Barry Ward (Fine Gael) | Oireachtas source

I move amendment No. 14:

In page 20, to delete lines 13 and 14 and substitute the following: “(2) An application under subsection (1)may be made ex parteor on notice to the respondent concerned.”.

These amendments relate to section 27, which creates a power for orders to be made. These amendments relate specifically to the mechanics of making those orders. In section 27(1), the power is created for that order to be made on an application before the court. Subsection (2), which is the subject of my amendment No. 14, currently states that such an application shall be made on notice to the respondent concerned. The amendment I am proposing to this section is that an application would be made either on notice to that person or ex parte, that is, without that person. I am suggesting that because the danger with requiring the application to be made on notice to the other party is that it slows down the process. One of the major provisions of these section 27 powers is to create a swift response, where required. My concern is that if there is an obligation on the applicant or the court to take the view that the notice has been effected against the respondent, it can create a block for the hearing of the application and thereby the issuing of the order under section 27.

Amendment 16 is to insert a new subsection (3). The proposal is we would amend subsection (2) to say applications can be made ex parte, that is, without the other party, or on notice to the other party. That would be followed by subsection (3), which states, "The court, on application to it under subsection (1)[which is the section 27 order] for an order under this section may, where it is of the opinion that is necessary and proportionate to do so, require that the application be madeinter partes or on notice to the respondent concerned." That is a saver to cover a situation where perhaps somebody is going in where they should not or where there was a reasonable opportunity for them to put the other side on notice. It is important that, wherever possible, both sides are heard in an application for an order such as this. In fact, we know that in respect of certain other orders, and I am sure the Minister and other Members here get the same complaints I do, it is sometimes the case that the person who is the subject of the order is not aware the application is being made until after the fact. That obviously creates further tension that we do not want to create.

What is important in these section 27 orders is that a flexibility is built in to allow the court to do what it needs to do when it has heard the evidence. I will say two things in that regard. The first is that there is an obligation in the context of an ex parteorder, the uberrima fidesprinciple, that the person who is making that application ex partemust put the full facts before the court, including those facts that are against the making of the order or against the case they are making. The second thing is that with amendment No. 16 and the insertion of subsection (3), we are putting in the hands of the judge or court the power to make a call as to whether the notice should be effected. It is still open to applicants to go in ex parte and say they need an order for particular reasons but the judges can sit back and say they hear what an applicant is saying but want notice to be served to the person who would be the subject of the order. The judge can ask the applicant to give the subject of the order the chance to come before the court. If the subject chooses not to come, a particular view can be taken. However, there should be an opportunity for the subject of an order to come to court and make his or her point of view known, if that is what he or she wants to do. The judge, in his or her experience and professional expertise, will, we hope, know when it is the right time to make that call. My concern about the way subsection (2) is currently drafted is that there is a potential for a mechanism that would allow somebody who did not want an order to be made against him or her - him more often than not - to frustrate the process by avoiding being put on notice, avoiding coming to court and by allowing the person making the application to put that person on notice.The answer to this might well be that there are all types of mechanisms the court can use. It can have substituted service or it can order a service by ordinary post to make that notice easier. Why even have the stumbling blocks? Why not just provide the power for the court to make the order ex parte? Of course it can be undone if a mistake has been made. Why put the stumbling block in place? Why not have a situation where the applicant can go in and get the order but still have in the power of the court the opportunity to say everybody needs to be informed? Amendments Nos. 14 and 16 propose giving greater flexibility to the court to allow a smoother process whereby applicants can get orders faster if that is what is appropriate.