Irish Court of Appeal

APPROVED                                         NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

 

 

High Court Record Number: 2022/4706P

 

Court of Appeal Record Number: 2024/206

 

Neutral Citation Number: [2025] IECA 63

 

 

Meenan J.

MacGrath J.

Collins J.

 

 

BETWEEN/

 

 

GERARD CRAUGHWELL

 

 

PLAINTIFF/ RESPONDENT

 

 

 

- AND –

 

 

THE GOVERNMENT OF IRELAND, IRELAND AND THE ATTORNEY GENERAL

 

DEFENDANTS/APPELLANTS

 

 

 

JUDGMENT of Mr. Justice Charles Meenan delivered on the 18^th day of March 2025 

Background: -

1.             The respondent (Senator Craughwell) is an elected member of Seanad Éireann.  He is a past President of the Teachers Union of Ireland and has served in the British Army, Royal Irish Rangers and the Permanent Defence Forces.  Senator Craughwell has been a member of a number of Oireachtas committees, including the Foreign Affairs and Defence Committee. 

2.             In these proceedings Senator Craughwell claims that the first named appellant, the Government of Ireland, has entered into an agreement with the Government of the United Kingdom of Great Britain and Northern Ireland under which UK military aircraft are permitted to enter Irish airspace to intercept and/interdict aircraft that pose a threat to Ireland and/or the United Kingdom.  In this judgment I shall refer to the appellants as "the State".

3.             This is an appeal from the judgment and order of the High Court (Cregan J.) refusing to consider a preliminary issue that had been previously directed by Mulcahy J.

The proceedings: -

4.             Senator Craughwell issued a plenary summons on 12 September 2022 followed by the delivery of a statement of claim of even date.  The contents of paras. 14 and 21 of the statement of claim are central to the case being made by Senator Craughwell.

"14.  Subsequent to the attacks in the United States of America on 11 September 2001, the defendants, and each of them, by themselves, their servants or agents - and the United Kingdom of Great Britan and Northern Ireland, their servants or agents, made an agreement ("the Agreement") which allows, causes, or permits UK military aircraft from the Royal Air Force ("RAF") to enter Irish airspace. Pursuant to the agreement the RAF has permission to fly into Irish airspace and intercept and/or interdict aircraft that poses a threat to Ireland and/or the United Kingdom of Great Britain and Northern Ireland."

and: -

"21.  The agreement made between Ireland and the United Kingdom of Great Britain and Northern Ireland is an international agreement, and it has not been laid before Dáil Éireann."

Senator Craughwell seeks a number of reliefs, including: -

"A declaration that the agreement made between Ireland and the United Kingdom of Great Britain and Northern Ireland causing, permitting and/or otherwise allowing British military forces, in particular the RAF, to fly armed aircraft in the national airspace of Ireland for the purpose of interdiction and/or interception of aircraft within Irish sovereign airspace is in breach of Article 29.5.1 of the Constitution of Ireland insofar as it has not been laid before Dáil Éireann."  

5.             Although Senator Craughwell in the statement of claim alleges breaches of other Articles of the Constitution, the gravamen of his claim is that the "agreement" with the UK is an "international agreement" for the purposes of Article 29.5.1 of the Constitution, which provides: -

"Every international agreement to which the State becomes a party shall be laid before Dáil Éireann."

It follows that Senator Craughwell maintains that the "agreement" which he alleges exists between the State and the UK has the legal characteristics of an "international agreement", being a binding agreement between States which is legally enforceable. 

6.             There is little by way of detail in the statement of claim concerning the "agreement" alleged.  There is no detail concerning the date or dates when this "agreement", or possibly "agreements", was entered into or whether the "agreement" is in writing, oral or partly oral and partly in writing.  In support of the existence of such an "agreement", para. 29 of the statement of claim refers to a reply given by the then Taoiseach in Dáil Éireann on 16 November 2005: -

"It is our client's (Senator Craughwell's) understanding that such an agreement exists between Ireland and the United Kingdom.  Our client's belief is supported by a reply given by the Taoiseach.  In a Dáil Éireann debate on Wednesday, 16 November 2005 (Vol. 610 no. 2) the Taoiseach in reply to a question from Deputy Enda Kenny, which asked inter alia: 'would the RAF have to be called in from either Northern Ireland or Britain to intercept a hijacked aircraft?', the Taoiseach replied: 'On the first question, there is cooperation and a pre-agreed understanding on those matters,  and as leader of the opposition I can bring Deputy Kenny through that at some stage."

