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Cite as: [2005] 1 ILRM 1, [2004] IESC 38

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    Goold v. Collins & Ors [2004] IESC 38 (12 July 2004)



    Hardiman J.

    Geoghegan J.

    Fennelly J.






    JUDGMENT of Mr. Justice Hardiman delivered the 12th day of July, 2004. [Nem Diss]

    This is the appeal of the appellants (whom I shall describe as the authorities) against a portion of an order of the High Court (McKechnie J.) of the 7th April, 2003. By this order the learned High Court Judge stayed the applicant's judicial review proceedings except in relation to the reliefs sought at paragraphs 1 and 2 of her notice of motion. This was done on the basis that the other reliefs sought were moot. The authorities appeal on the grounds that the relief sought at paragraphs 1 and 2 are also moot. Ms. Goold has not appealed the staying of the balance of the proceedings.

    Factual background.

    These proceedings arise from matrimonial difficulties between the plaintiff and her husband, who is the fifth-named respondent Mr. Gallagher. The details of these differences (as opposed to the proceedings to which they give rise) are, of course, wholly irrelevant to the present judicial review proceedings. Notwithstanding that obvious fact, the applicant/respondent has seen fit in her verifying affidavit gratuitously to give her one-sided account of these differences. This conduct on the part of the applicant is vexatious in the literal sense of the term, and absolutely unfair to the fifth-named respondent. Mr. Gallagher has taken no part whatever in this appeal and it will be easy to understand why he has taken this course when the nature of the proceedings is set out. I deprecate what the applicant/respondent has done and I wish to make it clear that I have disregarded and withheld credence from the allegations in relation to Mr. Gallagher for the purpose of this judgment.

    Events of May, 2002 - January, 2003.

    The events which form essential factual background to the present application took place in this period. On the 14th May, 2002 a Protection Order was granted by the District Court in favour of the applicant and against Mr. Gallagher.

    On the 18th September, 2002 a Protection Order was granted by the District Court in favour of Mr. Gallagher and against the applicant. This is the order which, inter alia, the present proceedings seek to quash.

    On the 21st and 22nd September, 2002 events occurred which led to two arrests of the applicant and the institution of certain criminal proceedings against her, in relation to alleged breaches of the Protection Order obtained by Mr. Gallagher.

    On the 30th September, 2002, Ms Goold obtained, ex parte, an interim barring order against Mr. Gallagher. This was discharged by the District Court on the 16th October, 2002.

    On the 9th October, 2002 this Court delivered its judgment in DK v. Crowley [2002] 2 IR 744. The Court declared that s.4(3) of the Domestic Violence Act, 1996 was invalid having regard to the provisions of the Constitution.

    On the 21st November, 2002 Ms. Goold and Mr. Gallagher reached an agreement. The entire relevant text of this agreement is set out below. Pursuant to its terms, the Protection Order which had been granted in Mr. Gallagher's favour was to be discharged by consent.

    On the 17th December, 2002 the applicant obtained leave to bring the present judicial review proceedings.

    On the 29th January, 2003, the adjourned date of the charges against the applicant, the said charges were dismissed.

    The agreement.

    The agreement arrived at between the parties of the 21st November, 2002 was an exhibit in the present proceedings. Certain of its provisions are irrelevant to the present litigation, but the following have an obvious bearing:-

    "(1) -
    (2) The husband shall forthwith withdraw the complaints made by him to An Garda Síochána which resulted in two prosecutions being initiated against the wife in respect of the alleged incidents at the family home on the 21st and 22nd September, 2002, which prosecutions are brought pursuant to s.17(1) of the Domestic Violence Act, 1996. And the husband shall ask An Garda Síochána to confirm in writing within seven days of this date to the wife's solicitors… that the summonses relating thereto will be withdrawn and will not proceed into hearing in the Dublin Metropolitan District Court on the 29th January, 2003.
    (3) -
    (4) The Protection Order made on the 18th September, 2002 by the Dublin Metropolitan District Court on the application of the husband shall be discharged and the custody order made on the 30th September, 2002 on the application of the wife shall be discharged.
    (5) - "

    This agreement was signed by the parties and witnessed by their respective solicitors.

