The Supreme Court has set aside a High Court costs order against District Judge Cormac Dunne, ruling that he had not been given notice that an order might be made against him. It remitted the costs question to the High Court for determination.
The appeal concerned costs arising from judicial review proceedings brought by Brendan Kilty over orders made during Campion Property Consultants Limited’s application to renew its auctioneers’ licence. The High Court had found objective bias based on non-disclosure of a professional relationship and quashed the relevant orders. It made no finding of subjective bias.
Judge Dunne had not participated in the judicial review hearing. A year earlier, the High Court had directed that the case proceed without his participation at that time. At the hearing, the court made costs orders in favour of both Kilty and Campion Property against the judge. The Supreme Court judgment records that the High Court judge was not reminded of the earlier direction and was under a misapprehension that Judge Dunne had simply chosen not to participate.
The Supreme Court held that a court should not make an adverse order against an absent or unrepresented party unless that party has notice of the application and the potential order. It said the failure to remind the High Court of its earlier direction contributed to the procedural problem. The Court stressed that a party who has notice cannot prevent an adverse order merely by not attending; the issue is whether adequate notice was given.
The dispute also involved a warning note placed on the District Court file and an “Isaac Wunder” order made against Kilty and one of the original objectors. Those matters emerged during the judicial review hearing. The High Court had quashed the further orders as ultra vires, after allowing an amendment to the grounds on that point.
Kilty’s counsel urged the Supreme Court to order further discovery and review earlier authority on judicial immunity from costs. The Court declined to conduct a fact-finding inquiry, saying such matters should be addressed in the High Court as the court of first instance. No application had been made in the judicial review to amend the grounds to seek costs personally against Judge Dunne, and there was no cross-appeal or notice to vary.
The Court expressed no further view on the scope of judicial immunity. It allowed the appeal and remitted the costs question to the High Court, leaving any further issue, including the extent of any immunity, to be determined there in the first instance.