7.             A full defence was delivered by the State, following a motion for judgment in default, on 13 February 2023.  The defence pleads, inter alia,: -

"2.    The exercise of the executive power of the State in relation to the external security and external relations of the State falls within the exclusive power of the first named defendant under Articles 28 and 29 of the Constitution of Ireland, 1937."

and: -

"4.    Save in cases of clear disregard of the provisions of the Constitution, the exercise by the first named defendant of the executive power of the State in relation to the external security and external relations of the State is not justiciable and/or otherwise amenable to, or appropriate for, review by the courts .."

arising from this it is pleaded: -      

"10.  Without prejudice to the generality of the foregoing, if and insofar as the plaintiff invites this court to examine alleged material relating to the exercise by the first named defendant of the executive power of the State relating to the external security and external relations of the State, the defendants reserve the right to object to same on the basis that the examination and/or disclosure of such alleged material would risk endangering such security and/or undermining the State's international relations."

8.             The defence neither confirms nor denies the existence of the "agreement" and specifically denies any breach of Article 29.5.1 of the Constitution: -

"24.  Without prejudice to the generality of the foregoing, it is specifically denied that:

(i)      the duty to lay an international agreement in which the State becomes a party before Dáil Éireann under Article 29.5.1 of the Constitution arose

(ii)     the first named defendant acted in disregard of its powers and duties (whether deliberately or otherwise), or acted outside its competence or free from the restraints placed on it, under the Constitution."

On the State's obligation to register any international agreement with the United Nations, the following is pleaded: -

"25.  Further, or in the alternative, where a State, as a member of the United Nations, enters into any treaty or international agreement, that State is obliged to register such treaty or international agreement as soon as possible with the United Nations Secretariat and the United Nations Secretariat shall publish it.  No treaty or international agreement of the kind alleged by the plaintiff has been registered with, and/or published, by the United Nations Secretariat."

9.             On 22 February 2023 Senator Craughwell delivered a reply joining issue with the State on its defence.  This was followed by a notice for particulars and a letter seeking voluntary discovery from the State by Senator Craughwell.  The response of the State was an application for the trial of a preliminary issue.

Application for Trial of a Preliminary Issue: -

10.         By motion dated 27 March 2023 the State sought an order directing a preliminary trial pursuant to O. 25, r. 1 and/or O. 34, r. 2, RSC, of two issues: -

(1)     Is the exercise of the Government's executive power in relation to the external security and external relations of the State justiciable and/or otherwise amenable to review by this Court in the absence of any material facts being pleaded capable of establishing clear disregard of the Constitution?

(2)     Is the exercise of the Government's executive power in relation to the external security and external relations of the State justiciable and/or otherwise amenable to review by this Court in circumstances where the proceedings would require this Court to review matters of external security falling within the scope of the executive power, confirmation or denial of which could risk endangering the security of the State and undermining the State's international relations.

11.         The State's motion was grounded on an affidavit sworn by Ms. Sonja Hyland, Deputy Secretary General (Global Issues), Political Director in the Department of Foreign Affairs.  She deposed at para. 31: -

"31.  Taking all of these considerations together, I say and believe that, in this specific context, the Government is justified in neither confirming nor denying specific matters relating to the external security of the State's airspace, where such confirmation or denial would itself risk endangering the security of the State, its territory and its population, and would undermine the State's international relations with its partners."

Ms. Hyland's affidavit was critical of the lack of detail in the statement of claim and reiterated that the State was aware of its obligations under Article 29.5.1 of the Constitution and under the Charter of the United Nations but these obligations did not arise in the context of the agreement (if any) alleged by Senator Craughwell.

