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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> McG. (G.) v. W. (D.) [2000] IESC 52 (31st March, 2000) URL: http://www.bailii.org/ie/cases/IESC/2000/52.html Cite as: [2000] IESC 52 |
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1. This
is an appeal by the Attorney General against the judgment and order of the High
Court (McGuinness J.) delivered on 18th June, 1999 and perfected on 24th June,
1999, whereby the High Court declined to join the Attorney General as a notice
party. The single issue on this appeal is whether the Attorney General may be
added as a notice party in circumstances where the High Court judgment has been
delivered, the order perfected and no appeal taken by any of the parties. The
issue is one of law.
2. This
case commenced as a petition of nullity of marriage. The basic facts were set
out by McGuinness J. in a judgment delivered on 14th January, 1999, where she
stated:
3. McGuinness
J. cited s.29(1) of the Family Law Act, 1995 and continued:
6. After
further analysis of the common law on the recognition of foreign divorces the
learned trial judge concluded that the court may develop the rules on
recognition, on the basis that the common law rules are judge-made law and may
be modified according to the current policy of the court. McGumnness J. then
extended the common law on the recognition of foreign divorces and applied this
new common law to the divorce in issue.
7. The
Attorney General did not learn of the case until after the judgment was
delivered. It was a family law case heard in camera. It was on the distribution
of the reserved judgment that the matter came to his notice. The Attorney
General then sought, by Notice of Motion dated 10th March, 1999, to be joined
as a notice party.
8. It
is clear that the Attorney General’s purpose, ifjoined, is to apply to
the Supreme Court to extend the time within which to appeal the decision of the
High Court and if that is successful then to appeal the judgment of the learned
trial judge to this court. The Attorney General indicated his concern as to the
state of the common law in relation to the recognition of foreign divorces and
as to the effect to be given to the judgment of the High Court. All the parties
to the action opposed his motion in the High Court, as they do in this court.
9. On
the motion of the Attorney General to be joined, by judgment delivered on 18th
June, 1999, the learned High Court judge held that the court had no
jurisdiction to alter the order made on 12th November, 1998 and refused the
relief sought in the motion. The Attorney General has appealed that judgment.
Thus the net issue on this appeal is one of law and is as to whether or not the
Attorney General may be joined.
10. Submissions
were made on behalf of the parties and the Attorney General. All the parties
opposed the application of the Attorney General. Mr. Eoghan Fitzsimons, S.C.,
on behalf of the Attorney General, referred to full written submissions, which
were considered by the Court. Counsel for the Attorney General submitted that
there was one point on this appeal. He argued that the order made under the
Family Law Act, 1995 without the presence of the Attorney General was not a
final order. It was not a final order regulating all the rights of the parties.
Therefore, it was an extreme situation where the court should exercise its
inherent jurisdiction.
11. Earlier
statutory provision required that the Attorney General be a party in somewhat
similar proceedings. There was a clear legislative policy. The position of the
Attorney General as a party to proceedings relating to the validity of
marriages was set out in Legitimacy Declaration (Ireland) Act, 1868, an Act to
enable persons to establish their legitimacy, the marriage of their parents and
others from whom they may be descended. Under the said Act the procedure
envisaged an application to the Court of Probate in Ireland praying for a
decree of legitimacy and or for a decree that the marriage of a father and
mother or grandfather and grandmother was a valid marriage. Section 1 of the
said Act of 1868 concluded with the words:
12. This
was a clear statutory position. It showed a legislative policy that the
Attorney General be a party to all such actions.
13. Under
current law in England and Wales declarations may be sought as to marital
status and legitimacy or legitimation under the Family Law Act, 1986. The
legislation includes provisions relating to the Attorney General. The court may
at any stage direct that papers be served on the Attorney General, and,
irrespective of any court motion or party application, the Attorney General may
intervene. This is provided for in s. 59 which states:
14. Whereas
under the previous law the Attorney General had to be brought into all cases
this is no longer the case. However, the effect of the declarations under Part
III of the said 1986 Act is stated clearly in s.58:
15. This
illustrates a clear legislative approach as to the
in
rem
nature
of the judgment. There is a similar approach in the common law of England and
Wales. Thus in
The
Ampthill Peerage
[1977] A.C. 547, 576 Lord Simon of Glaisdale stated:
17. A
declaration may be rescinded if obtained by fraud. This was explained by Lord
Wilberforce as “[t]here must be conscious and deliberate dishonesty, and
the declaration must be obtained by it” in
The
Ampthill Peerage
[1977] A.C. 547, 571.