    It is undisputed that the husband complied with the terms of this agreement. The Protection Order was discharged on the 21st November. However, in view of certain submissions made in the course of this case the precise mode of compliance with the terms of the agreement in relation to the prosecutions is of relevance. These appear from the affidavit of Inspector Patrick Mangan. From this it appears that on the 22nd November, 2002, the day after the agreement, the husband's solicitors wrote to the Superintendent at Celbridge (where the relevant premises were located) asking him to note that "Our client wishes to withdraw the complaints made by him to An Garda Síochána which resulted in two prosecutions being initiated against Eileen Goold, his wife, in respect of alleged incidents in the family home on the 21st – 22nd September, 2002, which prosecutions are brought pursuant to s.17(1) of the Domestic Violence Act, 1996". The solicitor went on to seek the confirmation referred to in the agreement.

    By letter of the 31st December, the Inspector wrote to the husband's solicitors saying, relevantly "I am to state that this matter is listed for hearing at Kilmainham District Court on the 29th January, 2002. Your client should attend court to withdraw the complaint in person. Proceedings have already been instituted in this matter".

    As already noted the charges were in fact dismissed on that day because the husband did not prosecute them. It therefore appears that the husband complied with the terms of the agreement: he withdrew the complaints in writing and sought the confirmation referred to at paragraph 2 of the agreement. The Gardaí, for their part, were entitled to take the view that they could not withdraw proceedings already instituted: that was a matter for the Court.

    The judicial review proceedings.

    In her judicial review proceedings, the wife sought the following remedies:-

    "1. A Declaration that Section 5 subsections (1) and (4) of the Domestic Violence Act 1996 are invalid having regard to the provisions of the Constitution and more particularly pursuant to Articles 40.1 and Article 40.3 of the Constitution.
    2. An Order of Certiorari quashing the Protection Order made by the Dublin Metropolitan District Court on the 18th September 2002 on the application of Jack Gallagher, the Applicant's husband.
    3. An Order prohibiting the Director of Public Prosecutions from further prosecuting the Applicant herein in proceedings entitled "The Director of Public Prosecutions at the suit of Garda John J. O'Connell v. Eileen Gould (otherwise Goold)" presently pending before the Dublin Metropolitan District Court and scheduled for hearing on the 29th January 2003.
    4. An Order prohibiting the Director of Public Prosecutions from further prosecuting the Applicant herein in the proceedings entitled "The Director of Public Prosecutions at the suit of Garda Kieran Trainor v. Eileen Gould (otherwise Goold)" presently pending before the Dublin Metropolitan District Court and scheduled to be heard on the 29th January 2003.
    5. Such further Order as this Honourable Court may deem meet including an Order providing for the Costs of this application.

    The wife, the applicant in these proceedings, obtained leave to seek those reliefs by way of judicial review on the 17th December, 2002 and issued a motion directed to the respondents returnable for the 28th January, 2003.

    When the proceedings came on for hearing counsel for the authorities applied to the learned trial judge to try, as a preliminary issue, the question of whether or not the application for judicial review was moot. In his judgment of the 7th April, 2003 the learned trial judge held that the claims to the reliefs set out at paragraphs (3) and (4) were indeed moot and he stayed the proceedings in respect of those reliefs. In doing so he held that:-

    "As the husband had withdrawn the complaint, the taking of relief proceedings on the 17th December, 2002 was premature. If the husband had changed his mind between the 21st November, 2002 and the 29th January, 2003, any District Judge when told of the compromise agreement would not have compelled this lady to face the charge sheets on the 29th January, 2003. This would have given her an opportunity to take judicial review then. Judicial Review is a very valuable remedy and should not be resorted to save when necessary. The route I have suggested would have afforded an effective remedy. In any event, she could have brought a variation application under s.5(2) of the 1996 Act."

    In relation to the reliefs set out in paragraph (1) and (2) above, the learned trial judge said:-

    "It is not unfair to express the view that when the parties concluded an agreement on the 21st November, 2002, it would have been expected to end litigation. The wife was concerned that the damaging impact of the Protection Order could affect her reputation and could impact on her should there be further proceedings at a later date between the parties. I have to accept that there is a theoretical possibility that this order could affect her reputation. With regret, I am not prepared to accede to this application in so far as there is a challenge to the constitutionality of the Act".

