THE SUPREME COURT
IRELAND THE ATTORNEY GENERAL
THE REFERENDUM RETURNING OFFICER
AND THE REFERENDUM COMMISSION
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court does not grant leave to the applicant to appeal to this Court from the Court of Appeal.
1. This determination relates to an application by Gerry Walshe, the applicant, referred to as “the applicant”, who seeks leave to appeal to this Court from a judgment of the Court of Appeal delivered on the 30th July, 2015, and from the order which was perfected on the 31st July, 2015. The Court of Appeal dismissed his appeal from the refusal of the High Court to grant leave to present a referendum petition.
1. This Court is given jurisdiction to consider such an application by Article 34.5.3º of the Constitution.
2. Article 34.5.3° provides as follows:-
4. On the 30th July, 2015, the Court of Appeal (Ryan P.) delivered a judgment in which it dismissed the appeal of the applicant from the decision of the High Court (Kearns P.), delivered on the 5th June, 2015, which refused to grant leave to bring a referendum petition in relation to the Referendum on the Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015, held on the 22nd May, 2015.
“The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the Court of Appeal, if the Supreme Court is satisfied that:
(i) the decision involves a matter of general public importance, or
(ii) in the interests of justice it is necessary that there be an appeal to the Supreme Court.”
5. The applicant seeks leave to appeal against the entire decision of the Court of Appeal. The applicant stated that the trial Court disregarded the significance of facts presented by the applicant, regarding the misuse of State organs and resources to promote a “Yes” campaign in respect of the marriage referendum of the 22nd May, 2015, and failed to consider the material information and related obstructions and hindrance caused to the said referendum process.
6. The applicant advanced the following reasons as to why this Court should grant leave to appeal:-
7. If leave is granted, and an appeal is successful, the applicant seeks the following orders:-
(i) That the applicant’s case is of national public importance, as it relates to a challenge on the validity of the 22nd of May 2015 marriage referendum and the constitutionality of the referendum process, which may be lawfully challenged under the Referendum Act 1994, 43, as highlighted inter alia, by an obstruction or interference with the referendum process.
(ii) That the respondents use of state organs and recourses (sic) to promote a particular outcome in relation to the 22nd of May 2015 marriage referendum was unconstitutional, as endorsed in McCrystal and McKenna v. An Taoiseach, wherein it states “The people by virtue of the democratic nature of the state enshrined in the constitution, are entitled to be permited to reach their decision free from unauthorised interference by any of the organs of the state, that the people, have created by the enactment of the constitution.”
(iii) That the trial judges erred by restricting the applicant’s submissions to one hour and denied the applicant due process and a fair and proper hearing, which in turn contributed to the misinterpretation of vital information relating to the applicant’s submissions.
(iv) That the president erred in law by disregarding the significance of the misuse of state organs and resources, such as the GRA’s call for a yes vote in promoting the said marriage referendum, representing a primary non political organ of the state.
(v) That the president erred in law by disregarding the significance of the acknowledgement by council (sic)for the respondents, in relation to the logo for the charity “Marriage Equality Ltd.” Printed on An Post’s stamp and having been a misuse of state organs and resources, endorses the need for a full disclosure of all state resources.
(vi) That the president erred in law by not allowing the applicant discovery and disregarding the significance of the acknowledgement by council (sic) for the respondents as referred to in transcript page 147 that the respondents may have (unconstitutionally) used state funds, in particular state funds in relation to posters etc., in an effort to sway public opinion in the promotion of a yes campaign.
(vii) That the use of Irish charities and outside influences such as funding by Chuck Feeney, to promote a yes campaign has compromised the impartiality and democratic process of the 22nd of May 2015 marriage referendum and as such, said actions are unconstitutional.
(viii) That due to a lack of an impact study in relation to the 22nd of May 2015 marriage referendum, vital information was withheld from the general public and as such, the said electorate where (sic) not properly informed regarding the said referendum and as such where (sic) not in a position to make an informed decision.
(ix) That the wording of the 22nd of May 2015 marriage referendum was misleading and confusing as it suggested inequality in marriage prior to the 22nd of May marriage referendum between a man and a woman and as such the electorate where (sic) asked to vote, Yes for equality or No for inequality.
(x) That the repeal of the Electorate 2013 Act, requiring the respondents to provide the voting public with a copy of the proposed amendment bill, prior to voting is unconstitutional, as it discriminates against that of the elderly non familiar with the use of modern technology and I say the electorate have a constitutional right to view and inspect any proposed amendment bill, prior to voting in a referendum.
(xi) That due to the apparent bias and/or conflict of interest regarding the applicant’s case regarding a member of the trial judge’s involvement in the Constitutional Review Group and/or the fact that all three trial judges where (sic) nominated by council (sic) for the respondents, while formerly the Minister for Justice and Equality, the applicant was denied a fair and proper hearing.
(xii) That due to the serious risk of retaliation and/or intimidation in relation to the 22nd of May 2015 marriage referendum, identification markings on ballot papers and combined use of technology, has compromised the secrecy of the ballot papers and has caused uncertainty among voters, which has materially affected the referendum process.