18. The
Report on Restitution of Conjugal Rights, Jactitation of Marriage and Related
Matters, (LRC 6 - 1983) made recommendations. The Commission considered the
then law on declarations as to status would benefit from restatement in clear
terms in modern legislation. It was recommended that the proposed legislation
should enable a person to apply to the High Court for a decree declaring that
his or her marriage was or is a valid marriage. It was proposed that the
legislation would replace the provisions of the Legitimacy Declaration
(Ireland) Act 1868 to the extent that they related to the validity of the
marriage of the petitioner, but it would not affect the provisions of that act
relating to declarations as to the validity of the marriage of the parents of
the petitioner. It was recommended, at pages 24 and 25 of the said Report:
19. On
the matter of declarations as to marital status the relevant provisions of s.
29 of the Family Law Act, 1995 state:
20. The
said legislation enables the Attorney General to be a participant. Unlike the
legislation of 1868 the joining of the Attorney General is not mandatory.
Section 29(4) of the Family Law Act, 1995 states:
21. The
use of the word “may” in this section indicates that the court has
a choice, at any stage of the proceedings, by its own motion or on application
by a party, to give notice of the proceedings to the Attorney General or any
other person. In cases where it may be anticipated that a fundamental change in
or development of the law is to be argued it would be appropriate for a court
to give notice to the Attorney General. Under the legislation it is a matter of
notice to the Attorney General or other person.
22. However,
if the Attorney General applies to be a party to any proceedings he or she must
be added as a party. Section 29(5) states:
23. Thus,
in addition to the situation where the Attorney General is added as a party on
his application, a situation is envisaged where a court may request the
Attorney General to
24. After
delineating these choices as to whether or not the Attorney General be given
notice or be a party s.29 then describes the binding nature of a declaration
under this section in the so terms:
25. Thus
it appears that a declaration is binding on the parties to the proceedings and
on a person claiming through such party. However, in addition, a further effect
is set out in s.29(8) being:
26. In
view of the choices given to the parties (as to whether the Attorney General be
given notice or not) and to the Attorney General (as to whether he be a party
or not) these words are a matter of concern. It is clear from the legislation
that the parties have a choice as to whether to give notice to the Attorney
General or not. In this case they did not give notice to the Attorney General.
Such a declaration, in the absence of the Attorney General, is, on its face,
based on an Act presumed to be constitutional, binding on the parties.
27. The
court may of its own motion give notice to the Attorney General. This it did
not do; it appears that such a choice was not expressly considered. However,
the right to a
28. The
Attorney General also has a choice as to whether to participate. This he did
not exercise prior to or during the hearing of the action in the High Court. It
appears that he did not know of the case. There is no requirement in current
legislation, contrary to the position in previous legislation, to deliver a
copy of the proceedings to the Attorney General. These proceedings were held
in
camera
and
the Attorney General did not hear of the court order until after it was made.
29. It
is clear that the Family Law Act, 1995 envisaged a situation where the Attorney
General need not be informed of such proceedings. It is also clear that the
Attorney General having been given notice, may choose not to participate in the
proceedings. The legislation envisages that such proceedings shall be binding
on the parties. On its face it creates a binding order. There is no legislative
indication that it is an interlocutory order.
30. The
Family Law Act, 1995 is entitled to the presumption of constitutionality. The
meaning of the words “if the Attorney General is a party to the
proceedings, the declaration shall also be binding on the State” is not a
matter for resolution on this motion. It is sufficient to determine that the
legislation envisaged two types of orders, one of which has been made in this
case.
31. A
similar approach to the Attorney General’s role may be seen in the Status
of Children Act, 1987. Section 35 of the said Act provides for a declaration of
parentage. The
32. In
this case the court is required to consider the nature of the order of the High
Court, and to determine whether it is a final order. All parties to the
proceedings have argued that the order of 12th November, 1998 and judgment of
14th January, 1999 of the High Court are final and that consequently the High
Court and this court on appeal have no jurisdiction to add any party thereto.
33. There
is well established jurisprudence as to the lack of jurisdiction of a court
once a final order has been given in a case. A court may amend such order only
in very limited circumstances. This fundamental jurisdiction was described by
Finlay C.J. in
Belville
Holdings Ltd. v. Revenue Commissions
[1994] ILRM 29, 36-37 as follows:
34. Having
referred to the decision of the Court of Appeal in
In
re Swire
30 ChD 239, Romer J quoted from the judgments in that case as follows at p.678:
35. Lindley
LJ says: ‘If it is once made out that the order, whether passed and
entered or not, does not express the order actually made, the court has ample
jurisdiction to set that right, whether it arises from a clerical slip or
not.’