The affidavit concluded: -

"46.  In addition to these general considerations which justify the trial of a preliminary issue, I say and am advised that the trial of a preliminary issue is particularly appropriate and justified in this particular case, bearing in mind the highly sensitive nature of the subject matter of the case and the risks to the security of the State that would arise if the matter were to proceed to plenary hearing without the issue of justiciability being determine (sic) a preliminary matter."

12.         In response, Senator Craughwell filed an affidavit, in the course of which he sought to address criticism concerning the lack of detail of the alleged "agreement" in his statement of claim.  He referred to an answer to a question, apparently arranged by him, given by the UK Minister for the Armed Forces in the House of Commons, an article in The Daily Telegraph by Colonel Richard Kemp and an article in The Times (London). 

13.         The State's motion came before Mulcahy J., who delivered judgment on 12 October 2023 ([2023] IEHC 547).  Mulcahy J., having considered the pleadings, the affidavits of Ms. Hyland and Senator Craughwell and a number of authorities, directed the trial of a preliminary issue pursuant to the provisions of O. 25.1 of the Rules of the Superior Courts (RSC).  With the agreement of both parties, the issue was as follows: -

"Is the exercise of the government's executive power in relation to the external security and external relations of the State justiciable and/or otherwise amenable to review by this court on the basis of the facts as pleaded?"

14.         In directing the trial of the preliminary issue, it is clear that Mulcahy J. had particular regard to the issues Ms. Hyland raised in her affidavit: -

"41.  In my view, the sensitivities identified by Ms. Hyland are a critical factor in determining whether it is appropriate to try a preliminary issue.  In Gilchrist the Supreme Court concluded that the public interests at issue in that case were capable of justifying a departure from the fundamental constitutional value of administration of justice in public.  Given the sensitivity of the issues here, they must equally be capable of supporting an argument that the trial of a preliminary issue is in the interests of justice if that mechanism is capable of avoiding the security risks identified."

15.         In framing the question, it was clear that the Trial Judge was cognisant of the State's contention that the pleadings did not disclose a cause of action: -

"44.  The question is framed with sufficient precision to be capable of a clear answer.  Though couched in terms of justiciability, it raises the question of whether, having regard to the particular subject matter of these proceedings, the plaintiff's pleadings disclose a cause of action at all .."

The Trial of the Preliminary Issue

16.         The trial of the preliminary issue came before Cregan J. who delivered his judgment on 8 July 2024.  The Trial Judge refused to consider the preliminary issue because: -

(i)      the State had not accepted the facts as pleaded by Senator Craughwell;

(ii)     some of the pleas in the statement of claim are either pleas of law and/or mixed pleas of fact and law;

(iii)    evidence is required before a court could come to a conclusion on the relevant matters pleaded by Senator Craughwell.

17.         In the course of his judgment Cregan J. considered the terms of O. 25.1 RSC and a number of authorities.  He referred to Kilty v Hayden [1969] IR 261, where Ó Dálaigh C.J. stated: -

"When Order 25 is contrasted with Order 36 it becomes clear that Order 25 is not providing for the separate trial of issues which are partly of fact and partly of law, but for the separate trial of a net point of law dissociated from issues of fact, that is to say, the point of law must arise on the basis of the facts being as the opposing party in his pleadings alleges them to be." (emphasis added)

and

"I am satisfied that the procedure laid down under Order 25, r. 1, corresponds to the old hearing of demurer, and may not be availed of where the facts giving rise to the point of law are in dispute between the parties." (emphasis added)

18.         The Trial Judge also referred to the decision of Laffoy J. in Dempsey v The Minister for Education and Science [2006] IEHC 183 where an order for the trial of a preliminary issue was refused even though the defendants had accepted the facts as pleaded in the statement of claim. Laffoy J. was of the view that the pleas involved mixed questions of law and fact and the issues of law identified could not be determined as "stand alone" issues of law on the basis of assumed facts.  However, the Trial Judge stated: -

"The principles which are to be applied in considering whether to order the trial of a preliminary issue were recently set out again by the Supreme Court in Campion v South Tipperary County Council [2015] IESC 70.  In that case McKechnie J. (giving the judgment of the court) urged caution in the use of preliminary issue procedure and then summarised the relevant principles to be applied.  I have set out the first two of these below:

(1)     There cannot exist any dispute about the material facts as asserted by the relevant party: such can be agreed by the moving party or by him or her solely for the purposes of the application.

