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Fitzgibbon v AG [2001] IESC 207 (8 June 2001)

THE SUPREME COURT

No. 148/01

Keane J.

Denham J

Murphy J.

BETWEEN;

JOHN FITZGIBBON

PLAINTIFF/APPELLANT

and IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Ex tempore Judgment delivered by Mrs. Justice Denham on the 8th day of June. 2001.

I am in complete agreement with the judgment of the Chief Justice. I add merely a few words. This is an appeal ex parte from a refusal of the High Court (Murphy J.) on Wednesday 6th June, 2001, to grant an injunction to restrain the holding of the referenda on Thursday 7th June, or to grant an injunction to restrain the counting of the votes of such referenda.

The High Court refused the first injunction sought on the basis that the poll was already taking place on the islands and had been taken in relation to postal votes. The second injunction was refused on the basis of the balance of convenience, damages being an adequate remedy and the lack of a fair issue to be tried.

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The applicant has appealed in person against the said decision - the second injunction being the only issue, the referenda having now taken place. The applicant appealed on the grounds:

"I contend that-

1. as explained to the court I couldn't present a case with any cogency.

2. the case is so complex that I would need to call a range of expert witnesses.

3. if the count proceeds and the result is announced, it will be nearly impossible, if not wholly so, to get a court to reverse the result regardless of the case.

4. the balance of convenience lies in favour of granting the injunction as grave and complex issues are at stake for me, and more importantly for the Irish people. the citizens of the European Union and the applicant countries. There is no urgency in declaring a result.

5. natural justice and my right to equality before the law is being infringed by, when not having the financial resources to engage legal assistance to represent me in such complex issues, I am denied legal aid. I tried every avenue known to me to get legal aid twice, and would most likely become bankrupt if I lost a complex case like this in the higher courts, which I very likely would.

6. that many of the points I should have mentioned in the High Court weren't said as I got a mental block and couldn't even respond adequately to Justice Murphy's questions which, otherwise, would have been helpful. For example I meant to ask the court to make a statement on the probability of an untrained person being able to adequately represent himself and, if an expectation existed that he could do so why legal aid is given in minor criminal cases, in family law matters and, in the various tribunals to participants of far greater means.

I believe the Hamilton conclusion (in McKenna v An Taoiseach (no 2)1995 that "articles 46 and 47 of the constitution and the referendum act of 1994 showed that it was the people's decision and there's (Sic) alone to amend or not the constitution and that no interference with that process could be permitted." My appeal to the court is to intervene to prevent unjustified interference by An Taoiseach and Government ministers and others in the conduct of the referenda by lending undue weight to one side of the argument by reason of their status, access to media etcetera."

In essence the applicant submitted that the referenda have been conducted in breach of the rights of the citizens. On the facts alleged the applicant has not even met the test as stated in Campus Oil Limited v. The Minister for Industry and Energy [1983] I.R. 83. However, this

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application is not a commercial matter, it seeks to restrain the counting of the votes of the referenda. The order sought is to restrain an exercise in direct democracy, to intervene on the basis of the alleged actions of the executive. In all the circumstances it is not apparent that the court has jurisdiction in this application.

I would dismiss the appeal.