I can understand the motivation for these amendments. However, there seems to be a misapprehension regarding the applicant at risk. The proposers appear to believe the applicant to be at risk from his or her own legal advisers. Any legal adviser will inquire of a judge when a case is to be returned to. In any application for an interim or interlocutory order a legal adviser who sees that the Oireachtas has now provided that the order will lapse in eight working days will inquire of the judge when the matter will next be in court. Otherwise the adviser has totally failed to attend to the requirements of his client by ensuring the matter is kept alive before the court.
I am unable to accept these amendments, although I understand the motivation for them, because in entertaining an application of this type the court will, as a matter of practice, fix a return date. This is not a matter which requires legislation. This legislation will impose a limit of eight working days. A court which has made an order of this character will, clearly, at the same time make an order as to when the matter is to be returned to the court within that period.
As Senator Terry mentioned, in some provincial locations the venue may have to change because the judge assigned to the district may not be sitting in the same venue within eight days. It is impossible within the judicial economy of Government to provide otherwise because the sittings are fixed for the various venues within the district and the judge will have to fix the return date for a different venue within his or her District Court area.
The amendments are not necessary. They seem to be based on the premise that a court will wilfully allow an order to lapse for want of a hearing or that the matter will be lost sight of by the court under pressure of other business.
I appreciate Senator Henry's intervention as well but often cases seem to get lost in the court. That the Oireachtas is now providing for a very definite time limit on these orders ensures they cannot be lost, because they are lost after eight days unless the necessary application is made. It is envisaged that the applicant, or his or her advisers, will at the time of the application fix a return date. Not all applicants have legal representation – some appear in person – but judges are always mindful of the fact that they have a duty to assist a litigant and will naturally advise the litigant that the order is of only eight days duration and that they must come back to court and serve the necessary documentation on the other side.
What is at issue in this legislation and in the Supreme Court decision is the service of proceedings. It is common in civil proceedings for proceedings to be taken by one side and to obtain an order ex parte and the court always insists that the proceedings should be served as quickly as possible on the other side. Under the legislation I envisage a similar practice developing where the court will advise the applicant to serve his or her papers as soon as possible and, in the event of renewal of the order, he or she should be present at a sitting of the court within X number of working days.
This matter refers back to the earlier amendment, which was pressed, about the working days. That is the reason we considered it necessary to provide this framework of at least eight working days and not let time be lost because of the incidence of public holidays, Saturdays or Sundays. There has to be a reasonable period for the applicant to serve the papers on the respondent and for the respondent to have an opportunity to turn up and contest the case.
I appreciate in legislation of this character there is an anxiety to ensure every contingency is dealt with. The normal procedure for contingencies of this type is that if there is any particular difficulty it is dealt with by a rule of court, made under the relevant rules – the rules of the District Court or the Circuit Court where the rule making committees would draw up a specific procedure.
The intention of the Oireachtas is made clear enough in the measure before the House. These orders lapse after eight working days. I am satisfied the courts will be mindful of their responsibilities to arrange their business in such a way that their orders do not lapse because a hearing within the period of validity is not fixed. With regret I cannot accept these amendments.