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Cite as: [2001] 2 ILRM 395, [2000] IESC 18, [2000] 3 IR 431

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Buckley v. Kirby [2000] IESC 18; [2000] 3 IR 431; [2001] 2 ILRM 395 (18th July, 2000)

THE SUPREME COURT

Murphy J. 23/00

McGuinness J.

Geoghegan J.

Between:

MICHAEL BUCKLEY

Applicant

and

JUDGE BRIAN KIRBY AND THE DIRECTOR OF PUBLIC

PROSECUTIONS

Respondents

REASONS for the decision of the Court delivered the 18th day of

July, 2000 by Mr. Justice Geoghegan.

1. This was an appeal against the refusal of leave to bring judicial review proceedings by the High Court (O Caoimh J.) in an order of the 6th December, 1999. This court recently heard the appeal and affirmed the order of the High Court but the court indicated that it would give its reasons on a later date. The court decided to do this as the case provides a useful opportunity to reaffirm the limits and parameters of judicial review.

2. By a note of ruling dated the 6th December, 1999 O Caoimh J. gave his reasons for refusing leave and I think it important to refer to these as the ruling of the learned High Court judge correctly sets out the legal principles in every respect. The judge took as his starting point the decision of this court in G v. D.P.P . [1994] 1 IR 374 and he went on to consider in the light of that case whether (a) an arguable case had been made out, (b) whether the Applicant had moved promptly and (c) whether there existed a more appropriate remedy.

3. The Applicant had been convicted in the District Court for the larceny of 31 ladies blouses. At the close of the prosecution case the solicitor for the Applicant applied to the judge who is the first-named Respondent for a dismissal of the charge on the grounds that the case had not been proved. The judge refused the application and went on to convict the Applicant.

4. There is nothing in the evidence to suggest that the judge abused his jurisdiction or was not acting within jurisdiction. In those circumstances, if the Applicant was aggrieved at the conviction which he was, quite clearly the proper remedy was an appeal to the Circuit Court. He in fact brought an appeal which has not yet been heard but went the route of judicial review also. The question of alternative remedies of appeal and judicial review has always presented problems. Four quite separate situations can arise.

(1) The Applicant both appeals to the Circuit Court and brings judicial

review proceedings and at the stage of the judicial review the appeal has

been fully or partly heard,

(2) The Applicant has brought an appeal and moved for judicial review in

circumstances where either remedy would have been equally appropriate

but where at the stage of the judicial review the appeal is still pending.

(3) The Applicant has both appealed and brought judicial review

proceedings in circumstances where at the time of the judicial review

hearing the appeal is still pending but where in all the circumstances

appeal, rather than judicial review is clearly the more appropriate

remedy.

(4) The Applicant has not brought an appeal at all but has gone the route of

judicial review in circumstances where an appeal is much the more

appropriate remedy though it would be open to a court to grant leave for

judicial review.

5. The first of these situations is clearly covered by the decision of this

court in The State (Roche) v. Delap [1980] IR 170. In that case the appeal had

already been opened before the Circuit Court judge but he adjourned it for the

purposes of a certiorari application. Henchy J. who delivered the judgment of

the Supreme Court held that undoubtedly in the ordinary way the remedy of

certiorari would have been available because the order was bad on its face. But he went on to observe the following:-

"However, it does not follow from this conclusion that certiorari should have issued. The prosecutor elected to appeal to the Circuit Court. There he allowed the appeal to be opened and did not contend that his conviction (as distinct from the sentence) was other than correct. While that appeal was pending, it was not open to him to apply for certiorari; see R (Miller) v. Justices of Monaghan [1906] 40 ILTR 51 which shows that he should have elected either for appeal or for certiorari. It was not within the competence of the High Court to intervene by certiorari to quash a conviction and sentence when an appeal had not alone been taken to the Circuit Court but that appeal was actually in the process of being heard in that court."

6. It is clear that the basis of Henchy J.'s. reasoning was that the defect in the order could have been corrected by the Circuit Court judge on the appeal and that as the appeal had already opened, certiorari ought not to be granted.

