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Cite as: [2000] IESC 71

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Kearney v. Ireland [2000] IESC 71 (10th November, 2000)

THE SUPREME COURT

288/96

MURPHY J

McGUINNESS J

FENNELLY J

BETWEEN:

JOHN KEARNEY

PLAINTIFF APPELLANT

AND

IRELAND, THE ATTORNEY GENERAL AND THE GOVERNMENT

DEFENDANTS

JUDGMENT OF MR JUSTICE FRANCIS D MURPHY DELIVERED TIlE 10TH DAY OF NOVEMBER, 2000 [Nem. Diss.]

1. By order of the High Court made on the 22nd day of July, 1996, the proceedings herein were dismissed on the basis that the statement of claim disclosed no cause of action against the Defendants. By order dated the 30th day of June, 1 99’7, this Court affirmed the order of the High Court aforesaid.

2. By Notice of Motion herein dated the 6th day of November, 2000, Mr Kearney seeks an order setting aside the order of the Supreme Court dated the 30th day of June, 1997, on the grounds that it is unconstitutional. That application is grounded on an affidavit of Mr Kearney dated the 6th of November, 2000.

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3. In his affidavit Mr Kearney sets out a history of the allegations made by him against the State or State Agencies which he says brought down his “economic viability and the economic independence” of his household.

4. He does not allege - less still adduce any evidence - to suggest any abuse by this Court of its powers. The only reference to the Court in Mr Kearney’s affidavit is at paragraph 8 thereof where he says:-

‘That the Supreme Court order of Monday, 30th of June, 1997 is unconstitutional because it is (being) used by the State Authorities as an excuse for denying me my rights and entitlements and the rights and entitlements of my family and inflict further damage. That is in conflict with Article 40 Section 3.1 and 3.2 of the Constitution and with the protocol of the European convention for the Protection of Human Rights and Fundamental Freedoms that the government of this county has signed.”

5. Counsel for the Respondents drew attention to Article 34 (4)(6) of the Constitution which provides as follows:-

“The decision of the Supreme Court shall in all cases be final and conclusive.”

6. Mr Collins BL, for the Respondents also drew attention to the recent decisions of this Court in Greendale Developments Ltd (unreported: 9th December, 1999), Bula Ltd & Ors . v. Tara Mines Ltd & Ors (unreported, delivered 30th June, 2000) and Rooney .v. Minister for Agriculture (unreported, delivered the 23rd day of October, 2000). Those decisions recognise

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the possibility that this Court might in special circumstances set aside an order made by it. As pointed out in those cases the circumstances in which this Court might, notwithstanding the provisions of Article 34 (4)(6) aforesaid, set aside its own judgment can only be exceptional to a high degree and, as my colleague Mrs Justice McGuinness pointed out in the Bula Case: “a very heavy onus lies on the applicants to establish that such exceptional circumstances do exist.”

7. In the present case there is nothing in the affidavit of Mr Kearney or indeed in the circumstances of the case to suggest, less still establish that such circumstances exist. Accordingly I am satisfied that this Court has no option but to dismiss the application.