    Protection Orders.

    A Protection Order is an order which can be made pursuant to s.5(1) of the Domestic Violence Act, 1996 which provides:-

    "If, on the making of an application for a safety order or a barring order or between the making of such an application and its determination, the Court is of the opinion that there are reasonable grounds for believing that the safety or welfare of the applicant for the order concerned or of any dependent person so requires, the Court may by order (in this Act referred to as a Protection Order) direct that the respondent to the application –
    (a) Shall not use or threaten to use violence against, molest or put in fear the applicant or that dependent person, and
    (b) If he or she is residing at a place other than the place where the applicant or that dependent person resides, shall not watch or beset the place where the applicant or that dependent person resides, and the Court may make the Protection Order subject to such exceptions and conditions as it may specify".
    Section 5(2) of the Act allows for the variation of a Protection Order on the application of any relevant person.

    In fact, in the present case the applicant had issued a summons to discharge the Protection Order issued against her. This was done on consent following the agreement set out above, on the 21st November, 2002 which was the date of the agreement.

    Accordingly, the relief sought in relation to the Protection Order is to quash an order which, at the time of the inception of the judicial review proceedings, had already been discharged some four weeks previously by agreement between the applicant and her husband each of whom were legally advised. The applicant had also issued a summons to discharge it. It is beyond dispute that on the 17th December, 2002 and at all times after the 21st November, the order was discharged and of no effect.

    The criminal proceedings.

    The two offences which the applicant was alleged to have committed on charge sheets returnable for the 29th January involve two alleged contraventions of the Protection Order. The first alleges that the 21st September, 2002, at the address in Celbridge, she contravened the Protection Order in that she kicked Mr. Gallagher. The second alleged that on the 22nd September at the same address she contravened the Protection Order in that she used violence against Mr. Gallagher. These charges accordingly depend on the validity of the Protection Order. The applicant seeks to challenge the constitutionality of s.5(1) of the Act of 1996 providing for the making of Protection Orders and s.5(4) which allows such an order to be made notwithstanding that the person to whom it is directed has not been served with an application for a safety order or a Barring Order.

    It will be clear from the facts recited above that, at the time of seeking liberty to apply for judicial review Ms. Goold had, by the agreement referred to above, arranged that the husband would withdraw the complaints which had led to the proferring of the charges against her. He had in fact done so on the following day. The charges had yet to be dealt with by the Courts but on the first day they were in court following the agreement they were dismissed.

    Submissions on this appeal.

    On this appeal, Mr. Shatter, solicitor for the applicant, said that the agreement of the 21st November did not have any retrospective effect and that the Protection Order was part of "the family background and the applicant's court record that she was the subject of a District Court Protection Order from the 18th September, 2002 to the 21st November, 2002". He said that she also continued to be a person who had been brought to the attention of the guards for alleged breaches and had been arrested and forcibly removed from her home on two occasions. He said that the granting of the Protection Order was "at the foundation of a fundamental violation of her personal and family rights".

    Mr. Shatter acknowledged the existence and validity of the agreement of the 21st November but said that the Gardaí had "failed" to confirm within seven days that the summonses would be withdrawn. The agreement, however, provided only that the husband would ask the Gardaí for the said confirmation. He did so.

    Mr. Shatter also said that the husband and wife had, prior to the agreement of the 21st November, issued High Court judicial separation proceedings against each other. Their relations were "volatile". The husband might have changed his mind and subjected the wife to a "public criminal trial". Since such a trial would have been in the District Court the validity of the Protection Order could not have been challenged there. Only by seeking and obtaining a stay on those proceedings on foot of the liberty to seek judicial review could she be sure that the criminal proceedings would not have gone on on the 29th January, 2003.

    Mr. Shatter acknowledged that the learned trial judge had held that proceedings in relation to the charges against the applicant were premature as of the 17th December, 2002, and that there had been no appeal taken from that finding. However, he said "It is not accepted that the learned trial judge was right in so ruling".