36. And
Bowen LJ says: “An order, as it seems to me, even when passed and
entered, may be amended by the courts so as to carry out the intention and
express the meaning of the court at the time when the order was made, provided
the amendment be made without injustice or on terms which preclude
injustice.”
37. I
am satisfied that these expressions of opinion validly represent what the true
common law principle is concerning this question. I would emphasise, however,
that it is only in special or unusual circumstances that an amendment of an
order passed and perfected, where the order is of a final nature, should be
38. The
court has jurisdiction to amend an order so as to carry out the intention and
express the meaning of the court:
The
People at the Suit of the Director of Public Prosecutions v. Sheedy
Court of Criminal Appeal, Denham J., 21st December, 1999, unreported.
39. In
a judgment of 18th June, 1999, applying the law as stated in Belville Holdings
and affirmed in
The
Attorney General (at the relation of the Society for the Protection of Unborn
Children (Ireland) Ltd.) v. Open Door Counselling Limited (No. 2)
[1994] 2 IR 333 at pages 338 to 340 inclusive, the learned trial judge refused
the Attorney General’s motion in the following words:
40. I
am satisfied that the leamed High Court judge was correct. Whilst the Family
Law Act, 1995 allows for the joining of the Attorney General as a party to the
proceedings it is not mandatory. The parties are given a choice as to whether
to give notice to the Attorney
41. General.
Indeed, the Attorney General is given a choice as to whether to join the
proceedings or not. Thus, it is clear that proceedings are contemplated without
the Attorney General.
42. Further,
it is envisaged that the proceedings be final. They are final as between the
parties. It is unnecessary to determine the exact meaning of s.29(8). There are
two types of orders envisaged in the legislation. In one, the type of order
here, the order is binding on the parties, and a final order. The second type
of order, where the Attorney General is a party, is also envisaged as a final
order.
43. The
Attorney General may be joined under the Act to ‘proceedings’. In
this case the proceedings are closed, the order and judgment given. There are
no proceedings in being. The proceedings have concluded. The final order has
been given. Thus, there are no extant proceedings to which to join the Attorney
General. This is not a situation where the case is on appeal to the Supreme
Court. This is not a case where proceedings are in being, pending a hearing on
appeal.
44. Further,
the order of the High Court was final. It was not an interlocutory order.
Applying the test described by Finlay C.J. in
Belville
Holdings Ltd. v. Revenue Commissioners
[1994] ILRM 29 none of the exceptions apply. It is only in special and unusual
circumstances that an amendment of an order passed and perfected, where the
order is a final order, may be made by the court. None of the exceptions
previously identified apply to this case.
45. The
inherent jurisdiction of the courts as expressed by Finlay C.J. in
Belville
Holdings v. Revenue Commissioners
[1994] ILRM 29 does not to trench on the principle of the finality of
litigation but rather ensures that the intent of the court in making an order
is met. In certain special and unusual circumstances such inherent jurisdiction
may be utilised in the interests of justice. The justice of this case for the
parties does not require it to be
46. In
addition, the Family Law Act, 1995 does not provide a legal basis for the
Attorney General’s motion. That said Act clearly envisages court orders,
to which the Attorney General is not a party, which are final. Consequently, I
am satisfied that the court does not have jurisdiction to reopen the
proceedings for the purpose of enabling the Attorney General to be joined so
that he may seek leave to extend time within which to appeal and, if
successful, argue against the decision of the High Court judge as to the common
law of the recognition of foreign divorces. The Attorney General may choose to
make such submissions in another case.
47. Further,
the Attorney General may consider examining the legislative framework under
which his position in such proceedings is determined at the moment. Perhaps any
change to the law may be addressed best by legislation rather than extending
the inherent jurisdiction of the court.
48. No
decision was sought or made on this motion, nor should any inference be drawn,
on the substantive issue, the recognition of foreign divorces.
50. By
order made herein on the 12th day of November, 1998 Mrs Justice McGuinness
declared that the Decree made in England on the 12th day of February, 1985 of
Dissolution of the marriage solemnised in Dublin on the 27th day of October,
1967 between the above named Petitioner and the above named Notice party was a
valid Decree and entitled to recognition in this jurisdiction. It was
accordingly ordered that an Application for a Decree that a marriage solemnised
in London on the 15th November, 1985 between the Petitioner and Respondent was
null and void be dismissed.
