THE SUPREME COURT
Denham J.
McGuinness J.
Geoghegan J.
307/99

BETWEEN/

ADRIAN O’BRIEN

Applicant/Respondent

and

DISTRICT JUDGE MARY O’HALLORAN,
THE DIRECTOR OF PUBLIC PROSECUTIONS,
THE MINISTER FOR JUSTICE, EQUALITY AND
LAW REFORM, IRELAND AND THE
ATTORNEY GENERAL

Respondents/Appellants

Judgment delivered by Mr. Justice Geoghegan on the 29th day of November 2000 (nem. diss.)

This is an appeal from an order of the High Court (Kearns J.) granting by way of judicial review an order of certiorari in respect of an order made by the first-named respondent, dated the 24th of November, 1998 at Abbeyfeale District Court convicting the [*2] applicant/respondent on the appeal of an offence under s. 49(2) and 6 (a) of the Road Traffic Act, 1961 as inserted by s. 10 of the Road Traffic Act, 1994. The order was granted in the following circumstances.
             
	A summons purporting to be issued under the Courts (No. 3) Act, 1986 had been served on the applicant returnable for Abbeyfeale District Court on the 23rd of September, 1998. The summons, however, was headed “Listowel Area”. Due to the bad condition of Listowel Courthouse the District Court has not sat in Listowel since the 22nd of July, 1998. The summons was issued on the 8th of September, 1998. From and after the 22nd of July, 1998 the Listowel Court area lists were taken in Abbeyfeale. This was originally done on an informal basis but it was formalised by an order made by the Minister for Justice, Equality and Law Reform on the 7th of October, 1998 and entitled The District Court Districts and Areas (Amendment) and Variation of Days (No. 5) Order, 1998 (S.I. No. 376 of 1998). That order was made pursuant to s. 26 of the Courts of Justice Act, 1953 which was carried over by the Courts (Supplemental Provisions) Act, 1961. To quote the explanatory note on the Statutory Instrument:

“This Order provides for the abolition of the District Court area of Listowel and the amalgamation of the District Electoral Divisions which comprise that area with the Disitrict Court area of Abbeyfeale.”
              
	For the purposes of this appeal it is not necessary to make further reference to this order other than to Article 6 which does assume considerable importance in the case. That Article reads as follows:

“Business transacted in the District Court which is initiated and not completed before the commencement of this order shall [*3] be continued and completed as if this order had been in force at the time at which such business had been initiated.”
               
	 On the return date on the summons i.e. the 23rd of September, 1998 the applicant’s solicitor, Mr. Charles J. O’Connor, from Newmarket, Co. Cork appeared in court with the express purpose of contesting jurisdiction. He made the objection that the summons had issued out of the Listowel District Court Area and in those circumstances it must be brought, heard and determined within the District Court Area of Listowel. The first-named respondent who was the District Court judge rejected his submissions on the grounds that the summons issuing out of the Listowel Court area had clearly stated that it was for hearing at a sitting of Listowel District Court to be held at Abbeyfeale. There is no question but that at that point in time the District Court judge, rightly or wrongly, assumed jurisdiction. But the Garda Superintendent then requested an adjournment because a garda witness had only just returned from sick leave that day and was not ready to proceed with the case. The applicant’s solicitor, Mr. O’Connor, objected to the adjournment on the grounds that he had travelled especially to Listowel District Court for the case. The judge, however, considered that she would have to facilitate the guard and she went on to welcome him back to duty. From the time the solicitor objected to the adjournment, the District Judge having assumed jurisdiction, he was participating the case on behalf of his client and his client was then properly before the Court. It is irrelevant for this purpose whether the hearing of the complaint had technically begun or not. The applicant was properly before the Court for the purpose of being deemed to have notice of the resumed date of hearing and that that hearing would be in Abbeyfeale. Although the case was adjourned until the 24th of October, 1998 it was further adjourned on that date to the 27th of November, 1998 because of the unavailability of a different guard. The applicant’s solicitor was again present and he says [*4] in his affidavit that he “did not consent to the adjournment”. By that date the Statutory Instrument referred to above was already made.
              
