Teacher Enoch Burke has asked the High Court to set aside what he claims is the "gravely flawed" and "unsound" order underpinning his on-going incarceration at Mountjoy Prison.
Mr Burke, who appeared before the High Court on Friday, remains in prison where he has spent the last eight months over his refusal to stay away from Wilson's Hospital School in Co Westmeath.
The teacher appeared before Mr Justice Mark Sanfey for a review of the case, and to see if Mr Burke was prepared to purge his contempt and agree to comply with the court order.
The judge returned Mr Burke to prison, after the teacher again indicated he was not prepared to stay away from the school.
Mr Burke denies that he is in contempt of court, and says he has wrongfully been imprisoned because of his objections to transgenderism. . following a direction by the school to call a then student by a different pronoun.
During Friday's hearing, Mr Burke asked the court to set aside last year's judgement by Mr Justice Alexander Owens, granting Wilson's Hospital a permanent injunction restraining Mr Burke from attending the school.
Mr Burke was jailed last September due to his refusal to comply with that order.
In his application Mr Burke claims the order is flawed and should be set aside because Mr Justice Owens he claims completely disregarded the teacher's constitutional rights of freedom of conscience and the free profession and practice of religion.
Mr Burke argues that the judge stated in his ruling that it was "unnecessary for this court to determine claims by Enoch Burke that the school board interfered with his constitutional rights."
This the teacher claims is "a serious error of law" and "a breach by the court in its duty to uphold the constitution and the laws."
Rosemary Mallon Bl for the school said that her client had only been made aware of Mr Burke's application shortly before the court on Friday.
Counsel said her initial view was that the application was "misconceived" and was not properly before the court.
Counsel added that given that the school holidays have commenced, and State exams are due to finish in the coming weeks, the school would not object to any order releasing Mr Burke from prison without him purging his contempt.
Mr Burke stayed away from school during last year's summer holidays.
This matter could be reviewed again when the new school year commences in late August.
Mr Justice Sanfey said that the court's primary concern was if Mr Burke intends to purge his contempt or remain in prison.
Mr Burke, he said, was once again clearly not prepared to give an undertaking to comply with the order to stay away from the school.
The Judge said that he was not going to shut out the teacher's application to set aside Mr Justice Owen's order.
The judge said the normal course of events is that any party unhappy with a judgement of the High Court can appeal the decision to the Court of Appeal.
Also, the judge said it is not generally permissible for a judge to set aside a decision of another judge in the same division of the Irish Courts.
The judge also asked Mr Burke why Mr Justice Owens' judgement had not been appealed.
He said that he was not prepared to consider the application on Friday.
The school would need time to fully respond to such an application, the judge noted.
The judge added that he was only prepared to hear one specific, preliminary aspect of the application, namely if the court can consider the application at all.
The judge adjourned the application to a date in June, and put a timetable in place for the exchange of legal documents.
Mr Burke said he could not understand why the court did not want to hear and determine his application, which raised serious and important constitutional issues straight away.
He was also critical of the court for not dealing with his application to set aside the judgement which has put him in prison alongside "murderers, thieves and bank robbers."
He also said that any question of him being released during the holidays was an insult. He had come to court for justice and not for a holiday, he added.
In reply, the judge said that Mr Burke's comments was typical of some of the "spurious nonsense" the court has heard since this case first came before it.
The judge noted the school's position regarding the holidays, but said that court position remains that orders need to be obeyed.
Throughout this legal battle Mr Burke has claimed that he has been imprisoned because he was being punished for his religious beliefs.
Mr Burke was jailed last September over his deliberate failure to comply with the permanent injunction restraining him from attending at the Co Westmeath school.
The school's board claimed Mr Burke had attended its campus every day when the 2023/24 school year commenced last August.
His presence at the school caused "severe disruption for staff and students", the board claimed.
Mr Burke was found to have "flagrantly breached" Judge Owen's order and was sent to prison "indefinitely," until he purges his contempt.
During his first stint behind bars, the Evangelical Christian spent over 100 days in Mountjoy between September and December 2022.
Following his suspension from his teaching position in August 2022 Mr Burke was sued by the school over his failure to comply with a court order requiring him to stay away from the school.
He was released in December 2022 without purging his contempt.
He again started attending at the school after the holidays, and the High Court imposed a daily fine of €700 on Mr Burke.
The teacher denies the claims against him and says that his constitutional rights were breached by the school's direction that he refers to a student by a different gender.
