Burke - v - Judge Fulhan anorNeutral Citation (2010) IEHC 448 High CourtJudgment was given on November 23rd, 2010, by Ms Justice Mary Irvine.
Judgment
A Co Tipperary farmer who had unsuccessfully taken seven sets of judicial review proceedings in the High Court challenging proceedings against him in the District and Circuit Court had an Isaac Wunder order imposed on him, preventing him from taking further such proceedings without leave from the president of the High Court.
Background
John Burke is a farmer from Emly, Co Tipperary, who was convicted in the District Court of a number of offences under the Protection of Animals Acts, the Control of Horses Act and the Control of Dogs Act. His conviction was upheld in the Circuit Court.
In these proceedings he claimed he had been denied fair procedures in the Circuit Court on 19 grounds, including that the court had failed to compel the attendance of certain witnesses he had sought; that the State did not provide a stenographer; that he was restricted in his right to cross-examine witnesses; that he was precluded from introducing certain documentary evidence; that the trial judge did not understand the nature of the evidence; that errors of law were made and that the judge made findings unsupported by the evidence.
Although he had been granted legal aid in the Circuit Court, Mr Burke represented himself there and in the High Court.
Ms Justice Irvine rejected his claim that the finding of the Circuit Court should be quashed. She pointed out that an order of certioraricould not be used as a method to appeal decisions of a lower court or as a means of re-embarking on the evidence.
Referring to his specific complaints, she found he had not shown how the absence of the purported witnesses affected the trial; there was no obligation on the State to provide a stenographer, who played no part in the trial; he had cross-examined the State’s two witnesses for 6½ and four hours respectively; the documentary evidence he sought to introduce consisted of undated photographs; and there was no evidence that the judge had made errors of law or findings unsupported by the evidence.
Commenting on these claims, she said: "The applicant has no bona fideclaim that fair procedures were not adopted by the Circuit judge. The applicant appears to have been afforded tremendous latitude in terms of the manner in which he was permitted to conduct his defence."
Isaac Wunder order
Ms Justice Irvine also issued that day three other judgments relating to unsuccessful judicial review proceedings initiated by Mr Burke and referred to two motions in yet another set of proceedings before her, along with two sets of judicial proceedings heard by Mr Justice John Edwards.
“The applicant has an established pattern of seeking to use proceedings by way of judicial review in the High Court as a method to frustrate in the first instance the orderly conclusion of proceedings in a court of primary jurisdiction and, if he does not succeed in that regard, to use the same procedure to seek to quash any ultimate adverse finding or conviction as may follow,” she said.
Her experience of the proceedings she had heard, along with those heard by Mr Justice Edwards, “demonstrate that the applicant has not only a seemingly inexhaustible appetite for litigation which is without merit but that he harbours a deliberate and sustained intention to thwart the administration of justice”.
She outlined the grounds for the making of an Isaac Wunder order, which include the bringing of an action to determine an issue already determined; where it is obvious that an action cannot succeed and would lead to no possible good; actions brought for an improper purpose including harassment of another party; the rolling forward of issues into subsequent actions; the whole history of the matter; the failure to pay the costs of previous unsuccessful proceedings; and the conduct of a party who persistently pursues unsuccessful appeals.
She examined the history of the other actions taken by the applicant, including a challenge to a term of imprisonment imposed by a district judge who directed that he receive psychiatric treatment while in prison. She said that this did not form any part of the sentence and was severable from it, so the judge did not act ultra viresin imposing the sentence.
She said the proceedings she examined in detail satisfied her that the applicant fell into the category of applicant described in the case-law on Isaac Wunder orders.
“His conduct is only consistent with a deliberate and sustained intention to thwart the administration of justice and designed to make it impossible for judges in the district and circuit courts to deal with cases concerning him which are presently pending before them,” she said.
She added that he had adopted a “divide and conquer” technique in his judicial review proceedings, bringing them before different judges and not making each judge aware of the other sets of proceedings.
While the jurisdiction of the court to impose Isaac Wunder orders should only be invoked sparingly, she was satisfied it was now necessary to take action to protect the court’s processes from abuse.
Accordingly, in addition to dismissing his application in this case, she imposed an order restraining him from instituting any proceedings in any jurisdiction, at any level of the courts, against any judge, the DPP, any member of the legal profession or government minister, without leave of the president of the High Court.
The full judgment is on courts.ie
Kieran Kelly BL, instructed by the Chief Prosecution Solicitor, for the State; Mr Burke acted for himself.