Complainant

Respondent

Parties

Olumide  Smith

Her Honour Judge Catherine Murphy

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00015068-001

29/09/2017

The complainant alleges that the judge named in the complaint, the Hon Judge Catherine Murphy, subjected him to harassment, discrimination and victimisation on the grounds of his race in the course of Circuit Court proceedings.

Full details of the allegations are set out in the complaint form, specifically in Form ES 1 which was attached to the complaint.

The complaint relates to the conduct of a court hearing and various actions by the judge.

The complainant states that this means he has been discriminated against by a person, organisation, company who provides goods, services or facilities contrary to the Equal Status Act, 2000.

The complaint is made against the respondent in her capacity as a Judge of the Circuit Court and the complaints arise from interactions during the hearings.

The complainant relies upon the Equal Status Acts 2000-2015 to ground his complaints against the Judge who the complainant states is a person, organisation, company who provides goods, services or facilities and that when providing that service he was discriminated on the ground of race.

A preliminary issue arises as to whether the complaint is properly within jurisdiction.

The complainant relies upon the Equal Status Acts 2000-2015 to ground his complaints against the Judge who the complainant states is a person, organisation, company who provides goods, services or facilities and that when providing that service he was discriminated on the ground of race.

Section 2 of the Equal Status Act 2000 as amended defines a service as:

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies;

In its reply to notification of the complaint the Courts Service of Ireland made the following points.

All judges, including the named respondent are judicial office holders appointed by the President of Ireland in accordance with Bunreacht na hÉireann, (The Constitution of Ireland).

Without commenting on the allegations made by the complainant judges are independent in the exercise of their function under the Constitution and in its submission may not be the subject of proceedings under the Equal Status Act 200 in respect of the exercise of those functions

The matters complained of relate to the conduct of court proceedings and they do not constitute a service as defined under the Equal Status Act 2000, as amended. This claim is misconceived as it is incorrectly based in law.

Furthermore, the exercise of judicial decision making is immune from suit.

In Kemmy v Ireland [2009] IEHC 178 the principle of Judicial Immunity and its purpose was comprehensively addressed:

'This freedom from action and question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be.'"

30.

In Desmond & Anor v. Cornelius Riordan [2000] 1 I.R. 505, at p. 507, Morris P. stated:

"It is, in my view, well settled that the immunity from suit enjoyed by the judiciary exists not for the benefit of the judge but for the benefit of the community as a whole. This immunity is perceived to be necessary and desirable so that a judge may perform his functions the better, freed of concern that in the course of performing his duties he may defame a third party and be required to be answerable to that party in damages."

31.

(Endorsed by Geoghegan J., in the Supreme Court in Beatty and Beatty v. the Rent Tribunal and Anor [2006] 2 I.R. (S.C.), 191, at 212 where he said: "The immunity of judges is based on public policy considerations.")

32.

In an earlier case, Macaulay & Company Limited v. Wyse-Power [1943] 77 I.L.T.R. 61 at 63, McGuire J. held that:

"The people were entitled to have the opinion of a judge without fear of his words being challenged elsewhere. It was salutatory and beneficial privilege."

Section 22 of the Equal Status Act 2000 as amended provides

‘that the Director may be dismissed a claim at any time if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.’

The alleged conduct which is the subject of this complaint relate to the conduct of a Court hearing.

Judicial decision making is not a service or facility available to the public and does not constitute a service as defined under the Equal Status Act 2000 as amended. The Judge in exercising judicial decision making is immune from suit.

The following appears in ‘The Equal Status Acts 2000-2011, 2012 edition, Judy Walsh, Blackhall Publishing, at page 43:

“Equivalent UK provisions have been subject to fairly extensive interpretation (McColgan, 2005, pp 255-285; Monaghan, 2007, pp 505-508). In a number of cases UK courts concluded that ‘services’ were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country’s non-discrimination legislation.”

This claim is misconceived as it is incapable of achieving the desired outcome and the matter complained of is not a service as defined under the Act. 

I find that I have no jurisdiction to investigate this complaint as the matters complained of are not properly before me.

This complaint relying upon the Equal Status Acts to bring an action against a Judge arising from alleged unfair treatment in the course of Court proceedings is not properly before me.

Section 22 of the Equal Status Act 2000 as amended provides for a complaint to be dismissed at any time if an opinion is formed that the complaint is misconceived.

As I have formed the opinion that the complaint is misconceived pursuant to section 22, I dismiss complaint CA-00015068-001, and determine that I have no jurisdiction to investigate and adjudicate on the matter.

Therefore, I find that the complaint is misconceived and dismiss the complaint.

Judicial Immunity, Misconceived complaint.