(xiii) That the judge erred in law by awarding costs against the applicant, regarding a matter of national public interest, wherein should the applicant be successful in his case, no such costs would be awarded.”
8. The applicant claims that the Electoral Act 2013, which repealed the need to provide the public with a copy of the proposed Amendment Referendum Bill, is unconstitutional.
“(i) An order clarifying the constitutionality regarding the law on awarding costs against the applicant should his application fail, in a case taken on behalf of the people and the inequality in law wherein the applicant shall not be awarded equivalent costs, should the applicant’s application be successful as a lay litigant.
(ii) An order granting a stay on the signing of the certificate verifying the 22nd of May 2015 Marriage Referendum, pending the completion of the applicant’s appeal process.
(iii) An order granting the applicant leave to petition against the 22nd May, 2015 Marriage Referendum.”
9. The applicant is not seeking that this Court depart from one of its own decisions.
10. The respondents in this application, Ireland, the Attorney General and the Referendum Returning Officer, are referred to collectively as “the respondents”. The respondents opposed the application for leave to appeal.
11. The respondents opposed the application for leave to appeal on the following grounds:-
“(i) The [applicant’s] application for leave to appeal the decision of the Court of Appeal should be refused. The issues raised by the [applicant] involve no matters of general public importance. Furthermore, it would not be in the interest of justice – and would, in fact, be contrary to the public interest identified in Jordan v Minister for Children and Youth Affairs  IESC 33 in limiting uncertainty over the result of a constitutional referendum – for there to be a further appeal to the Supreme Court.
(ii) There is no ambiguity or uncertainty in the law such as might warrant the granting of leave to appeal. The legal principles applicable to referenda, the expenditure of monies from the Central Fund in respect of such referenda, and the bringing of a referendum petition are clear and have been the subject of recent decisions in this Honourable Court (McCrystal v Minister for Children and Youth Affairs  IESC 53; Jordan v Minister for Children and Youth Affairs  IESC 33).
(iii) Furthermore, as point 2 of the [applicant’s] reasons for leave confirms, the [applicant’s] primary claim does not raise any novel issues of law but seeks only to have the principles established in McKenna v An Taoiseach (No 2)  2 IR 10 and McCrystal v Minister for Children and Youth Affairs  IESC 53 applied to the facts as he alleges them to be (which allegations were rejected by both the High Court and Court of Appeal). As such, his application for leave to appeal is primarily concerned with the correction of alleged errors of fact. This is a form of appeal which raises no maters of general public importance and which should not generally fall within the remit of a court of ultimate appeal such as this Honourable Court.
(iv) Further, or in the alternative, the [applicant’s] application for leave should be refused as lacking any factual or evidential basis. The [applicant’s] claims rely on unsubstantiated assertions which are offered without any, or any adequate, evidence. The only evidence offered in the High Court in support of the allegation that the Respondents engaged in unlawful expenditure was photographs of a small number of posters in the Appellant’s local area. The case was made in the Court of Appeal on the basis of the same photographs, the bare assertion that the Respondents might have engaged in unlawful expenditure, and a number of media reports about expenditure by non-State bodies or charitable organisations (which Ryan P. acknowledged to be “materials which would not be admissible in evidence in court” (page 181 of the transcript)). The Appellant’s claims of information being withheld, voter confusion, a serious risk of retaliation and/or intimidation, or the secrecy of the ballot being compromised similarly lacked evidential support. Given that the onus of proof remains at all times on the petitioner, the Appellant’s failure to adduce any remotely adequate evidence in support of his claim justifies a refusal of his application for leave to appeal.
(v) The [applicant’s] claims in respect of the actions of such as the Garda Representative Association or Mr. Chuck Feeney are unsustainable as a matter of fact and of law. The claim is based on a misunderstanding of the relationship between these bodies and the State; and of the principles identified in McKenna v An Taoiseach (No 2)  2 IR 10 and McCrystal v Minister for Children and Youth Affairs  IESC 53.
(vi) Further, or more generally, the [applicant] failed to adduce prima facie evidence of a matter referred to in s. 43 of the Act of 1994; and failed to establish that any such matter may have substantially produced an effect on the result of the referendum process as a whole (Jordan v Minister for Children and Youth Affairs  IESC 33).
(vii) The [applicant] is not entitled to put forward new allegations which were not advanced before the High Court or Court of Appeal. The claim at point 11 of the reasons for leave to appeal was not previously raised and cannot be raised at this juncture.
(viii) The [applicant’s] claims regarding case management (reasons 3 and 6) and costs (reason 13) cannot be regarded as matters of general public importance. These are part of the necessary exercise of discretion by the High Court or Court of Appeal in the administration of justice (Dowling v. Minister for Finance  IESCDET 13). The [applicant] has identified no exceptional circumstances which could warrant a grant of leave to appeal on this ground.