(2)     There must exist a question of law which is discreet and which can be distilled from the factual matrix as presented; there must result from such a process saving of time and cost, when the same is contrasted with any other suggested method by which the issues may be disposed of". (emphasis added)

19.         Having considered the pleadings, the Trial Judge stated: -

"62.       In the present case, I am of the view that the plaintiff has pleaded the material facts of his case with certainty and clarity. There is no doubt what the question at issue between the parties is. The plaintiff has made three fundamental pleas:

(a)     that there is an 'agreement' between Ireland and the U.K. that the R.A.F. has been granted permission to intercept aircraft over the Irish airspace;

(b)     that this agreement is an 'international agreement';

(c)     that the failure to lay this agreement before the Dáil is a clear breach of Article 29.5.1 of the Constitution."

20.         The Trial Judge then considered each of the "material facts" as he had identified them at (a), (b) and (c) above.  On the "agreement", Cregan J. stated: -

"68.  The defendants submit that the plaintiff has not pleaded the alleged agreement with any great particularity. However that cannot be avoided in circumstances where the plaintiff pleads that it is a 'secret agreement' and the defendants themselves refuse to admit or deny whether such an agreement is in existence. However there can be little doubt about the alleged agreement about which the plaintiff is pleading. It is the agreement set out in paragraph 14 of the Statement of Claim and the one referred to by An Taoiseach in the Dáil as set out in para. 29 of the statement of claim.

69.     Indeed the defendants have full knowledge of the alleged agreement. In these circumstances, the allegation that the plaintiff's pleadings lack particulars is without merit."

21.         Referring to the fact that the State, in effect, denied there was any international agreement for the purposes of Article 29 the Trial Judge stated: -

"75.  In these circumstances, another foundational plea, as alleged by the plaintiff, is not accepted by the defendants for the purposes of this application and therefore the defendants' application for a trial of a preliminary issue must fail."

It was clear to the Trial Judge that as the State was neither accepting nor denying that there was any "agreement" nor any "international agreement" he concluded: -

"80.  The defendants have refused to accept, even for the purposes of this application, the plaintiff's pleaded facts on these two foundational issues. In those circumstances there is no agreement between the parties on the material facts relevant to the trial of the preliminary point of law and in those circumstances the defendants' application for a trial of a preliminary issue must fail."

22.         Even though the trial of a preliminary issue had previously been directed, Cregan J. reached his conclusion on the authority of L.M. v Commissioner of An Garda Síochána [2015] 2 IR 45 where O'Donnell J. (as he then was) stated: -

"36.  However, I also consider that a court is entitled, on the hearing of the preliminary issue, to consider if it is an appropriate case for determination by this procedure. If, for example, the court proceeded to hear and seek to determine the preliminary issue after a full and elaborate argument, it would, as I conceive it, still be open to the court to conclude that in the light of the arguments and the matters advanced, that it was not possible to give the sort of clear and unequivocal answer to the issue which would dispose of the case or any issues in the case. Therefore, the case should proceed to trial to have issues of law determined in the concrete and precise circumstances of an individual case. ..  In my view, a court retains power to refuse to determine a preliminary issue if, after careful analysis, it becomes apparent that some aspect of the issue was heavily fact dependent, or that a possible outcome would be so contingent or qualified as to require almost a form of advisory opinion."

Notice of Appeal

23.         The State in its notice of appeal set out some 14 grounds of appeal.  The principal grounds were: -

(a)     That the High Court erred in law in concluding that the preliminary issue was not appropriate for trial as a preliminary issue and had failed to have regard to the basis upon which the High Court (Mulcahy J.) had directed the trial of the issue.