51. Because
investigations were pending and criminal proceedings threatened, the learned
trial Judge arranged that her order be made without delay but understandably
postponed until the 14th day of January, 1999 the delivery of her judgment on
an important issue which had arisen in the proceedings. That issue was whether
the Decree Absolute of divorce issued on the 12th of February, 1985 was
entitled to recognition in this country having regard to the fact that it was
based on the residence of the Notice Party in England for the appropriate
period rather than any domicile arising there.
52. Some
months after the order and judgment aforesaid were made and given the Attorney
General applied by notice of motion dated the 10th day of March, 1999 to be
joined as a Notice Party in these proceedings. That application was grounded
upon the affidavit of Gr~inne O’Mahony, Solicitor. In her affidavit Ms
O’Mahony explained that the Attorney General became aware of the above
proceedings about the 14th January, 1999 following publicity given in the
national media to the judgment of Mrs Justice McGuinness. Attention was also
drawn to the fact that the proceedings had been commenced by way of a nullity
petition and were only subsequently dealt with, by consent, as an application
for a declaration pursuant to s.29 of the Family Law Act,
1995.
The
affidavit also made clear that it was the intention of the Attorney General, if
made a party to these proceedings, to apply to the Supreme Court for an
extension of time for leave to appeal the order and judgment of the trial
Judge. By order dated the 18th day of June, 1999 Mrs Justice McGuinness refused
to join the Attorney General as a party to the proceedings for the reasons set
out in a judgment of the same date. It is from that order and judgment that the
Attorney General has appealed to this Court.
53. The
right asserted by the Attorney General to intervene in these proceedings
derives exclusively from s.29 of the Act of 1995. I would quote that section
and the next succeeding section which together constitute part IV of the Act
which is entitled
“Declarations
as to Marital Status”.
54. Whilst
it is clear from her judgment that the order made by Mrs Justice McGuinness on
the 12th November, 1998 was made pursuant to s.29(l)(d) aforesaid, that
particular section is not expressly invoked in the order.
55. The
potential involvement of the Attorney General in proceedings under s.29 of the
Act of 1995 is dealt with in subsection (4) and (5)
from
different aspects. Subsection (4) permits the Court either of its own motion or
on the application to it by a party to the proceedings to direct that notice of
the proceedings be given to the Attorney General. Subsection (5)
imposes
an obligation on the Court to add the Attorney General as a party to the
proceedings if the Attorney General makes an application in that behalf. The
same subsection imposes an obligation on the Attorney General to argue any
question arising in the proceedings and specified by the Court if so requested
by the Court and to do so whether or not the Attorney General has been added as
a party. Those subsections are crystal clear to that extent. They impose no
obligation either on the Court or on parties to give notice of proceedings under
s.29
aforesaid
to the Attorney General. Nor are there any circumstances in which the Attorney
General can be required by virtue of that section to be made a party.
56. These
provisions are similar to those contained in the Matrimonial Causes Acts,
1857-1873, which were repealed and replaced by the UK Supreme Court Judicature
(Consolidation) Act, 1925. It is clear from the 19th Century legislation -
which never applied in this jurisdiction -that the purpose of the legislation
was to enable the Attorney General to intervene through the medium of the
Queen’s Proctor primarily, or so it would seem, to avoid the danger of a
decree of divorce or nullity being granted as a result of collusion between the
parties. That legislative procedure was facilitated by the fact that the
relevant matrimonial orders were in the first instance decrees nisi and the
final order was not pronounced until the expiration of at least a further six
months. Our legislation of 1995 makes no provision for decrees
nisi.
57. There
is another curious provision in s.29. Subsection 8 provides that a declaration
made thereunder should be binding on the parties to the proceedings and any
person claiming through such a party but the subsection then goes on to say that
“if
the Attorney General is a party to the proceedings, the declaration shall also
be binding on the State”
.
58. Before
this Court some debate took place as to the nature and effect of a declaration
as to the matrimonial status of parties which was binding on them and persons
claiming through them but not binding on the State. It is a difficult concept.
The very nature of legal status is the public recognition which it enjoys (or
endures) whether that status arises from a contractual arrangement or an
accident of birth.
59. The
exemption of the State from the ambit of a declaratory order where the Attorney
General has not been invited and accepted the invitation to become a party to
the proceedings seems to reflect the provisions of
s.