    In relation to the Protection Order Mr. Shatter said that his client was arrested twice during its currency and that even after its discharge there was "no protection… to guarantee that these events could not be repeated". Furthermore he submitted:-

    (1) The fact that the Protection Order issued is damaging to the applicant's good name and reputation on the basis that it is part of her 'legal record and matrimonial history' and that she 'remains a person who can perceived as having been rightly arrested on two occasions'. He said there must be a garda record of these arrests.
    (2) He points to the existence of High Court matrimonial proceedings between the applicant and her husband. He said the learned trial judge was wrong in thinking that the agreement of the 21st November was expected to end litigation between them. He says that his client is entitled to have regard to the fact that the Protection Order to which she was subject for a period in excess of two months 'could tilt the balance in family proceedings before the High Court unfairly against her or could determine the credibility of her account of their matrimonial difficulties or could impact on decisions made concerning the custody and welfare of her children or the nature of ancillary relief".
    (3) Mr. Shatter submitted that his client was entitled to take steps to ensure that she is not again in the future wrongly made subject to a Protection Order and again arrested without warrant. In this regard he refers to the judgment of this Court in DK v. Judge Crowley and Ors. [2002] 2 IR 744. He pointed out that the provisions allowing for the making of interim barring order on an ex parte basis was found to be unconstitutional by reason of its '… failing to prescribe a fixed period of relatively short duration during which an interim barring order made ex parte is to continue in force'. He also relies on certain other dicta in the judgment of the Chief Justice, which was the judgment of the Court, in that case. These will be considered below.

    Accordingly, it was submitted, the proceedings are not moot.

    The judgment of this Court in DK was delivered on the 9th October, 2002, some five weeks before the applicant entered into the agreement of the 21st November of that year. The decision was widely publicised and was certainly known to all family law practitioners, as well as very many others, since the date of its delivery. The applicant, who was represented by a leading firm of family law specialists, must have been aware of it and has not alleged that she was not. It must also be recalled that the applicant had herself applied for and obtained a Protection Order against her husband which presumably would have done him any damage in the way of reputation that in the wife's view might be follow from the issue of such an order.

    Decision on the above points.

    It is of course beyond question that the applicant, like every other citizen, is entitled to her good name. This is acknowledged in Article 40 of the Constitution and is not questioned by the appellants in these proceedings.

    Equally, the legislation in respect of domestic violence has been passed by the Oireachtas for a vital social purpose: the protection of spouses and others against lawful assault and, on occasion terrorisation. There is sometimes a necessity for such protection to be provided immediately in an acute situation. The applicant herself has sought such ex parte relief, extending not merely to a Protection Order but to an interim barring order.

    In my view it would be utterly unreasonable in the legal sense of that term for any person to regard another as lowered in his or her reputation purely because he had been the subject of an interim order. In Voluntary Purchasing v. Insurco Ltd. [1995] 2 ILRM 145 McCracken J. acknowledged the risks inherent in granting ex parte relief and said:-

    "… Quite apart from the provisions of any rules or statutes, there is an inherent jurisdiction of the Courts in the absence of an express statutory provision to the contrary, to set aside an order made ex parte on the application of any party affected by that order. An ex parte order is made by a judge who has only heard one part to the proceedings. He may not have had the full facts before him or he may even have been misled, although I should make it clear that this is not suggested in the present case. However, in the interest of justice it is essential that an ex parte order may be reviewed and an opportunity given to the parties affected by it to present their side of the case or to correct errors in the original evidence or submissions before the Court. It would be quite unjust that an order could be made against a party in its absence without notice to it which could not be reviewed on the application of the party affected".

    In Adam v. Minister for Justice [2001] 3 IR 53, at 77, I said:-

    "In my view, any order made ex parte must be regarded as an order of a provisional nature only. In certain types of proceedings, either the apparent requirements of justice or the requirements of its administration mean that a person will be affected one way or another by an order made without notice to him and therefore his having been heard. This state of affairs may, depending on the facts, constitute a grave injustice to the defendant or respondent. In the context of an injunction, only a very short time will normally elapse before the defendant has some opportunity of putting his side of the case. In judicial review proceedings the time before this can occur will normally be much longer. This clearly has the scope to work an injustice at least in some cases".