(b)     The High Court failed to have any or any adequate regard to the principle advanced by the State and underpinning its application for trial of the preliminary issue that, having regard to the highly sensitive nature of the issues raised in the proceedings (external relations and external security), the nature of the inquiry being sought from the court, and to the doctrine of separation of powers, there was a greater than usual onus on the plaintiff to plead the material facts with clarity and particularity.

(c)     The High Court erred in failing to find that the pleas made in the statement of claim were bare assertions which were not sufficient to sustain the far-reaching claim made in the proceedings.

(d)     The High Court wrongly characterised the defendant's application appearing to be an application under O. 19, r. 28 RSC to strike out the proceedings on the basis that they did not disclose a reasonable cause of action or were bound to fail.

24.         The State further sought an order that this Court make an order in its favour in terms of the preliminary issue.

Consideration of Appeal: -

25.         In considering the appeal, it is necessary to look at the basis on which the trial of the preliminary issue was directed and the question that was formulated by Mulcahy J.

26.         The preliminary issue was directed under O. 25, r.1 RSC, which provides: -

"Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the judge who tries the cause at or after the trial, provided that by consent of the parties, or by order of the court on the application of either party, the same may be set down for hearing and disposed of at any time before the trial."

This order is clearly directed towards the consideration of a point of law.  For that to be considered, it is necessary to have agreed facts.  This proposition is fully supported by the authorities which Cregan J. referred to, in particular Campion v South Tipperary County Council, referred to above, which makes clear there cannot exist "any dispute about the material facts" or that facts can be agreed for the sole purpose of determining the preliminary issue.   

27.         In this case there were no agreed facts.  Indeed, the State went so far as to submit that there were no facts at all pleaded in the statement of claim but merely assertions.  The State decided that it would not agree facts solely for the purpose only of hearing the preliminary issue.  

28.         Even where the facts are not agreed, it is open to the Trial Judge hearing an application under O. 25, r. 1 RSC to identify what facts are not in dispute for the purposes of the trial of the issue.  This exercise can be carried out by the judge interrogating the pleadings.  Such an approach was taken by Laffoy J. in McCarthy v RSA [2012] IEHC 56.  This case concerned the trial of a preliminary issue on the Statute of Limitations.  The plaintiff sought a declaration that the defendant was obliged to pay a sum due under a policy of insurance owing to the permanent disablement of the plaintiff from all gainful employment.  In directing the trial of a preliminary issue, Laffoy J. interrogated the pleadings to identify what was fact and what was assertion stating: -

".. I cannot see how the assertions made by the plaintiff's solicitor, which I have summarised at para. 3.4 above, which are dressed up as facts, including the assertion that the defendant's obligation under the policy 'are continuing obligations' could be regarded as relevant to the question when the plaintiff's cause of action accrued for the purposes of the operation of the Statute of Limitations..."

 However, Laffoy J. was able to conclude: -

"5.8  While I am acutely conscious of the warnings which have been frequently issued in the past as to the necessity to exercise caution determining whether it is appropriate to direct the trial of a preliminary issue, in this case I believe that there is a discrete issue to be tried and that this is an issue which can be tried on the facts which are not in dispute as set out in the affidavits on this application, which I consider to be the facts relevant to the determination of the issue..." (emphasis added)

29.         It does not seem to me that the approach taken by Laffoy J. was open to Mulcahy J. in the instant case.  At para. 44 of his judgment Mulcahy J. stated: -

"The question is framed with sufficient precision to be capable of a clear answer.  Though couched in terms of justiciability, it raises the question of whether, having regard to the particular subject matter of these proceedings, the plaintiff's pleadings disclose a cause of action at all.  That is a proposition that a defendant is always entitled to test and it seems to me that if the defendants wish to test that proposition by way of trying a preliminary issue, no injustice would be done to the plaintiff as long as he is not placed in a worse position than if faced with an application to strike out his claim.."

I believe that Mulcahy J. was, in effect, stating that he would direct the trial of a preliminary issue under O.25, r.1 RSC even though there were no agreed facts. 

