The High Court has declined a judicial review challenge to a barring order that had expired more than two years before the application was brought.
C.C. sought to have the order quashed, arguing that he had not been notified of the hearing at which it was made and that the process breached his right to natural and constitutional justice. The order was made by the Dublin District Court on 1 February 2001 and barred him from the former shared home for three years. It also prohibited violence, molestation and attending at or near the residence of T.C. or her dependants.
In a judgment delivered on 28 April 2006, Mr Justice John MacMenamin refused the application. He found that the order had expired on 31 January 2004, and that quashing an order no longer in force would serve no useful purpose. The court declined judicial review; it did not quash the order or determine that it had been invalid when made.
The judge also relied on the delay in bringing the case. Leave to seek judicial review was sought in June 2004, more than three years after the order. The judge found no sufficient evidence to justify extending the time limit, including in relation to the applicant’s account of illness. He noted that the applicant had become aware of the order at the latest when arrested in July 2001 over an alleged breach, and that he had legal advice during subsequent proceedings.
The applicant said he had pursued an appeal concerning the barring order, but that it was struck out. The judgment records that the reasons for this and for the later withdrawal of an appeal against his conviction were not adequately explained. The judge considered that, after engaging with the criminal proceedings on legal advice, the applicant had waived or abandoned his natural justice and constitutional rights insofar as applicable.
The judgment discussed Supreme Court decisions concerning proof of service and the serious consequences of interim barring orders made without a defendant present. But the judge distinguished this case, citing the expired order, the unexplained delay, the applicant’s conduct and gaps in the evidence. The applicant had not been granted leave to challenge his criminal conviction or the earlier protection order, and the court’s decision concerned only the judicial review application before it.