    It follows from these passages that the potential for injustice arising from the granting of an interim order on inaccurate, incomplete or even invented information is fully acknowledged by the Courts. While great care must be exercised by a court at any level in granting any form of ex parte relief, it cannot be guaranteed that this will of itself be sufficient to prevent an injustice. The respect in which the relevant legislation was found to be unconstitutional in DK was precisely the failure to provide a sufficiently early opportunity to the person affected by an interim barring order to end the possible injustice to which he or she has been subjected. The Courts are fully aware that ex parte procedures may be abused out of spite or for tactical purposes.

    In those circumstances, any person who formed a view adverse to the good name or reputation of another on the basis that he or she had been the subject of an ex parte Order of any kind would be acting unreasonably in the legal sense of that term. Such a conclusion would be logically and legally insupportable, would fly in the face of common sense and would be most unjust. The law of defamation, which is the major mechanism provided for the vindication of the right to a good name requires that the reputation of a plaintiff be shown to have been damaged in the eyes of "right thinking" people. No right thinking person could be justified in drawing any conclusion or inference adverse to a person's good name on the basis that he had been the subject of an ex parte order of any kind.

    It follows from the foregoing that no court would be justified in allowing the mere fact that ex parte relief had been granted against a party to litigation to tilt the balance of that litigation in any way against him or her. The applicant relies, however, in this connection on a passage in the judgment of the Chief Justice in DK v. Crowley, cited above, which related to interim barring orders. The passage in question indeed envisages the possibility that the balance of litigation between the parties may be affected crucially, and in a manner which may be difficult to redress. The passage relied on, and quoted in the applicant/respondent written submissions is this:-

    "It must also be borne in mind that an interim barring order will typically be granted in a case where the relationship between the parties has effectively broken down and disputes have arisen, or will arise, in relation to matters such as custody of children, the payment of maintenance and adjustment to property rights. The granting of an interim order in the absence of the defendant may in such a case crucially tilt the balance of the entire litigation against him or her to an extent which may subsequently be difficult to redress."

    The submissions however omit the balance of that paragraph which reads

    as follows:-

    'In particular, the order ultimately made by the Court dealing with the custody of the children of the marriage may necessarily be affected by the absence of one spouse from the family home for a relatively significant period as the result of a barring order: necessarily because the paramount concern of the Court on such an application will be the welfare of the children and the removal of one spouse from the home by legal process for a relatively lengthy period, even though subsequently found to have been wrongful, may be a factor to which the Court may have to have regard in determining a custody issue'."

    The words omitted in the submission make it clear that it is the effect of an interim order, and not the mere fact that one was made, that may entail the consequence mentioned. In the present case, the only content in the order was that the applicant was ordered not to use or threaten to use violence against the husband, or molest him or put him in fear. This was in precisely the same form as the order which she had previously obtained against him, and she had also obtained an interim barring order which had effect for just over a fortnight. The effect of a Protection Order made ex parte could not possibly constrain or influence the discretion of a court in any aspect of proceedings and it would be wrong and irrational if it did so.

    Thirdly, the applicant argues that she might again be subjected to a Protection Order, made ex parte and possibly to arrest if she were alleged to have breached it. It is not to be assumed that this might occur without good reason. If she were subjected to such an order the issue of constitutionality of the statute under which it was issued would clearly not be moot. But that is not the position at the present time.

    I would add a further observation about the plaintiff's claim to have suffered reputational damage as a result of the making of the protection order. I have already held that she could not suffer legally cognisable reputational damage on foot of the making of an ex parte order against her, for the reasons set out above. The artificiality of her position in this regard is emphasised by the falsity of the assumption, inherent in her submissions, that if she did suffer such damage it could be counteracted by an attack on the constitutionality of the Act providing for the issuing of protection orders. To accept this, one would have to take the view that a person perverse enough to reach a conclusion adverse to the applicant's character purely on the basis of the making of an ex parte order would set aside that view if he or she later became aware that the Statute providing for protection orders had been found unconstitutional. This is manifestly false and contrary to ordinary experience. Legal protection for a citizen's reputation or good name does not proceed on the basis of the opinions of malicious or unreasoning persons, but it is surely manifest that, in the minds of such persons, any adverse opinion they might form would not be erased by a subsequent finding of unconstitutionality, on grounds wholly removed from the facts of an individual case.