30.         When the hearing of the preliminary issue came before Cregan J. he concluded, what was undeniably the case, that there were no agreed facts.  However, on his interrogation of the pleadings, Cregan J. was of the view that Senator Craughwell had "pleaded the material facts of his case with certainty and clarity" and ".. The allegation that the plaintiff's pleadings lack particulars is without merit." (see paras. 18 and 19 above).  I would take a different view. 

31.         Para. 14 of the statement of claim simply refers to "an agreement".  It is pleaded who the agreement is between and what it permits.  As for when the "agreement" came into existence, it is stated that this occurred after 11 September 2001.  It is then claimed that the "agreement" is "an international agreement" for the purposes of Art. 29.5.3 of the Constitution and the State's obligations under the Charter of the United Nations.  What is pleaded as to the existence of an "agreement" is an answer to a parliamentary question by the Taoiseach in the Dáil where he referred to "cooperation and a pre-agreed understanding on those matters.." The only material fact is that the statement was made in the Dáil and, I would suggest, references to "cooperation and a pre-agreed understanding" fall short of being material facts to support an agreement of the type contended for by Senator Craughwell. 

32.         An international agreement of the type that engages the provisions of Art. 29.5.3 of the Constitution has to be "an agreement which binds the State".  Some international agreements do not fall into this category.  An example was the international agreement considered by the Supreme Court in Barlow v Minister for Agriculture [2017] 2 IR 440.  This was an agreement between the Government of Ireland and the authorities in Northern Ireland which provided for commercial fishing to take place in each other's territorial waters on a reciprocal basis.  An issue arose as to whether this agreement was an "international agreement" for the purposes of Art. 29.5.3.  The agreement was recorded in correspondence that passed between officials.  In giving the judgment of the Supreme Court, O'Donnell J. (as he then was) stated: -

"[42] Third, I am satisfied that the arrangement evidenced or recorded in the 1965 correspondence is not invalid for failure to comply with the formalities required under Article 29 of the Constitution in respect of Treaties binding the State. ...  I agree with the High Court that the arrangement is not invalid and cannot be impugned on the grounds that it was not laid before the Dáil in accordance with Article 29.  I consider however that this is because it was an arrangement in the nature of a gentleman's agreement rather than an 'agreement which binds the State' and thus the provisions of Article 29 were not triggered at all, rather than an agreement of a technical or administrative nature which did not require to be laid before the Dáil, although nothing turns on this for the purposes of this case."

33.         There are no material facts pleaded in the statement of claim that the "agreement" alleged binds the State. There is no suggestion that if, under the agreement, the State were to seek the assistance of the RAF and it was not forthcoming that the State could legally compel the RAF to do so. 

34.         In the High Court the Trial Judge did consider the absence of material facts in the statement of claim.  He stated: -

"68.  The defendants submit that the plaintiff has not pleaded the alleged agreement with any great particularity.  However that cannot be avoided in circumstances where the plaintiff pleads that it is a 'secret agreement' and the defendants themselves to refuse to admit or deny whether such an agreement is in existence." 

It seems to me that this statement should not be taken in any way to lessen the burden on Senator Craughwell to prove his case.  Indeed, based on the written submissions by him to this Court, this seems to be accepted: -          

"21.  The defendants suggest that the utterance of the Taoiseach in the Dáil is the sole basis upon which the plaintiff makes his case.  This is not the case.  As with any other litigant, the plaintiff will be required to adduce oral and other evidence of the matters he has set out in his statement of claim.  He is under no obligation to set out the evidence upon which he makes his case - O. 99, r. 3 RSC.

22.     It will be necessary to call evidence to determine the nature of the agreement, and whether it is an international agreement within the meaning of Art. 29.5.1 ..."

