High Court: Judge refuses to grant Isaac Wunder order sought by Commissioner of An Garda Síochána
In a long-running dispute involving a former member of An Garda Síochána who complained of bullying and sexual harassment in 2009, Mr Justice Senan Allen has granted an order declaring that the former Garda cannot re-litigate claims already dealt with in the superior court but has refused much broader orders sought by the Commissioner of An Garda Síochána.
Included in the application to strike out the proceedings, the Commissioner sought an Isaac Wunder order; however, Mr Justice Allen said the action was not entirely frivolous or vexatious, and such an order was therefore not appropriate.
Marie O’Reilly joined An Garda Síochána in 1994. She served in Dun Laoghaire and Cabinteely Garda Stations until 1999, she was transferred to Garda Headquarters until January 2006 when she requested a transfer to Ballymote Garda Station, and in September 2006 she was transferred to Manorhamilton Garda Station.
From March 2008 to December 2009, Ms O’Reilly was on certified sick leave – after that, she did not submit medical certificates and was removed from the payroll with effect from 1 January 2010.
In December 2009, Ms O’Reilly made a formal complaint of bullying and harassment and sexual harassment against fifteen members of An Garda Síochána based at Ballymote and Manorhamilton Garda Stations. The complaint ran to 90 pages. A Chief Superintendent investigated her complaint; however, it was not upheld, and Ms O’Reilly did not challenge the validity of the decision.
Investigation of Ms O’Reilly’s conduct
In May 2013, a Superintendent was appointed to investigate Ms O’Reilly’s continued absence without leave from 7 March 2012 to 23 May 2013. Ms O’Reilly was notified of this investigation under the Garda Síochána (Discipline) Regulations 2007, but she did not engage with it. When the report of this investigation was made, a board of inquiry was scheduled to take place in June 2014 to determine whether Ms O’Reilly’s conduct amounted to a breach of discipline. On Ms O’Reilly’s application, the inquiry was adjourned until 24 July 2014. On this date, Ms O’Reilly applied to the High Court for an interim injunction to restrain the inquiry - the High Court refused to grant an interim injunction but did give Ms O’Reilly liberty to effect short service of a motion for an interlocutory injunction.
The Inquiry proceeded without Ms O’Reilly’s attendance. It recommended that she be dismissed, and in September 2014 Ms O’Reilly was given her notice. Thereafter, Ms O’Reilly exercised her right under the Garda Síochána (Discipline) Regulations 2007 to appeal the decision.
The 2014 proceedings
Meanwhile, Ms O’Reilly was given leave to amend her plenary summons issued on 24 July 2014.
In these proceedings, Ms O’Reilly maintained that the Commissioner of An Garda Síochána had failed to investigate the complaints she had made in December 2009 and had impermissibly failed to transfer her to a Garda station where she would not be subjected to the impugned conduct.
Ms O’Reilly sought orders to, inter alia, restrain the hearing of the inquiry until she had possession of her Garda Personnel and Medical File.
In April 2017, Mr Justice Tony O’Connor rejected the claim, and in the Court of Appeal in February 2018, Ms Justice Mary Irvine dismissed the appeal stating that it was one of the saddest cases to come before the Court of Appeal since it was established.
The present proceedings
The present proceedings arose in the context of Ms O’Reilly’s appeal against the decision of the board of inquiry. The Appeal Board was fixed for hearing in June 2018; however, it was relisted for December 2018 and adjourned until January 2019.
The day before the Appeal Board was scheduled to sit, Ms O’Reilly applied ex parte to the High Court for an interim order restraining the appeal from going ahead. The order was granted, and thereafter the Commissioner of An Garda Síochána brought an application for an order pursuant to Order 19, rule 28 of the Rules of the Superior Courts striking out the plenary summons on the grounds that it failed to disclose a reasonable cause of action.
Alternatively, the Commissioner sought an order pursuant to the inherent jurisdiction of the court dismissing the action on the grounds that it is an abuse of process because the issues raised are res judicata.
Furthermore, the Commissioner also moved for an order restraining Ms O’Reilly from bringing any other proceedings before the High Court or any other court in the State in respect of disciplinary proceedings commenced pursuant to the Garda Síochána (Discipline) Regulations 2007 without the prior permission of the court (i.e. an Isaac Wunder order).
Mr Justice Allen said, firstly, that he could not be satisfied that Ms O’Reilly’s summons did not disclose a cause of action. Considering Aer Rianta cpt v Ryanair Ltd  1 IR 506, Mr Justice Allen said Order 29, rule 28 only applied where the striking out of an entire pleading is sought – and that this was not such a case.
Mr Justice Allen also said that dismissing the action on the grounds of res judicata was not appropriate. The complicating factor here was the further disciplinary proceedings which had been initiated or revived against Ms O’Reilly since the judgment of the Court of Appeal had been delivered in February 2018. In particular, Mr Justice Allen noted the 2010 and 2011 inquiries and whether Ms O’Reilly was precluded from complaining about their revival – as opposed to their initiation.
With the caveat that he knew “very little about the 2010 and 2011 inquiries”, Mr Justice Allen said it appeared that if Ms O’Reilly’s appeal were to fail, they would be moot. On the other hand, if Ms O’Reilly were to be successful in her appeal, “the issue would then arise as to whether she should face disciplinary inquiries, perhaps from scratch, into earlier periods of a more or less continuous absence from duty. In the meantime, [Ms O’Reilly’s] ability to focus on her appeal would not be helped if she was attempting to engage in other investigations or inquiries”. Mr Justice Allen concluded that any case Ms O’Reilly might make concerning the revival of those inquiries could not be res judicata.
Finding that the Commissioner had failed to satisfy the Court that Ms O’Reilly’s action was frivolous or vexatious in its entirety, Mr Justice Allen also refused to make an Isaac Wunder order.
Mr Justice Allen made an order declaring that Ms O’Reilly was not entitled to re-litigate any issue arising from the disciplinary proceedings initiated in May 2013 up to and including the reconvening of the Appeal Board, and not entitled to seek to restrain the Commissioner from proceeding with the hearing of Ms O’Reilly’s appeal to the Appeal Board.
Discharging the order made in the High Court, Mr Justice Allen made an order refusing Ms O’Reilly’s motion for an interlocutory injunction.
- by Seosamh Gráinséir for Irish Legal News
© Irish Legal News Ltd 2019