    Mootness more generally.

    A proceeding may be said to be moot where there is no longer any legal dispute between the parties. The notion of mootness has some similarities to that of absence of locus standi but differs from it in that standing is judged at the start of the proceedings whereas mootness is judged after the commencement of proceedings. Parties may have a real dispute at the time proceedings commence, but time and events may render the issues in proceedings, or some of them, moot. If that occurs, the eventual decision would be of no practical significance to the parties.

    In the present proceedings it was strongly argued on the part of the applicant/respondent that the question of mootness should be assessed as at the 17th December, 2002, the day leave to apply for judicial review was obtained. I believe that this submission confuses the notion of locus standi with that of mootness.

    The practice of the Courts in declining, in principle, to decide moot cases arose at common law, although various jurisdictions have statutory or constitutional provisions about it. (See 88 Harvard Law Review 373 at 374 (1974) ). In De Roiste v. Minister for Defence [2001] 1 IR 190 Denham J. said:-

    "Judicial review is an important legal remedy developed to review decision making in the public law domain. As the arena of public law decision making has greatly expanded so to has the volume of judicial review. It is a great remedy modernised by the Rules of the Superior Courts, 1986, and by precedent. However, there is no absolute right to its use and there are limits to its application. The granting of leave to apply for judicial review and the determination to grant judicial review are discretionary decisions for the Court. This has been set out clearly in precedent".

    Mootness and the discretion of the Court which is triggered by a point being moot is of particular relevance when the point on which a decision is sought involves the constitutionality of a statutory provision. In Cooke v. Walsh [1984] IR 710 at 728 O'Higgins C.J. said:-

    "It is well settled that the consideration of any question involving the validity of a statute or a section thereof should, in appropriate circumstances, be postponed to the consideration of any other question, the resolution of which will determine the issue between the parties".

    I would here observe that, of course, a dispute between parties to civil litigation, including family litigation, is capable of resolution by settlement. In many instances, indeed, not least in family law, such resolution is best achieved by settlement.

    In Murphy v. Roche [1987] IR 106 at 110 Finlay C.J. (Henchy J. and Griffin J. concurring) said:-

    "There can be no doubt that this Court has decided on a number of occasions that it must decline, either in constitutional issues or in other issues of law, to decide any question which is in the form of a moot and the decision of which is not necessary for the determination of the rights of the parties before it. Secondly, it has also clearly been established that where the issues between parties can be determined and finally disposed of by the resolution of an issue of law other than constitutional law, the Court should proceed to consider that issue first and, if it determines the case, should refrain from expressing any view on the constitutional issue that may have been raised".

    Specifically in relation to the claim that a statute is invalid having regard to the provisions of the Constitution, O Dálaigh C.J. in the leading case of McDonald and Bord Na Gcon [1964] IR 350 said:-

    "Moreover, while the constitutional validity of a statute has to be determined by reference to the Statute's general application, I must doubt whether it would be proper to pronounce a statute repugnant to the Constitution except in a case where the specific facts of that case themselves exemplified the repugnancy complained of".

    This area was revisited very recently by this Court in White v. Dublin City Council Ireland and The Attorney General (Supreme Court unreported 10th June, 2004). This was a planning case in which, inter alia, the plaintiffs claimed that a section of the Local Government (Planning and Development) Act, 1963 was unconstitutional. The planning authority suggested that it was appropriate to consider the constitutional issue in advance of the other issues, but the Court held that that was not permissible. Fennelly J. said:-