35.         The State in its defence and in the affidavit of Ms. Hyland placed considerable emphasis on the importance of maintaining the security of the State and not trespassing into the area of external relations.  Such considerations clearly weighed heavily on Mulcahy J. in making the order for the trial of the preliminary issue (see para. 14 above).  These considerations were central to the submissions made to this Court by the State.  It was submitted that matters of State security and external relations ought to result in a "higher threshold" being applied in considering applications such as the one before the Court and thus, the High Court ought to been more receptive to considering the preliminary issue than it was.  This submission is reflected in ground (b) in the notice of appeal referred to at para. 23 above.  There is no doubt that issues of national security and external relations raised in these proceedings are of fundamental importance.  So also is Senator Craughwell's right of access to the courts to have his proceedings determined in accordance with law.  Frequently, the courts have to determine proceedings that involve sensitive matters of security, for example, actions concerning witness protection programmes or information provided to the Gardaí by informers.  The courts have adopted practices and procedures to, on the one hand, preserve the security of the State, and on the other to do justice between the parties, e.g., strict "in camera" hearings. 

36.         The issue of discovery has already been discussed in these proceedings.  It can safely be anticipated that the State will invoke public interest privilege should discovery be ordered. Were this to be challenged it would involve the court balancing the public interest relied upon by the State against the interests of the individual litigant and what public interest there may be in the disclosure of the relevant documents.  This exercise can be carried out without compromising the confidentiality of the documents involved. 

37.         Arising from the previous paragraphs, it does not follow that that different rules apply once the State invokes issues of the security of the State and/or external relations.  For that to occur it would have to be established that court practices or procedures, or variations of them, are incapable of striking the correct balance between the interests of the State and the individual litigant.

38.         The ground of appeal that the High Court wrongly characterised the State's application as appearing to be an application under O. 19, r. 28 RSC to strike out the proceedings on the basis that they did not disclose a reasonable cause of action is not sustainable.  Though the State's application was for the trial of a preliminary issue, at its heart was the State's submission that the statement of claim did not detail material facts to support Senator Craughwell's action but rather consisted of assertions.  Thus, in the view of the State, a trial of a preliminary issue "on the basis of the facts as pleaded" would inevitably lead the court hearing the issue to conclude that there were no "facts as pleaded" which would result in the Court dismissing the proceedings.  This, I believe, was the basis for the observations of Mulcahy J. at para. 44 of his judgment as set out at para. 15 above.  It should further be noted that the State's submissions to this Court concluded: -

"83.  Accordingly, it is submitted that, on the basis of the facts as pleaded, the exercise of the Government's executive power in relation to the external security and external relations is not justiciable.  With that being so, the judgment should be set aside and replaced with an order dismissing the plaintiff's claim in limine."

In my view, the State was, in effect, seeking an order under O. 19, r. 28 RSC striking out the proceedings under the guise of the hearing of a preliminary issue under O. 25, r.1 RSC. The hearing of a preliminary issue under the said order requires, as per McKechnie J. in Campion, that: -

"... there cannot exist any dispute about the material facts as asserted by the relevant party: such can be agreed by the moving party... solely for the purposes of the application."

This clearly was not the case here, thus, the State's approach was not permissible.

39.         By O. 25, r. 1 RSC: -

"(A)ny party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial, provided that..., the same may be set down for hearing and disposed of at any time before the trial."

The ordinary meaning of this provision suggests that a party that intends to seek a trial of a preliminary issue of law must raise that point in its pleadings. That does not appear to have happened here, since I observe that, other than paragraph 5 of the Defence, which asserts that Senator Craughwell failed to plead any facts to suggest that the Government acted in clear disregard of the Constitution in the exercise of the executive power of the State, the State's pleadings do not allege a failure to plead facts. Since this point does not appear to have been taken in the course of these proceedings, I do not propose to decide this appeal by reference to it.

40.         By reason of the foregoing, the appeal will be dismissed.

Costs: -

41.         The High Court ordered that the costs of the hearing of the preliminary issue be costs in the cause.  This Court does not propose to disturb that order. 

42.         As Senator Craughwell has been successful in resisting the appeal, the provisional view of the Court is that he is entitled to his costs of the appeal.  Should the parties wish to dispute this, the State may do so by way of written submissions (not longer than 1,000 words) to be delivered within 14 days of the date of the delivery of this judgment.  Senator Craughwell may respond by written submissions (again not longer than 1,000 words) within 14 days thereafter.

43.         As this judgment is being delivered electronically, MacGrath and Collins JJ. have authorised me to record their agreement with it.

Result    Appeal Dismissed