Supreme Court of Ireland Decisions

1. This is an application by the above named MB (to whom I shall refer as the “husband”) to enlarge the time for appealing the judgment and order given and made herein by Mr Justice O’Caoimh at Tralee on the 21st day of July, 2000. The order aforesaid was made by the High Court on an appeal from the judgment and order dated the 9th day of March, 2000, given and made by the Circuit Court Judge of the Circuit Court in the County of Kerry.

2. Counsel for the above named NB (to whom I shall refer as “the wife”) contends that the statutory provision aforesaid provides an absolute bar to any appeal to this Court from the decision given by Mr Justice O’Caoimh on the appeal to him from the Circuit Court. Accordingly, it is argued, that this Court having no jurisdiction to hear the appeal, has no power to grant an enlargement of time for serving a notice in that behalf.

3. The husband was not legally represented before this Court. Understandably he was not familiar with the statutory provisions referred to above. Less still would he be expected to know of the decisions of this Court in Eamon Andrews Productions Ltd .v. Gaiety Theatre Enterprises Ltd [1973] IR 295; Kinahan .v. Baila (Unreported, Supreme Court, 18th July, 1985); WJ Prendergast & Son Ltd .v. Carlow County Council [1990] 2 IR 482; Keegan .v. Skelly (Unreported, Supreme Court, 7th June, 1991) and P .v. P (Unreported, Supreme Court, 31st July, 2001) which, among others, confirm that the decision of the High Court hearing an appeal from the Circuit Court in a civil matter is final and conclusive and no appeal lies from it to this Court.

4. In his draft notice of appeal and in his argument to this Court the husband complained in general terms of the grave injustice which, as he saw it, had been inflicted upon him in these and related proceedings. More specifically, the husband argued that the right of the wife in respect of property of the husband was the subject matter of proceedings entitled (among other things) “1981 Number 796Sp Ct 5 and In the Matter of the Guardianship of Infants Act 1964......In the Matter of the Married Woman Status Act 1957 and In the Matter of the Family Home (Maintenance of Spouses and Children) Act 1976 and In the Matter of the Family Home Protection Act, 1976”. By virtue of a series of orders made in those proceedings on the 27th day of April 1982, the 20th of November 1981 and, most particularly by the order of the then President of the High Court on the 7th of June 1985 (whereby he refused to appoint a receiver over certain properties of the husband), the husband contends that the property rights of the parties had been disposed of. Accordingly the husband contends that the application in the present proceedings to the Circuit Court was an abuse of legal process as the issues or some of the issues which it was sought to determine in those proceedings had already been disposed of in the High Court.

5. The case which the husband wishes to make by way of appeal to this Court was not made by him or on his behalf orally in either the Circuit Court or the High Court. He did not appear and was not represented in those courts and accordingly was unable to provide the Court with a note of the judgment made in either jurisdiction.

6. The husband has, however, provided this Court with a copy of the Civil Bill dated the 7th day of July, 1998, on which the circuit proceedings were based. As the title to that document and the title to these proceedings indicates this matter was instituted under the Family Law (Divorce) Act 1996 and in it the wife claimed a decree of divorce pursuant to s.5 (1) of that Act. In addition she claimed - as she was entitled to claim under the 1996 Act - wide-ranging relief as being ancillary to that remedy. As the remedy of divorce was not available before the Act of 1996 the orders made in the High Court in the earlier proceedings could not have precluded the making of the orders sought and granted under the 1996 Act by the judge of the Circuit Court or the judge of the High Court exercising that new jurisdiction. It has indeed been argued in other cases (see Kinahan .v. Baila above) that the statutory prohibition on an appeal against a judgment of the High Court exercising its appellate jurisdiction does not extend to ancillary matters. In Kinahan .v. Baila it was argued that an order of Mr Justice Lardner requiring an appellant before the High Court, appealing against an order of the Circuit Court made in a custody case to give security for the costs of the appeal did not fall within s.39 aforesaid. It was contended that the order of security was not a matter which had been subject to adjudication in the Circuit Court and accordingly did not fall within s.39. That argument was rejected. In his judgment Finlay CJ said:-

7. Accordingly the application to enlarge the time must be refused.