    "It is well-established in the case law of this Court that a challenge to the constitutionality of a statute will not normally be addressed until the person mounting the challenge shows that he is affected by the provision. Finlay C.J. stated that it is clear from the "jurisprudence that the Courts should not engage in the question of the possible invalidity of an Act of the Oireachtas unless it is necessary for its decision to do so." (McDaid v Sheehy [1991] I.R. 1 at page 17.) Where there are points which do not entail such a question, it follows that they must be dealt with first. If they are decided against the party raising the constitutional question, the latter will not normally be reached. Alternatively, as in Roche v Minister for Industry and Commerce [1978] I.R. 149, a party may succeed on a non-constitutional ground. In that case, the court declared invalid, for non-compliance with a statutory provision, an order made by the Minister under the Minerals Development Act, 1940. The plaintiff, therefore, succeeded in his objective and this Court was unanimously of the view that it was unnecessary to deal with the validity of the section.
    A possible exception is recognised in two judgments. O'Higgins C.J. in M. v An Bórd Uchtála [1977] 287, at page 293, thought that "there may be circumstances of an exceptional nature where the requirement of justice and the protection of constitutional rights make the larger [i.e. constitutional] enquiry necessary." Finlay C.J. in Murphy v Roche [1987] expressed the view that the principle must be subject in any individual case to the overriding consideration of doing justice between the parties."

    There has been a good deal of exploration of the topic of mootness in United States and Canadian decisions, some in the very context in which this case arises, that of orders directed at the restraining of domestic violence. In Professor Lawrence Tribe's American Constitutional Law (3rd edition, New York 2000) it is said at paragraph 3 – 11 that:-

    "… mootness doctrine centres on the succession of events themselves, to ensure that a person or group mounting a constitutional challenge confronts continuing harm or a significant prospect of future harm. A case is moot, and hence not justiciable if the passage of time has caused it completely to lose 'its character as a present, live controversy of the kind that must exist if the Court is to avoid advisory opinions on abstract propositions of law' (Hall v. Beals 396 US 45 (1969). Thus, the Supreme Court has recognised that mootness can be viewed as 'the doctrine of standing set in a time frame: the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)'." (US Parole Commission v. Geraghty 445 US 388, 1980).

    The rationale for modern mootness rules was, I believe, well expressed in the leading Canadian case Borowski v. Canada [1989] 1 SCR 342. There, the plaintiff attacked the validity of portions of a section of the Canadian Criminal Code relating to abortion, on pro-life grounds. Subsequent to a decision, partly favourable and partly unfavourable to him by the Court of Appeal, the entire section of which the impugned provisions were part was struck down by a decision of the Supreme Court in a separate case. The plaintiff/appellant sought to extend his grounds but the issue was found to be moot. The Supreme Court of Canada held that:

    "An appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. Such a live controversy must be present not only when the action or proceedings is commenced but also when the Court is called upon to reach a decision. The general policy is enforced in moot cases unless the Court exercises its discretion to depart from it."

    The Supreme Court of Canada went on to say that Courts should be guided in the exercise of the discretion to hear a moot case by a consideration of the underlying rationale of the mootness doctrine. This was expressed as follows:-

    "The first rationale for the policy with respect to mootness is that a court's competence to resolve legal disputes is rooted in the adversary system. A full adversarial context, in which both parties have a full stake in the outcome, is fundamental to our legal system. The second is based on the concern for judicial economy which requires that a court examine the circumstances of a case to determine if it is worthwhile to allocate scarce judicial resources to resolve the moot issue. The third underlying rationale of the mootness doctrine is the need for the Courts to be sensitive to the effectiveness or efficiency of judicial intervention and demonstrate a measure of awareness of the judiciary's role in our political framework. The Court, in exercising its discretion in an appeal which is moot, should consider the extent to which each of these three basic factors is present. The process is not mechanical. The principles may not all support the same conclusion and the presence of one or two of the factors may be overborne by the absence of the third, and vice versa."

    In the United States, an issue is not deemed moot if it is "capable of repetition, yet evading review" a phrase devised in 1911 and constantly used thereafter, e.g. in Honig v. Doe 484 US 305 [1988]. This is said to be the case where "(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again". (See generally, Tribe op cit. page 349).