1
of the Legitimacy Declaration (Ireland) Act, 31 Vic C 20. That Section deals
expressly with the extent to which orders under that Act were binding on the
Sovereign. Counsel for the Attorney General in his written and oral submissions
to the Court expressed concern as to the consequences which might result from
an order such as that made herein which is not binding on the State. He
envisaged difficulties in relation to the registration of particulars of
marriage and perhaps the acquisition of passports and other dealings with
agents of the State. I doubt myself that these problems could be the
consequence of the statutory exemption. However, the parties to the proceedings
declined to pursue the issue. There was no reason why they should do so. They
accept that the particular provisions of subsection 8 may or may not give rise
to difficulties in the future. They are content to deal with them if and when
they arise. It was and is their position that the order
61. It
may or may not be contended that the learned trial Judge was not entitled to
give that verbal direction and it may or may not be that the gardai would feel
free to ignore it. Similarly it may be, as all parties accept, that ambiguities
in the legislation may leave further problems to be resolved. However, these
residual problems do not affect the fundamental proposition that the order and
judgment of Mrs Justice McGuinness of the 12th November, 1998 and the 14th
January, 1999 were final and conclusive and disposed of the issue between the
parties to the proceedings before her. There is no basis on which she could
amend that order less still could she amend it in such a way as to join a party
for the acknowledged
62. Whilst
I appreciate the proper concern of the Attorney General in relation to orders
affecting the recognition of foreign divorces (or indeed domestic divorces) I
am satisfied that there is no basis in law in which he can seek an adjudication
by this Court in these proceedings on the matters which concern him.
63. I
would dismiss the appeal and affirm the judgment and order of Mrs Justice
McGuinness dated the 18th June, 1999.
64. This
is an appeal in which the Attorney General seeks to set aside the order ot High
Court refusing his application to bejoined as a notice party in the above
entitled proceedings. It was a somewhat unusual application, having been made
some four months after the order of the High Court in the substantive
proceedings. The appeal concerns only a question of law as to the jurisdiction
of the court to join the Attorney General at this stage to the proceedings
which were before the High Court.
65. The
background and chronology of events are to be found in the two judgments of Mrs
Justice McGuinness dated 14th January 1999 and 18th June 1999. The essentials
of those are as follows.
66. On
the 27th October 1967 the petitioner, Mr. McG. married the notice party Ms. C
(now A.R.) in Dublin. Both parties were domiciled and resided in Ireland at the
time.
67. On
the 11th April 1979 they entered into a deed of separation after the marriage
had broken down. On the 20th August 1984 the petitioner issued divorce
proceedings in England in respect of the foregoing marriage and a decree
absolute was granted by the English Court on 12th February 1985. The English
divorce was granted under English Law, on the basis that the notice party had
at least one years residence in that country. Neither the petitioner nor the
notice party claimed to have established domicile in England. (Subsequent to
the divorce the notice party married Mr R. in England).
68. On
the 25th November 1985 the petitioner, who was still domiciled and resident in
Ireland, married the respondent Ms. D. W at a registry office in London. Ms. D.
W was a British citizen domiciled in England. This marriage also broke down and
the parties separated on an agreed basis.
69. Subsequent
to all of the above the petitioner brought nullity proceedings in respect of
his 1985 marriage in London, before the High Court which were to follow, in the
words of the learned trial judge, “a somewhat unusual course”
70. The
citation having been issued on behalf of the petitioner on the 10th March 1998
it was served, together with the petition and affidavit on the respondent. The
answer filed by the respondent essentially admitted the facts set out in the
petition.
71. When
the proceedings came on for hearing before the learned High Court Judge,
counsel for the petitioner submitted that while the proceedings were in the
form of a nullity petition, the real concern of the petitioner was to ascertain
his true marital status according to the law of the State.
72. Apparently
all parties, that is to say the petitioner, the respondent and the notice
party, were in agreement that it would be preferable for the court to treat the
petition for a declaration of nullity as if it were an application pursuant to
section 29 (1) (d) or (e) of the Family Law Act 1995 in regard to the
recognition of the 1985 English divorce of the petitioner and the notice party.
73. From
that point on the nullity proceedings were abandoned, so to speak, and those
proceedings proceeded as if they were concerned with an application pursuant to
the relevant provisions of section 29 of the 1995 Act so as to determine
whether the 1985 English divorce
74. By
order dated the 12th November, 1998 the learned High Court Judge granted a
declaration that the decree of divorce granted by the English Court on 12th
February 1985 dissolving the marriage between the petitioner and the notice
party to be a valid decree and entitled to recognition in the State.
75. In
the interests of the parties and in order to bring certainty to their position
the learned High Court Judge decided the issues and made her order promptly
after the conclusion of the hearing and, because an important point of law was
involved, she reserved the giving of reasons for her decision to a later date.
On the 10th January 1999 she delivered her carefully reasoned judgment.
