motion before the Court seeking to vacate a decision of the Supreme Court. He wishes to have the judgment and order of the Supreme Court made on the 29th of June, 2007 set aside.
22. The basis for his submissions, on his Notice of Motion, is:-
"That all bias and prevarication be set aside by this Honourable Court in agreeing my application for judicial review first mooted October 2002."
The appellant also asks the Court to further take notice that he will rely on the following grounds:-
"(a) Clear perception of bias favouring legal fraternity and subjective too;
(b) In camera "inquisitorial" unjudicial proceedings;
(c) "Adversarial" strength in my extensive "books" was ignored;
(d) No finality in Irish divorce law; and
(e) That named lawyers misused court influence with judges involved having no track record in family jurisprudence, Supreme and High and Circuit and District (if you go back to 1989) Courts."
23. The appellant filed extensive papers in relation to his claim and was heard in oral submissions.
24. Lay Litigant
The appellant brought this application in person. The Court gave the appellant great latitude in the presentation of his case, both for his oral submissions and in his written submissions, as he is a lay litigant. The appellant was permitted to submit many documents. Also, the Court heard two hours of oral submissions presented by the appellant on his behalf. The Court has taken great care to ensure that the appellant had a reasonable opportunity to present his submissions. In the circumstances the Court has had a full opportunity to hear the appellant's case.
The roots of this application lie in family law proceedings in the Circuit Court. Family law litigation may be very stressful to parties. Clearly the appellant is unhappy with decisions made by a number of Circuit Courts on matters relating to his family, such as orders for protection, a barring order and the family property. He did, however, as he is entitled to do, appeal these orders to the High Court, where a full rehearing was held and decisions made on the appeals.
26. I have read carefully the papers filed by the appellant and considered carefully his oral submissions.
27. The appellant made oral submissions which ranged over many issues. He alleges bias of judges in all jurisdictions. He made reference to matters in the family law cases in the Circuit and High Courts. He referred to events "in the maelstrom of family law". He spoke of losing his house in litigation. He stated that he got nothing and paid everything. He made allegations that solicitors had had arranged a scorched earth policy. He referred to the voluminous correspondence. He objected to barring and protection orders being made without him being present. He stated that he had been an excellent husband, he made statements about his wife, he said he did not know where his wife and children live. He argued that the written judgments did not reflect what the judges said. For example, he alleged that Peart J. said there were arguable grounds but then wrote that there not arguable grounds. He revisited events in submissions which had clearly been upsetting, such as being arrested and charged. At times he spoke well of the judges, saying, for example, that Judge Abbott gave him everything, and that Judge McKenzie gave him a good hearing.
28. I have also considered carefully the documents and the additional documents filed by the appellant, including those filed after the Court hearing, as was permitted by the Court. It is clear from the papers that the appellant is alleging objective bias of judges, and alleging illegal acts of solicitors in family law proceedings in the Circuit, High and Supreme Court. He alleges that judicial bias and activities of legal representatives contrary to law existed from 1989 in the maelstrom of family law proceedings. He stressed the strength of his case.
29. The appellant referred to and relied on a letter from Mr Justice Finnegan, when he was President of the High Court, who wrote to the appellant in reply to a letter of 12th February, 2003.
The appellant states that Mr Justice Finnegan "kindly pointed out no appeal from High Court to Supreme Court when appeal from Circuit Court to High Court has taken place." In that letter Mr Justice Finnegan referred to the issue of judicial review:-
"Further where a Judge of the High Court makes a decision I have no power to interfere with the same or to review the same and the only remedy available is in the case of Judicial Review when the decision of the High Court can be appealed to the Supreme Court. In those circumstances I regret that I am unable to assist you in the circumstances which you outline."
This letter has been misinterpreted by the appellant. It does not advise the appellant that judicial review is open to him. It pointed out that if the case were one of judicial review that then an appeal could lie to the Supreme Court, but that an appeal did not lie to the Supreme Court from a High Court decision on an appeal from the Circuit Court.
30. The appellant made submissions about the proceedings before Mr Justice Spain. He also made submissions about the proceedings before Judge White, and the solicitors and counsel. He made allegations against staff of the Courts Service. He made allegations about property transfers arising out of the family law proceedings. He expressed concern about his pension.
He made allegations that court orders were falsified. He alleged lack of fair decisions in the courts and that this is the background of general and specific bias. He wrote lengthy submissions for this Court. For example:-
"I submitted "Grounding application for judicial review" to Ms McGuigan 3 Sept 2004. I already had a deep sense of misgiving about all Courts treatment of what was basically an indictment of themselves. Judges, Court Services, Legal Profession and began to explore the possibilities of both sec 40 of Civil Liability and Court Act 2004 and Commission of Investigation Act 2004 in effect the cost cutting time saving son of Tribunal for sins I perceive as committed by the father figure. This Hon Courts Judges have to read the 18 typed pages of pleadings submitted to J.M. White Counsel and Solicitor present during 4 days hearing to 21 Nov 2001 to understand and sympathise with my position at that point and to wonder how it worsened with bias overcoming strength of case from beginning to end."
The appellant referred to many appearances and issues before the Courts over the years. He constantly returned to assertions of bias and to the many occasions on which his suspicions were aroused.
31.1 This case was heard in open court, it was not heard in camera.
31.2 This was an ex parte application by the appellant. There was no one in court holding a watching brief for the respondents.
31.3 Papers were received from the appellant both before and after the Court hearing, with permission of the Court.
31.4 The appellant was granted two hours to make oral submissions on this motion. This was in excess of the time which would be allocated to a case where counsel acted for a party, the extra time was awarded to the appellant because he is a lay litigant. In fact, he exceeded this time, but the Court permitted him the extra time.