    As might be expected from that formulation, such cases have tended to focus on time limited events such as election campaigns, pregnancy, (as in Roe v. Wade) and time limited court orders especially in the domestic violence area. I will not refer in detail to any of the transatlantic cases in relation to domestic violence orders because they were not cited to us. It is however clear from them that in the United States and Canada, as here, the imperative to protect victims of domestic violence led to the enactment of provision for easily obtainable orders in the nature of barring orders, which initially paid insufficient regard to the procedural and substantive rights of respondents. This raised issues of the sort which this Court dealt with in DK v. Crowley, cited above. See, for example: Marquette v. Marquette (Court of Civil Appeal) 1984 OK Civ App 25, 686 P 2d 990 (15/5/1984); Smith v. Smith 145 N.C. App. 434; 549 S.E. 2d. 912; Piper v. Layman 125 Md. 745; 726 A. 2d. 887 (6/4/1999); Borowski v. Attorney General [1989] 1 S.C.R. 342; 57 D.L.R. (4th ed.) 231; R. v. Morgentaler (No. 2) [1988] 1 S.C.R. 30; 44 D.L.R. (4th ed.) 385 Tremblay v. Daigle [1989] 2 S.C.R. 530; 62 D.L.R. (4th ed.) 634; A.L.G.C. v. Government of Prince Edward Island 157 D.L.R. (4th ed.) 523 (20/2/1998).

    Application to the present case.

    Firstly, I believe that the present case is moot in the sense that it does not feature a live, concrete dispute between the parties: a decision on the outstanding issues would have no direct impact on the parties. The reasons for this are significant, and differ in nature from the reasons for mootness in any of the cases which I have come across. The Protection Order which is sought to be quashed and the statutory authority for making of which is impugned as unconstitutional, was discharged on consent by reason of an agreement between the parties to it, including the present applicant/respondent. The criminal proceedings taken on foot of her alleged breaches of the Protection Order have been dismissed, again pursuant to an agreement between the parties.

    Before any of these things had happened the applicant had herself sought not merely a Protection Order but an interim barring order, ex parte. This latter step was taken on the 30th September, 2002: it follows that, up to that time, the applicant/respondent had not become conscious of what she now believes to be the injustice and unconstitutionality of Protection Orders granted ex parte or even of the much more drastic barring order to which she was not herself subject, but which she sought against her husband.

    Her altered stance in relation to orders of the sort now impugned must, on the facts, have been influenced by her knowledge of the decision of this Court in DK v. Crowley, cited above. She now says that the reasoning leading to the striking down of the former statutory provision for ex parte barring orders must by parity of reasoning apply to her circumstances as well.

    DK v. Crowley related not to a Protection Order, but to an interim barring order. This, unlike the Protection Order, has an immediate physical consequence: the respondent to it must leave his or her home and remain out of it until the order lapses or until further order. The Protection Order, by contrast, merely enjoins the respondent to it against the use of violence or threats of violence, which are in any event intrinsically unlawful. But the most relevant point of distinction from the DK case is that that litigation featured no agreement bringing the District Court litigation (though not the litigation generally) between the parties to an end. The applicant/respondent, being fully advised as to the nature and significance of the DK decision elected not to pursue the constitutional remedy in relation to that order, nor to litigate the question of whether a Protection Order should be made against her in the District Court, but simply to discharge it by agreement.

    The question of mootness did not arise in the DK case and it would clearly be otiose to discuss here whether any ground existed for considering it moot or whether, if the point had arisen, the Court would nevertheless have admitted the case for adjudication in its discretion. In the present case, however, I am satisfied that there is no reasonable expectation that the applicant/respondent will again be subject to the same action i.e. the making against her of a Protection Order ex parte. There is simply no evidential foundation for such an expectation. The District Court proceedings of 2002 by and against the applicant are all at an end. They have ended by agreement. There is no suggestion in the affidavits of any behaviour on her part which could justify an application for a further Protection Order, much less a safety order or a barring order. The issues of public interest in relation to interim barring orders have been fully explored in this Court's decision in DK. In so far there is any analogy to be drawn with Protection Orders (and I express no view on that question since it is not before us) that decision is there for the guidance of any court to which an application might be made. For the reasons set earlier in this judgment I do not believe that any consequential or collateral sequelae of the ex parte Protection Order have damnified her in the manner alleged.


    For the reason set out above I would allow the appeal and stay the applicant/respondent's proceedings for the relief set out at paragraphs (1) and (2) of her Notice of Motion. Since she has not appealed the order of the High Court staying the balance of the proceedings, I would stay the proceedings generally.

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