76. The
important point of law involved was essentially that the leamed High Court
Judge granted recognition to a foreign divorce based on the residency rather
than the domicile of one of the parties in the foreign State. It is common
case, and acknowledged by the learned High Court Judge, that this marked a
significant change in the basis on which foreign divorces might be recognised
in this country.
77. Two
months later by way of notice of motion dated the 10th day of March 1999, the
Attorney General applied to the High Court to be joined as a notice party in
those proceedings. The affidavit grounding the notice of motion explained that
the Attorney General had only become aware of the proceedings following
publicity given to the aforesaid
78. In
a judgment delivered on the 18th June, 1999 the learned High Court refused the
Attorney General’s application to be joined as a notice party and it is
from this judgment and order that the Attorney General appeals.
79. I
think it would be useful at this stage to consider the role expressly
attributed to the Attorney General by Section 29 of the 1995 Act in proceedings
for a declaration pursuant to that section and the effect of an order under
that section if he is not a party to the proceedings.
80. As
a preliminary observation I would note that the provisions of section 29
concerning the role of the Attorney General are similar or analogous to
provisions to be found in the Legitimacy Declaration (Ireland) Act, 1868 and
the Status of Children Act, 1987. The relevant provisions of those Acts have
not, so far as I am aware, been subject to judicial interpretation and I
don’t propose to refer to them in detail.
81. Suffice
to say in the context of these proceedings and the 1995 Act that the status and
importance of marriage as an institution in society is reflected in the fact
that it is regulated by public law and expressly provided for in the
Constitution which imposes on the State a duty to safeguard it.
82. The
Constitution and the law reflect a shared value of society as to the status of
marriage. A declaration as to marital status, made pursuant to section 29 (1)
(a) - (e) may have implications for the force and effect of a marriage
contracted, or purported to have been contracted, in Ireland.
83. Accordingly,
proceedings pursuant to section 29 may well give rise to issues which have
effect far beyond the relationship between the private parties to those
proceedings and impinge on the State interest concerning the status of marriage
as an institution.
84. It
is entirely logical therefore that the Oireachtas, when enacting the 1995 Act,
would have seen applications pursuant to section 29 of the Act concerning
marital status as one ot those areas in which express provision should be made
for the State interest to be represented through the Attorney General, as a
Constitutional office holder, in accordance with procedures laid down in the
Act. It was equally logical that the Oireachtas should limit thc binding effect
of a judgment in such proceedings where the State or public interest was not
represented as a party to them.
85. The
provisions relevant to the role of the Attorney General under section 29 of the
Act are as follows: -
86. What
emerges from the foregoing provisions is that the High Court has no power,
of
its own motion,
to
join the Attorney General as a party to the proceedings. Indeed Section 29 (6)
which gives,
inter
alia
,
power to the court of its own motion, to order the joinder as a party to the
proceedings a person to whom notice of those proceedings has been given,
expressly excludes the Attorney General from its ambit.
87. There
are only two steps which the court may take, of its own motion, in relation to
the Attorney General. Firstly, it may order that notice of the proceedings be
given to the Attorney General and secondly require that he or she argue any
question arising in the proceedings, whether or not he or she is added as a
party.
88. The
court has power to add the Attorney General as a party to the proceedings
only
if the Attorney General applies to be so added.
89. In
effect, it is ultimately and exclusively a matter for the Attorney General to
decide whether or not he should become a party to the proceedings. Certainly,
the Attorney General is not in a position to make such an application unless he
is aware of the proceedings. There
90. In
the course of the submissions on behalf of the Attorney General it was
contended where, pursuant to Section 29, a declaration is sought that a foreign
divorce was valid and entitled to recognition that “it is difficult to
conceive of circumstances where the Attorney General would not be an
appropriate notice party.” That may be a policy view of the Attorney
General which would govern any decision whether or not to apply to the court to
be made a party after having received notice of such proceedings but it is not
one which is reflected in section 29 of the Act. Section 29 (8), without
distinction as to the form of declaration granted under the section,
specifically envisages that any such declaration may be (xranted so as to be
binding on the parties to the proceeding and on any person claiming through
such a party without the Attorney General being a party. The Act extends the
binding nature of the declaration to include “the State”
only
if the Attorney General has been made a party to the proceedings. Accordingly
the act expressly envisages a declaration of the nature granted in this case
being granted without the Attorney General being made a party, albeit with
limited effect as to its binding nature.