31.5 The first issue for the Court is whether it has jurisdiction in the circumstances, where the appellant seeks to vacate a final order and judgment of the Supreme Court.
31.6 The decisions of the Supreme Court are final and conclusive. This fundamental constitutional principle is to provide finality and certainty in the administration of justice. The finality of litigation is important in all courts, but especially so in the court of final appeal. The fundamental principle is that the order of the Supreme Court is final. However, in rare and exceptional cases a jurisdiction may arise. The appellant has a heavy burden to establish that such rare and exceptional circumstances exist as to give rise to this jurisdiction.
31.7 The Constitution expressly states that the decision of the Supreme Court shall in all cases be final and conclusive. In rare circumstances the Court has jurisdiction to vary a final order. This may arise (a) where there has been an accidental slip in the judgment; (b) where the judgment as drawn up does not correctly state what the Court intended and decided; (c) in separate proceedings for fraud; (d) in rare and exceptional cases to protect constitutional rights and/or justice.
31.8 The appellant has come before the Court submitting that such exceptional circumstances exist in his case that there should be an intervention in the final order of the Supreme Court made on the 29th June, 2007.
31.9 I have considered very carefully all the documentation furnished by the appellant, and his oral submissions. I understand that he is very unhappy with the way the litigation relating to his family proceeded in a variety of Circuit Courts and High Courts. He feels he has not had the strength of his case recognised by the Courts. While I understand his distress at his family break up, those decisions of the Circuit Court and the High Court are not in issue before this Court. This Court has no jurisdiction to review those decisions. The only judgment and order before this Court is the judgment of the 29th June, 2007, of the Supreme Court. That judgment has been set out earlier.
31.10 The appellant has made assertions about the Supreme Court judgment of 29th June, 2007. But mere assertions do not give rise to the jurisdiction he seeks to invoke. The appellant has not discharged any onus, let alone the heavy burden of establishing that such exceptional circumstances exist that this Court should exercise a jurisdiction to review a previous judgment of this Court. Therefore, in the circumstances of this case I am satisfied that no such jurisdiction arises. Consequently I would dismiss the application on the basis that no jurisdiction arises to review the judgment and order of the Supreme Court of the 29th June, 2007.
32. Even if the appellant had discharged the burden of proof, which he has not, and even if the Court had a jurisdiction to review the judgment of the 29th June, 2007, which it does not in the circumstances, there is no basis on which to vary the judgment of the Supreme Court of the 29th June, 2007.
33. The legal system gives a right to a hearing and a right to an appeal. In this case the initial hearings were in several Circuit Courts and appeals were heard by several High Courts. These High Court appeals were a full rehearing of each case. There is a right of access to the courts, and a right of appeal. The appellant has exercised both rights. But there has to be finality to litigation. That finality is achieved on the conclusion of an appeal, in this case in the High Court.
34. The right to judicial review is a right to apply to the High Court to review decisions of lower courts or tribunals or administrative decisions. The right to apply for judicial review does not apply to review an appeal heard by the High Court of a decision of the Circuit Court. This was clearly stated by the High Court, by Peart J., on the 6th February, 2006 and it was affirmed by the Supreme Court on the 29th June, 2007.
35. Even if the jurisdiction arose, which I am satisfied it does not, the appellant has not shown any bias by the Court in its judgment of the 29th June, 2007. Consequently, I would dismiss the application on this basis also.
36. The issue of objective bias was argued in submissions before the Court and considered. The test is whether an ordinary reasonable member of the public would have a reasonable apprehension that the appellant would not have a fair hearing by an impartial judge. While the appellant has made lengthy submissions on his application for judicial review, and many assertions, he has failed to establish any objective bias.
37. At the root of the application is the appellant's misunderstanding of court proceedings and his disappointment with decisions in family law matters in Circuit and High Courts. His assertions of objective bias are only that, assertions. His belief in the strength of his case does not establish any bias by the Court. He has no right under the Constitution or the law to have the previous final decision of the Supreme Court reviewed. The litigation must conclude.
The jurisdiction to review a previous decision of the Supreme Court arises from its inherent jurisdiction to do justice.
38.1 There are occasions when it is manifestly clear that the Supreme Court does not have jurisdiction to exercise this exceptional jurisdiction. For example, the Supreme Court does not have jurisdiction to hear an appeal from the High Court where the High Court decision was on an appeal from the Circuit Court. As Murray C.J. pointed out in P. Clohessy v. P. Clohessy Supreme Court 31st July, 2008:-
"… this Court can only deal with it if it has jurisdiction and it cannot under any circumstances, no more than any other Court, deal with a matter for which it does not have jurisdiction.
… [this Court] does not have jurisdiction to entertain appeals from the High Court where the decision of the High Court is on an appeal from the Circuit Court. That has been the clear and stated law for a very long time."
Where it is clear that the claim is manifestly ill-founded and the Supreme Court has no jurisdiction to hear an application, the matter can be dealt with administratively in the office of the Supreme Court.
38.2 If on the papers an applicant fails to disclose any objective foundation for the exercise of the exceptional jurisdiction of the Supreme Court to review its decision, and the claim appears to be manifestly ill-founded, then the Supreme Court may make a ruling that the application is manifestly ill-founded without the necessity of holding an oral hearing.
39. In this case the appellant was granted an oral hearing. He failed to disclose any objective basis for the exercise of the exceptional jurisdiction on the papers filed and the claim appeared to be manifestly ill-founded. However, he was granted an oral hearing, and written and oral submissions were presented and considered. Having considered the documents filed and the written and oral submissions I am satisfied that the appellant's claim is manifestly ill-founded and I would dismiss the application.
For the reasons given I would dismiss the appellant's motions.