7. In this case the appeal has not yet commenced and therefore it does not fall within the first category of situations which I have listed. Where the second situation exists in that an appeal is pending but not yet heard, and but for that fact, judicial review would quite clearly be an appropriate remedy, the High Court, on an application for leave, is not bound to refuse leave merely because an appeal is pending. I would adopt the view of Barron J. expressed in McGoldrick v. An Bord Pleanala [1997] 1 IR 497 at 509.

"The real question to be determined where an appeal lies is the relative merits of an appeal as against granting relief by way of judicial review. It is not just a question of whether an alternative remedy exists or whether the applicant has taken steps to pursue such remedy. The true question is which is the more appropriate remedy considered in the context of common sense, the ability to deal with the questions raised and the principles of fairness; provided, of course, that the applicant has not gone too far down one road to be estopped from changing his or her mind. Analysis of the authorities referred to shows that this is in effect the real consideration."

8. But this is not a case where either remedy would have been equally appropriate. Judicial review in this case would appear to be singularly inappropriate as compared with an appeal and it is extremely doubtful whether in the event of leave being granted, it would ultimately be held that judicial review lay at all. It has long been established that certiorari will not be granted merely on the grounds of an absence of evidence to support a finding. In the well known case of R (Martin) v. Mahoney [1910] 2 IR 695 Lord O'Brien C.J. said the following:-

"To grant certiorari merely on the ground of want of jurisdiction, because there was no evidence to warrant a conviction, confounds, as I have said, want of jurisdiction with error in the exercise of it. The contention that mere want of evidence to authorise a conviction creates a cesser of jurisdiction, involves, in my opinion, the unsustainable proposition that a magistrate has, in the case I put, jurisdiction only to go right; and that, though he had jurisdiction to enter upon an inquiry, mere miscarriage in drawing an unwarrantable conclusion from the evidence, such as it was, makes the magistrate act without and in excess of jurisdiction."

9. That passage is cited in Mr. Conleth Bradley's new book on judicial review at p. 719 as still being the authority for the proposition set out. It has recently been cited with approval in two judgments of this Court one delivered by Keane J.(as he then was) in Killeen v. D.P.P. [1998] 1 ILRM 1 and the other by the same judge as Chief Justice in D.P.P. v. Judge Kelleher unreported judgment 24th May, 2000. It is therefore wrong to grant leave for judicial review merely on the grounds that there was a lack of evidence to support the judge's decision. The proper remedy is appeal. This was clearly the view of O Caoimh J. and I agree with it.

10. Although it does not directly arise in this case, I think that I should deal with the fourth of the situations listed above. In a case where an appeal would clearly be the more appropriate remedy, an applicant ought not necessarily be granted leave to bring judicial review proceedings merely because he has not in fact appealed. If he ought to have appealed, the Court in its discretion may refuse leave.

11. Returning to the case in hand, I do not intend to comment on the time point as O Caoimh J. quite rightly did not base his decision on it. Rather he took the view that the remedy was not appropriate having regard to G v. D.P.P. cited above. I think it useful briefly to refer to that case. Finlay C.J. in his leading judgment set out in a broad way the conditions which had to be complied with to justify judicial review. For the purposes of this case it is only necessary for me to refer to the last of them.

"That the only effective remedy, on the facts established by the Applicant, which the Applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure."

12. The next few words in the judgment however are of considerable importance. The former Chief Justice went on to say as follows:-

"These conditions or proofs are not intended to be exclusive and the court has a general discretion, since judicial review in many instances is an entirely discretionary remedy which may well include, amongst other things, consideration of whether the matter concerned is one of importance or of triviality and also as to whether the applicant has shown good faith in the making of an ex parte application."

13. It would seem to follow from that last passage that it is within the discretion of the court granting leave to refuse leave where the point raised is a trivial one and the alleged defect in procedure if unremedied results in no substantial injustice or where perhaps it should more appropriately be dealt with by a private law rather than a public law remedy. It cannot be said that the point raised in this case is trivial but equally it cannot be said that "the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure." Since this is a case of an alleged incorrect assessment of the evidence or lack of it, an appeal is quite obviously the appropriate remedy. That is why this appeal had to be dismissed.