(ix) No matters of general public importance arise in circumstances where the application for leave is moot. Following the lifting of a stay by the Court of Appeal, the Master of the High Court issued written notification to the Referendum Returning Officer pursuant to section 41 of the Referendum Act 1994, as amended, such that the provisional referendum certificate became final and incapable of being questioned. The Thirty Fourth Amendment of the Constitution (Marriage Equality) Act 2015 was subsequently signed by the President.”
12. This is an application for leave to appeal from the judgment, delivered ex tempore, by the Court of Appeal on the 30th July, 2015. That decision was an appeal from the judgment of the High Court (Kearns P.), delivered ex tempore, on the 5th June, 2015. Both of the above Courts dealt with the application as a matter of urgency, as does this Court.
13. The relevant law has been re-stated by this Court in McCrystal v. Minister for Children and Youth Affairs  IESC 53 and Jordan v. Minister for Children and Youth Affairs  IESC 33.
14. The applicant has sought that these principles be applied to the facts which he has alleged in the High Court and in the Court of Appeal. Thus, the application is largely concerned with the correction of errors of fact. This type of appeal would generally not fall within the jurisdiction of this Court.
15. The Court notes the inadequacy of the evidence presented before the High Court, and thus also before the Court of Appeal.
16. While the passage of a referendum proposal is a matter of considerable importance, the Court is satisfied that the decision of the Court of Appeal to dismiss the appeal from the refusal of the High Court to grant leave to issue a referendum petition does not involve any matter of general public importance.
17. The decision of the Court of Appeal was the application of the principles of law set out in McCrystal v. Minister for Children and Youth Affairs  IESC 53 and Jordan v. Minister for Children and Youth Affairs  IESC 33.
18. There is no ambiguity or uncertainty in the law and no reason to question the application of those principles to the facts of this case.
19. There is no substance to the points raised by the applicant.
20. Further, the Court is satisfied that it would not be necessary in the interests of justice that there be an appeal to the Supreme Court.
21. The Court is satisfied that the constitutional threshold for leave to appeal to this Court has not been met.
22. The Court has borne in mind the fact that the applicant is a lay litigant.
23. The chronological sequence leading up to this application is as follows:-
24. The applicant brought his case questioning the validity of the provisional referendum certificate in the High Court and in the Court of Appeal. However, his application has now been overtaken by events. The applicant has the statutory right to question the validity of a provisional referendum certificate. As that provisional referendum certificate has become final, the applicant has no further right under statute. While the Court has jurisdiction to consider the application, the situation is clearly moot because there is no longer a provisional certificate.
(i) The decision of the High Court was handed down on the 5th June, 2015.
(ii) The decision of the Court of Appeal was handed down on the 30th July, 2015. In that judgment the President lifted the stay that had been imposed by the Court of Appeal on the Certificate of the Referendum result.
(iii) The order of the Court of Appeal was perfected on the 31st July, 2015.
(iv) There was no application for a stay in the Court of Appeal by the applicant pending an appeal to the Supreme Court.
(v) Under the rules of the Superior Courts the applicant had 28 days to file his application for leave to appeal in the office of the Supreme Court; see O. 58, r. 16(1).
(vi) The applicant filed his application for leave to appeal in the Office of the Supreme Court on the 27th August, 2015, and served it on the respondents on the 27th August, 2015.
(vii) The respondents filed their response on the 2nd September, 2015.
(viii) However, the Master of the High Court issued written notification to the Referendum Returning Officer pursuant to s. 41 of the Referendum Act 1994, as amended.
(ix) The Referendum Returning officer received written notification from the Master of the High Court on Monday, 24th August, 2015, that no leave was granted by the High Court to present a referendum petition in respect of the Referendum on the Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015.
(x) On the 28th August, 2015, the Referendum Returning Officer endorsed on the certificate that it had become final.
(xi) On the 29th August, 2015, the Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill, 2015 was signed by the President of Ireland.
(xii) On the 1st September, 2015, the official Notice of Promulgation was given in Iris Oifigiúil.
25. There is no automatic stay on an order of a Court. The Court of Appeal lifted the stay that it had imposed on the Certificate of the Referendum Result. There was no application by the applicant to the Court of Appeal for a stay after it had delivered its judgment. Consequently, no stay was in existence after the decision of the Court of Appeal.
26. As this is an application by a lay litigant the Court considered the merits of his application for leave to appeal to this Court. It may well be that if he had been legally represented that his counsel would have applied for a stay at the conclusion of the judgment of the Court of Appeal. Such an application might or might not have been successful.
27. This highlights the necessity for practitioners and members of the public who seek leave to appeal to this Court to address the question of a stay in the Court below.
28. Also relevant is the respect due to the legal process by other organs of State. In the event, in this case there was no adverse consequence. However, in another situation very serious constitutional consequences might have occurred had this Court considered it appropriate to grant leave on any grounds when the certificate had become final and the Constitution amended.
29. In all the circumstances, the Court does not grant leave to the applicant to appeal to this Court from the Court of Appeal
And it is hereby so ordered accordingly.