91. The
position adopted by the parties in these proceedings is that they are satisfied
to accept this limited effect of the declaration namely, that it is not binding
on “the State”. Which organs or authorities of the State are
envisaged by the notion “the State” as used in Section 29 is by no
means clear. This was explicitly acknowledged by the Attorney General
92. First
and foremost the Attorney General relies on the inherent jurisdiction of the
Court to add him as a party. It was contended that the courts possess a wide
and fundamental jurisdiction to amend an order which had previously been made
and reliance was placed on the judgment of this court in
Belville
Holdings v. Revenue Commissioners
[1994] ILRM 29. In this context it was also submitted that the order of the
High Court in these proceedings was not final and did not dispose of the rights
of the parties in any meaningful or complete sense since that order was not
binding on the State.
93. Secondly,
he submits that although section 29 (4) of the Act confers a discretion on the
High Court as to whether or not the Attorney General should be served with
notification of the proceedings, that discretion having regard to the nature of
the case before it, could, as a matter of law, only have been exercised one
way, namely by giving such notification to him.
94. Finally,
it was submitted on behalf of the Attorney General that the order of the High
Court was in the form of a declaration and it is a principle of law that the
courts lean against granting a declaration in circumstances where there is no
legitimus
contradictor.
In
this case, it was contended, that there was no true
legitimus
contradictor.
95. The
first question is whether the court has an inherent jurisdiction at all to join
the Attorney General as a party to the proceedings which were heard and
determined in the High Court. The second question, and this would only arise if
the first is answered in the affirmative, is whether the court should exercise
that jurisdiction.
96. The
concept of inherent jurisdiction necessarily depends on a distinction between
jurisdiction that is explicitly attributed to the courts by law and those that
a court possess implicity whether owing to the very nature of its judicial
function or its constitutional role in the administration of justice. The
interaction between the express jurisdiction of the courts and their inherent
jurisdiction will depend in each case according to the scope of the express
jurisdiction, whether its source is common law, legislative or constitutional,
and the ambit ot the inherent jurisdiction which is being invoked. Inherent
jurisdiction by its nature onix arises in the absence of the express.
97. What
we are concerned with in this case is the jurisdiction of the courts to join
the Attorney General in proceedings brought pursuant to section 29 of the 1995
Act. I be jurisdiction of the courts to join the Attorney General as a party to
such proceedings is expressly addressed in the provisions of section 29. Can
the courts be called upon to exercise an unspecified inherent jurisdiction in
the face of the jurisdiction delineated by the Oireachtas in section 29
concerning the Attorney General as a party?
98. Where
the jurisdiction of the courts is expressly and completely delineated by
statute law it must, at least as a general rule, exclude the exercise by the
courts of some other or more extensive jurisdiction of an implied or inherent
nature. To hold otherwise would undermine the normative value of the law and
create uncertainty concerning the scope ofjudicial function and finality of
Court Orders. It may indeed be otherwise where a fundamental principle of
constitutional stature is invoked against a statutory or regulatory measure
determining jurisdiction, but that is not the case here.
99. The
statutory provisions cited in the earlier part of this judgment had,
inter
alia,
the
following effects: -
100. It
seems to me clear that the foregoing represent conscious choices of the
Oireachtas in the enactment of the legislation in question.
101. They
are express and complete providing for, on the one hand, the joinder of the
Attorney General in certain circumstances and providing for the consequence of
his non-joinder in all circumstances.
102. Having
regard to the foregoing features of this case, I am of the view that neither
the High Court nor this Court can attribute to itself some inherent
jurisdiction going beyond the scope of that conferred expressly on the High
Court by the Oireachtas in that Act.
103. The
learned High Court Judge in my view was therefore correct in refusing the
application of the Attorney General to be joined after the proceedings before
her had ended.
104. It
may be, with the benefit of experience, that the procedures laid down in the
Act. particularly with regard to giving notice of proceedings to the Attorney
General, are unsatisfactory but that is a matter for the Oireachtas.
105. One
further observation. In certain circumstances the Attorney General maybe joined
as a party to proceedings because there is some essential State or public
interest which may be affected by their outcome. This was not a specific ground
relied upon by the Attorney
106. General
in this case but in any event it seems to me one which can only arise in
proceedings which are in being, which is not the case here and it may also be
circumscribed by express statutory provisions.
107. As
regards a submission on behalf of the Attorney General that the order of the
High Court in the proceedings was not a final order, I feel this can be dealt
with on the basis of first principles. These were proceedings pursuant to
statute according to which persons may seek certain declarations as to marital
status and specifically in this case as to the status of a foreign divorce.
This was the justiciable question between the parties before the High Court.