	When the case was taken up on the 24th of November, 1998 Mr. O’Connor raised the jurisdiction point again but was informed by the respondent that she had already ruled on the matter and that she would hear the case. I think that she was clearly correct in taking the view that she had already made the ruling. The hearing proceeded and the applicant was duly convicted and penalties imposed. Most of the High Court judgment is taken up with the question of jurisdiction of the first-name respondent independently of Statutory Instrument 376 of 1998. The view taken by the learned High Court judge was essentially the same as that taken by Hanna J. in The State (Reilly) v. Circuit Court Judge of Midland Circuit and the District Justice for Portlaoise [1936] I.R. 377. Hanna J. had held that as a consequence of s. 47 of the Court Officers Act, 1926 the exercise of the jurisdiction of the District Court was based on District Court areas rather than districts. I intend now to address this question which is fundamental to the applicant’s case. But I must first explain how the problem arises. The present District Court was established by the Courts (Establishment and Constitution) Act, 1961 and its jurisdiction is governed by the Courts (Supplemental) Provisions Act, 1961. By s. 33 of the latter Act all the jurisdiction of the former District Court was vested in the new District Court. The jurisdiction of the former District Court was governed primarily by the Courts of Justice Act, 1924. S. 32 of the Courts (Supplemental Provisions) Act, 1961 provided in subsection (1) the following:

“The areas created under section 21 (repealed by this Act) of the Act of 1953 shall be the District Court areas for the purposes of the District Court”. [*5]

It is to be noted however that s. 21 of the Courts of Justice Act, 1953 was repealed by the 1961 Act. That section had given the Minister considerable powers effectively to order where the District Court was to sit for particular types of cases. In this respect the section had replaced s. 47 of the Court Officers Act, 1926, which was the section which featured in the O’Reilly case. That section though not identical was along similar lines to s. 21 of the 1953 Act. If Hanna J. was correct in holding that a District Judge must exercise his jurisdiction in a particular court area rather than in a particular district then the same reasoning would have applied during the period 1953 to 1961. There is considerable force in the argument put forward by counsel for the State authorities that the legislative scheme since 1961 is different and that even if the decision of Hanna J. in the O’Reilly case was correct it has no application to the post-1961 situation. I do not find it necessary to decide that point however because I consider that the decision of Hanna J. in O’Reilly was wrong and that both in relation to the former District Court and the present District Court the exercise of jurisdiction has always been based on districts and not on areas. In so far as areas have been prescribed for particular types of work it is for the purpose of the convenient regulation of the courts’ business. But provided the District Court Judge was exercising his or her jurisdiction within his or her own district the failure to exercise it in a prescribed area was and is at most an irregularity and not a jurisdictional error. The District Judge has full powers to waive any irregularity if it appears reasonable and appropriate to do so.

              In arriving at this view I start with the Courts of Justice Act, 1924. I should perhaps mention in passing that I consider the provisions of the District Justices (Temporary Provisions) Act, 1923 to be irrelevant. In so far as that Act is referred to in later Acts it is only for the purposes of incorporating something mentioned in that Act. The 1923 Act was essentially a temporary Act pending the proper creation of a national District Court. It [*6] regularised appointments already made of resident magistrates under the Constabulary (Ireland) Act, 1836 and styled “District Justices”. The 1923 Act itself provided for “Magistrates” with the title of “District Justices”. Except in so far as there was express carry over, the old regime effectively came to an end with the Courts of Justice Act, 1924. Jurisdiction which before that Act had been vested in particular Justices became vested instead in a national District Court styled “the District Court of Justice”. The Act vested the old jurisdiction of the Justices and Magistrates in that District Court and went on to provide in s. 79 that it would be exercised -

“in criminal cases, by a justice for the time being assigned to the district wherein the crime has been committed or the accused has been arrested or resides.”

That section is carried over by the Courts (Supplemental Provisions) Act, 1961.
               
	 I now turn to s. 47 of the Court Officers Act, 1926. That section empowered the Minister to divide districts into District Court areas and to divide districts into different District Court areas for the purposes of different classes of business and the section goes on to provide that the Minister shall appoint one or more convenient places in every District Court area or within one mile of the boundary of such area in which and such and so many convenient days and hours at which the District Court shall be held for the purpose of transacting for such District Court area the business for the transaction of which such area was delimited. Hanna J. in the O’Reilly case seemed to attach significance to the word “delimited”. He held that from and after the passing of the 1926 Act the District Justice had to exercise his jurisdiction within the particular District Court area rather than the district as provided for in the 1924 Act. I cannot imagine that the 1926 Act which was primarily intended to deal with matters of administration and court officers was intended to effect an [*7] amendment of s. 79 of the Courts of Justice Act, 1924. Although many Acts have provisions in them that are not covered by the long title it is of some interest to note that the long title of the 1926 Act was

“an Act to establish and regulate the offices and officers to be attached to the several courts of Justice and the judges of those courts and for other purposes connected therewith.”
           
