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Determination

Title:
Tracey -v- Ireland and Ors
Neutral Citation:
[2018] IESCDET 123
Supreme Court Record Number:
S:AP:IE:2018:000123
Court of Appeal Record Number:
A:AP:IE:2018:000280
High Court Record Number:
2018 No 61 IA
Date of Determination:
08/16/2018
Composition of Court:
Dunne J., Charleton J., O'Malley Iseult J.
Status:
Approved

___________________________________________________________________________


Supporting Documents:
123.18 Rspnts Notice .pdf123.18 Rspnts Notice .pdf123.18 Rspnts Notice.pdf123.18 Rspnts Notice.pdf123.18 AFL .pdf123.18 AFL .pdf



THE SUPREME COURT
DETERMINATION
BETWEEN
CIARAN TRACEY
INTENDED PETITIONER
AND

IRELAND AND THE ATTORNEY GENERAL

AND THE REFERENDUM RETURNING OFFICER

RESPONDENTS
AND
DIARMUID MAC CONVILLE
APPLICANT/APPELLANT

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 /Appellant (Diarmuid MacConville) to appeal to this Court from the judgment and Order of the Court of Appeal
REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED
COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 31st July, 2018

DATE OF ORDER: 31st July, 2018

DATE OF PERFECTION OF ORDER: 1st August, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 7th August, 2018 AND WAS IN TIME.
General considerations


    1. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the Thirty Third Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions (2017) IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions (2017) IESCDET 115. Accordingly, it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.

The application

    2. The notices filed by the applicant and respondents are available on this website. The facts of the case are fully set out in the judgment of Irvine J. delivered on behalf of the Court of Appeal on the 31st July 2018 (see Ciaran Tracey v Ireland and the Attorney General and the Referendum Returning Officer [2018] IECA 266). In brief, the applicant seeks to challenge the decision of the Court of Appeal upholding the procedural and substantive rulings made by the President of the High Court, and the order for costs made against him in the Court of Appeal.

Decision

    3. Any decision of the People of Ireland to amend the Constitution by referendum is, by definition, a matter of general public importance. It does not follow, however, that every or any individual legal challenge to the validity of a referendum must necessarily be deemed to be of the same general public importance, so as to merit the grant of leave to appeal to this Court pursuant to the provisions of Article 34 of the Constitution. As the Court has pointed out in a number of determinations (see, in particular, PriceWaterhouseCooper v Quinn Insurance), the argument sought to be raised must in the first place be stateable. The points made by the applicant must be scrutinised in the light of this requirement.


    4. The applicant’s first contention is that Mr. Tracey’s application for leave to present a petition should not have been struck out because there was no motion before the court to withdraw it or to strike it out. It is alleged that the President of the High Court “led” Mr. Tracey to apply to withdraw his petition, where Mr. Tracey had not asked to withdraw it and where the most the President could properly have done would have been to grant leave to withdraw.

    5. This ground is entirely misconceived. There was no petition in being, merely an application for leave to present a petition. It is clear from the transcript that Mr. Tracey had put the respondents on notice of his intention to withdraw the application for leave on terms as to costs, and that his proposal had been agreed to. The correspondence was put before the President. There was no requirement, under the legislation, for leave to withdraw or for a formal motion by Mr. Tracey, and nothing to prevent the course of action desired by all of the parties to his application.

    6. The second argument relates to the ruling of the President that substitution was not possible after the proceedings had been struck out. The applicant says that he had attempted to make his application for substitution before that order was made. He had not succeeded in getting the Central Office to accept his papers and was not permitted by the President to address the Court until Mr. Tracey’s matter had been disposed of.

    7. He relies on s. 50 of the Referendum Act 1994 as providing for substitution and says that it does not set a time limit for the making of an application to that end. He also relies on O. 97 r. 14.2, providing for a period of five days within which to make an application to be substituted where an election petition has been struck out or abated or made null and void.

    8. Again, these arguments are misconceived. No doubt, if it had turned out that some mistake or injustice had unintentionally been brought about, the President could at that stage have vacated the oral order he had just made. However, the application sought to be made would have to have been one that was capable of being entertained by the Court.

    9. The fundamental problem in relation to the substantive issue is that the applicant’s argument as to the interpretation of s. 50 of the Referendum Act 1994 is simply wrong, for the reasons set out in the judgment of the Court of Appeal. There is a clear distinction to be made between an application for leave to present a petition that is pending before the court, and on which no determination has been made as to the merits, and a petition for which leave has been granted. In the latter case, the court has determined that there is prima facie evidence of one of the matters listed in the Act as potentially having a material effect on the outcome of the referendum. The threshold for leave is, contrary to the views of the applicant, high (see the decision of this Court in Jordan v Minister for Children and Youth Affairs & ors., [2015] IESC 33). The decision to grant leave, therefore, is one that may be seen as raising a doubt as to the validity of the referendum process that, in the public interest, should be resolved. It is in that context that strict criteria apply to the withdrawal of a petition and provision is made for the unusual procedure for substitution of the petitioner. None of these considerations arise in respect of an undetermined application for leave that is withdrawn by the intended petitioner. The provisions in relation to the substitution procedure manifestly do not apply.

    10. In respect of the order for costs, the applicant argues that the leave process for a referendum petition is intended to be conducted on an ex parte rather than adversarial basis. He believes that his appeal to the Court of Appeal in respect of the right to be substituted should similarly have been dealt with on an ex parte basis and that he should not therefore be liable for the costs of the respondents in the appeal. That contention fails to recognise that while the original application to the court is ex parte, that is something that is in ease of an applicant faced with the relatively short time limit of seven days within which to make that application. However, the court undoubtedly has jurisdiction to direct that the appropriate parties be put on notice before the leave application is determined. In any event, the order directing that the respondents be put on notice was made while Mr. Tracey had carriage of his own application, and the applicant does not therefore have standing to contest its validity. It was the applicant’s own decision to appeal an order made in the context of what was, at that stage, an inter partes matter. The Court of Appeal was entirely correct to treat it as such. Consequently, an inter partes order having been appealed unsuccessfully, the decision of the Court of Appeal was made within jurisdiction and does not raise any issue of general public importance.

    11. The applicant submits that the requirement of leave to present a referendum petition is in itself unconstitutional. No such issue was argued in, or arises from the decisions of, either the High Court or the Court of Appeal.

    12. In the circumstances this application does not meet the constitutionally prescribed criteria. Leave to appeal to this Court will accordingly be refused.


AND IT IS HEREBY ORDERED ACCORDINGLY.



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