What was determined by that court is binding on those parties, as envisaged by
the statute, and not binding on the State. There has been no appeal, and since
the order was made there is no justiciable question outstanding between the
only parties to the proceedings. In short, the High Court has exercised its
powers and jurisdiction to make the declaration sought in respect of parties
specifically envisaged by the statute. The proceedings are at an end. It is
perhaps not without significance that the application by the Attorney General
to be joined as a party is not based on section 29 (5) of the Act as such,
which requires that he be joined, on his application in any proceedings under
the section. Of course it is quite logical that the Attorney General should not
have sought to base his application on that section. It is self-evident that
section 29 (5) envisages an application in proceedings which are in being
before the High Court which, in my view, is manifestly not the case.
108. As
regards the submission made on behalf of the Attorney General that the order of
the High Court should not be treated as final in that it did not determine
completely the rights of the parties as it was not binding on the State I think
it is sufficient to say that the High Court order completely disposed of
ajusticiable question between parties in a manner and to an extent envisaged by
the statute. The fact that its binding effect is limited to those parties and
those claiming through them is a consequence of the statute and not of the
order. In my view, the learned High Court Judge was also correct in finding
that her order of 12th November 1998 was a final order in the proceedings.
109. In
the written and oral submission it was also argued on behalf of the Attorney
General that the courts possess “a wider and more fundamental
jurisdiction” to amend an Order which it had previously made. For this
proposition reliance was placed on
Belville
Holdings v. Revenue Commissioners
[1994] ILRM 29.
110. In
that case Finlay C.J., in the judgment of the court, did acknowledge that there
is, apart from the correction of clerical errors and the like as provided for
in Order 28, Rule 11, of the Superior Court Rules “a wider and more
fundamental jurisdiction in a court to amend an order which it has previously
made, even though that order is in the form of a final order and has been
perfected”. The former Chief Justice envisaged “that it is only in
special or unusual circumstances that an amendment of an order passed and
perfected, where the order is of a final nature, should be made by the court.
The finality of proceedings both at the level
111. As
regards the exercise of that “wider and more fundamental
jurisdiction” the learned Chief Justice set out the principles which
governed that question by reference to a decision of the English Court of
Appeal in
In
re Swire
30 ChD 239. He cited certain passages from the judgments of the Court of Appeal
as expressing the principle according to which a court may amend a final order
such as “the order as passed and entered contains an adjudication upon
that which the court in fact has never adjudicated upon...”; “the
order ... does not express the order actually made, . ..“; “an
order, ... maybe amended by the court so as to carry out the intention and
express the meaning of the court at the time when the order was made,...”.
112. The
judgment of this Court in that case makes it clear that the fundamental pox~er
o amend a final Order is limited to
correcting,
so
to speak, the final judgment so as to ensure that it accurately reflected the
adjudication and the intention of the court which made it.
113. The
judgment in that case was approved by this Court in
The
Attorney General v The Open Door Counselling Ltd. (No. 2)
[1994] 2 IR 333
.
(In
the latter case the court did not exclude interference with a final order where
there was a fundamental flaw in the administration ofjustice such as fraud,
which does not arise here).
114. In
principle, therefore, the jurisdiction of the courts to alter a final order is
limited to amending it so as to give true and final effect to what the court
had actually decided.
115. The
application of the Attorney General here is of a wholly different nature
seeking as it dQes to reopen the proceedings to enable him to bring an appeal
to this court against the judgment and order of the High Court. For these
reasons I am of the view that the argument made on behalf of the Attorney
General is not well founded.
116. The
second and third submissions of the Attorney General referred to above,
concerning the exercise by the learned High Court Judge of her discretion in
the proceedings not to serve notice on the Attorney General and the absence
therein of a
legitimus
contradictor
relate
to matters which arose in the course of the proceedings before the High Court
and in effect seek to call in question the validity of her judgment and order.
In so far as they are relevant at all to this application they can only in my
view, be relevant to the second question, namely, whether this court, if it has
an inherent jurisdiction, should accede to the Attorney General’s
application and exercise that jurisdiction.
117. Having
concluded that the court has no such jurisdiction it is not necessary to
address those arguments. Nor, needless to say, has it been necessary to address
the substantive issue concerning the legal basis for the recognition of foreign
divorces which arose in the High Court. It may indeed be desirable, from the
point of view of clarity and certainty, that the principles of law to be
applied in such a case be the subject of a decision of this Court (although the
limited nature of its binding effect must at least mean that it can only have
legal effect as concerns the parties in that case and those claiming through
them). It is not an
118. However,
the issue must be brought before this Court in proceedings where the Court has
jurisdiction.
119. For
all the foregoing reasons, I am of the view that the application of the
Attorney General should be refused.