	  Part I of the Act containing thirty three sections in all, dealt with the officers and registrars etc. of the Superior Courts. Part II contained similar provisions in relation to the Circuit Court. Part III with the possible exception of s. 47 contained similar provisions, in  relation to the District Courts. Part IV contained miscellaneous administrative provisions such as salaries and pensions for officers etc. with the exception of s.65 which may be of some relevance. It reads as follows:

“(1)		Nothing in this Act shall prejudice or affect the control of any judge or justice over the conduct of the business of his Court.

(2)		When an officer attached to any court is engaged on duties relating to business of that Court which is for the time being required by law to be transacted by or before or under or pursuant to the Order of a judge or judges of that Court he shall observe and obey all directions given to him by such  judge or judges.

(3)		All proofs and other documents and papers lodged in or handed in to any court in relation to or in the course of the hearing of any suit or matter shall be held by or at the order and disposal of the judge or the senior of the judges by or before whom such suit or matter is heard.”

	From that summary of the Act it can be immediately appreciated that it would have been a wholly inappropriate vehicle for amending the territorial jurisdiction of the District Court. Unless the wording was compelling in that direction it would be wrong, in my view, [*8] to interpret the section in that way. I cannot therefore accept the reasoning of Hanna J. in the Reilly case.
              
	 Since s. 21 of the Courts of Justice Act, 1953 which is now repealed by the 1961 Act was merely a replacement for s. 47 of the Court Officers Act, 1926, the same reasoning must apply to that section, not because of the type of Act in which it is contained but because of its legislative ancestry.
             
	 It is now important to return to the simple facts of this case. An application was properly made to the District Court Clerk for the Listowel Court Area by Garda Deady for the issue of a summons. As the application was under the 1986 Act the function of the clerk was administrative only. The Courthouse in Listowel was no longer in use and clearly there had been a direction that Abbeyfeale Courthouse was to be used for the Listowel list. The summons issued had to make sense and the District Court Clerk, quite properly in my view, issued a summons which made it clear that the defendant would have to turn up at Abbeyfeale Courthouse but that it would be for a sitting of the Listowel District Court. Listowel was named as the District Court Area.
             
	This procedure could only give rise to a jurisdictional problem if it was the case that the judge had to receive the complaint first in a particular District Court area. But having regard to the views which I have expressed in relation to the O’Reilly case I am satisfied that that is not so and that so long as the alternative venue was within his or her district the matter was in order as far as jurisdiction was concerned. This, of course, does not mean that confusion could not arise and there might be all kinds of obligations under fair procedures for the District Judge to make absolutely sure that a non-appearance by a defendant did not arise from a genuine mistake following on the unorthodox rearrangement. But that is not the case [*9] here. I am satisfied that as far back as the first appearance in September, the District Judge ruled on the jurisdiction point but in so far as the solicitor for the applicant turned up in court on subsequent occasions he was doing so with the knowledge that the Court had already ruled on jurisdiction and that the case was adjourned to those dates. Accordingly, there was no injustice to the defendant in proceeding with the case.
            
	 The District Judge was clearly of the view that as an inherent incident of the exercise of her statutory jurisdiction, she was entitled to make temporary arrangements for the sitting of her court when for one reason or another it was not possible to use the established courthouse. Indeed express statutory support for this view is arguably to be found in section 65(1) of the Court Officers Act, 1926 cited above. However, it is not necessary for the purposes of this appeal, to pronounce on the correctness or otherwise of the judge’s view of her own powers to make temporary courthouse arrangements. For the reasons indicated I am satisfied that the judge in embarking on a hearing of the complaint was acting within jurisdiction.
              
	    Independently, therefore of the Statutory Instrument I consider that the District Judge had jurisdiction. But I would also add that in my view even if there was an irregularity at the 1st September sitting it was completely cured by Article 6 of the District Court Districts and Areas (Amendment) and Variation of Days (No.5) Order, 1998. For the reasons which I have indicated this was, in my view, “business transacted in the District Court”, which was “initiated and not completed” before the commencement of the order and therefore from and after the 7th of October, 1998 it was deemed to be in order. But I believe that the judge would have had jurisdiction even if that Statutory Instrument had not been made. [*10]

There is one other matter to which I will briefly refer. Counsel for the applicant have relied in part on s. 15 of the Courts Act, 1971 which purports to confer power on a district judge to deal with urgent cases of summary jurisdiction in any part of his district. But leaving aside altogether the principle that an earlier Act cannot be interpreted by reference to a later Act there is in my view no significance whatsoever in the wording of s. 15 of the 1971 Act. Having regard to the decision of Hanna J. in the O’Reilly case which had not been overruled the Oireachtas was entirely logical in passing such legislation. It in no way assists the applicant in this case.

             For the reasons which I have indicated therefore I would allow this appeal and substitute for the order of the High Court an order refusing the judicial review sought.