Warrant should have been quashed due to absence of penal endorsement on notice of estreatment of bail

McCarthy J (majority decision): Judicial review - appeal of a decision refusing to grant an order of certiorari quashing certain committal warrants - whether there was an obligation to serve notice on the applicant warning that a failure to pay the sum specified in the Notice within a specified period would lead to the issue of a warrant for his committal to prison without further notice to him following orders for the estreatment of bail monies - statutory interpretation - penal endorsement omitted - Order 12, Rule 8 of the District Court Rules - Order 12, Rule 15 of the District Court Rules - District Court rules must be followed - absence of penal endorsement meant no notice had been given - appeal allowed.

"It seems to me that the relevant provisions both of the Act and the Rules constitute a scheme to enforce the conditions in recognisances and each step or element in the process of enforcement must be followed. Thus notification, as a step in the scheme or process, is a condition precedent to enforcement. That must be so. An order for estreatment gives rise to the duty to pay a sum of money and thus affects rights or imposes liabilities. Most fundamentally it makes – or in any event did so in these cases –provision or imprisonment to enforce any payment. All of this may occur without prior notice to the accused; without more it might constitute a departure from one of the elements of constitutional justice. There are sound practical reasons why estreatment with, inter alia, provision for imprisonment to enforce payment in given circumstances, is necessary at, say, the default of appearance stage. Far reaching orders can be made by courts ex parte (which is what occurs in this type of order). Constitutional justice is afforded by the power to vary or discharge an order by giving the accused an ample opportunity to be heard before his interests are, with finality, adversely affected. He is given notice of the proceedings to permit him be so heard and to ensure that he is aware of his procedural rights and the consequences of failing to act (the latter by means of the penal endorsement). This is done without undermining the practical reasons for an initial order made without notice by the application of the scheme or process."

Edwards J (concurring): complete absence of penal endorsement notwithstanding that the District Court form provided for one - appellant's had not received notice in the required form - failure to comply with the statutory requirement created an unfairness impinging directly on a citizen’s constitutional right to liberty - appeal allowed.

"It is true that under Order 12, Rule 23 a failure to comply strictly with the specified form can be forgiven as a matter of judicial discretion “if the form or the words used be otherwise sufficient in substance and effect”. In this case there was a complete absence of any penal endorsement. This was notwithstanding that the form provided for one. The purpose of a penal endorsement is to focus the mind of the person at risk of having their liberty deprived on the potential consequences of their actions. Nothing in the form of notice actually used would have done that. It is impossible therefore in my view to suggest that the form or the words used in this case was “otherwise sufficient in substance and effect.” The liberty of the individual was in peril. There was a statutory protection in place in terms of a requirement that such an individual should have it specifically drawn to their attention by means of a clear warning that a failure to pay the estreated sum would attract the consequence of the issuance of a warrant of imprisonment without further notice. The failure to afford that protection was a matter that requires to be taken seriously."