The High Court has said it will not grant an injunction to secondary teacher Enoch Burke to stop a disciplinary process into allegations against him unless he complies with court orders against him.
Mr Justice Conor Dignam ruled that the balance of justice would favour granting the injunction to Mr Burke against the board of management of Wilson's Hospital school in Co Westmeath.
But the judge ruled that Mr Burke's ongoing refusal to comply with court orders tips the balance against granting the orders sought by him.
However, he has listed the matter for tomorrow morning to allow Mr Burke consider if he will comply with the orders against him.
Meanwhile, the High Court will give its decision by the end of next week in an application by the board of management of the school to seize the assets of Mr Burke or to fine him for continuing to defy a court order.
Mr Burke has continued to attend at Wilson's Hospital school, since it reopened after the Christmas holidays on 5 January, despite an injunction granted in early September ordering him to stay away from the school.
He was jailed on 5 September for breaching the court order and was released from Mountjoy Prison on 21 December.
Mr Burke says the injunction was unlawful and in breach of the Constitution.
Burke established strong case - judge
In his ruling this evening, the judge said Mr Burke had met the threshold to allow an injunction to be granted on two grounds put forward by him – that a report prepared by the then principal of the school contained findings and conclusions made without giving him any opportunity to respond, and that this report was read and discussed at a board meeting, attended by the principal, to which Mr Burke was not invited.
The judge said he was fully satisfied that Mr Burke had established a strong case that he was likely to succeed in showing that the principal's report was discussed at the meeting to which he was not invited.
He said Mr Burke was also likely to succeed in showing that the attendance of the principal at the meeting was wrongful, given the particular facts of the case.
In this case, the judge said the principal was not only the person who prepared the report to start the disciplinary proceedings, but was also the person against some of the behaviour alleged to constitute serious misconduct was based. The judge found Mr Burke had a strong case to argue that the report itself was flawed.
However, the judge said he had to have regard to Mr Burke’s position that he was not obliged to comply with an order obtained by the school against him, but that the school would be obliged to comply with an order obtained by him. He said this was a significant factor.
Unclean hands
Mr Justice Dignam said were it not for Mr Burke’s stated intention to continue to refuse to comply with the court orders, the balance of justice would favour granting an injunction to stop the disciplinary hearing. But his ongoing refusal to do so, tipped the balance against granting the injunctions sought.
He referred to the legal maxims that "he who seeks equity must do equity" and must "come to equity with clean hands". Mr Burke’s conduct to date amounted coming with unclean hands and his intention to continue attending the school amounted to him "not doing equity".
The judge said the enforceability of court orders was a central plank of any system based on the rule of law. It was part of the constitutional framework which governs us all, he said.
A citizen and society was entitled to expect that a person against whom an order was made would comply with it and would be compelled by the court to comply with it.
He said there was no merit at all to Mr Burke’s explanation that the previous court orders were manifestly unconstitutional and wrongful. The judge said individuals did not get to pick and choose when they will comply with orders based on their own assessment of the court’s correctness.
The judge said the orders of the court did not impact on Mr Burke’s religious rights and freedoms at all. It was entirely open to him to comply with the orders on the basis that he believed them to be wrong and the instruction of the principal to be invalid.
The judge said it would be "entirely inimical" to the proper administration of justice, the public interest in the enforceability of court orders to the benefit of society and the right of the school to have orders enforced.
He said it would be inequitable if Mr Burke could get orders against the school while refusing to comply with orders.
Mr Justice Dignam said he was giving Mr Burke time to consider if he would comply with the orders and listed the matter for tomorrow morning.
He said this was a short period of time but he was conscious the disciplinary hearing was scheduled for Thursday.
Issue of assets to be decided next week
Earlier, Mr Burke told the court the school's application to have his assets sequestered was nefarious and preposterous. He said the school was seeking to have everything he owned stripped from him for expressing his religious beliefs.
Lawyers for the school told the court Mr Burke was handed a letter on 6 January by the chairman of the board of management asking him to leave the premises and to give an undertaking not to return.
Barrister Rosemary Mallon said Mr Burke did not leave and did not provide an undertaking. But she said the school did not want him committed to prison again. This was because the school wanted to go ahead with the disciplinary hearing scheduled to take place on Thursday.
Ms Mallon said it was also open to the court not to sequester Mr Burke's assets or commit him to prison but to fine him whatever amount the court deemed fit.
Mr Burke said the court should not be considering the "nefarious" proposition being put forward for the school.
He said it was the first time known in the history of the State that an order for sequestration would be brought against an individual for expression by that individual of their religious belief.
The teacher said it was preposterous that he was standing in court when he should be teaching in his classroom.
Mr Burke claimed the court had no right to consider such a motion and the court proceedings themselves were completely repugnant to the Constitution.
He said he had been commanded by his school to participate in transgenderism and had been driven out because of his principal’s demand. He claimed the subsequent court orders were unlawful.
Mr Burke said he utterly rejected the depiction of him as some kind of "base criminal" who wilfully went out of his way to disrespect law and order. He said he would always keep the law but not when a court order was manifestly unconstitutional and unlawful.
He said the school had acted in defiance of the law and any order for sequestration would be beyond the legal authority of the court.
He said the application should be rejected in its entirety and the court could not take on a role to dishonour and disrespect religion. He said this was a case about being compelled or coerced into living in a way contrary to one’s conscience, which is what the principal and the court had sought to do.
The court has previously heard that the dispute between Mr Burke and the school arose after the then principal of the school sent an email to staff asking them to address a pupil by a new name and "they/them" pronouns.
Mr Burke refused to answer a question from Mr Justice Brian O'Moore about the extent of his assets or any additional income he received from giving grinds to students. He said he had done nothing wrong and considered the questions deeply offensive to the Constitution.
Ms Mallon said the Department of Education had refused to tell the school’s principal what Mr Burke’s salary was, due to GDPR, but she believed it was in the region of €48,000 a year and she had no other information about any other assets.
The judge said he would give his decision by Friday of next week.
Mr Burke asked why it would take so long given that the school's motion was clearly so repugnant to the Constitution.
The judge replied that many people came to court seeking their case to be decided immediately. Often they were misguided, he said, and had unreal expectations.
He said he was going to give the very deep issues raised by both sides the consideration they deserved.
