Mr Justice Brian O’Moore made the comments ahead of a hearing in which the schoolteacher, who is suspended after clashing with school management over a request that a transgender pupil be called “they” instead of “he”, is seeking to restrain the holding of a disciplinary meeting on January 19.
Mr Burke, an evangelical Christian, spent 108 days in prison last year for contempt of a temporary court order restraining him from attending at Wilson’s Hospital School in Multyfarnham, Co Westmeath.
But he resumed breaching the order when the Church of Ireland diocesan boarding school reopened last Thursday following the Christmas holidays.
When Mr Burke’s application for an injunction was mentioned in court this morning, Mr Justice O’Moore asked the teacher if he was complying with the court order.
After Mr Burke indicated he wasn’t, the judge said this was something that would have to be considered when it came to dealing with the injunction application.
“There is an issue as to whether or not someone who is consistently in breach of a court order is themselves in a position to seek the assistance of the court to secure an order on an equitable basis preventing the school or anyone else from acting in a certain way,” the judge said.
“It was with some surprise that I learned that despite your refusal to abide by the court order you were now seeking the power of the court to injunct the school from doing something.”
Mr Justice O’Moore, who heads up the High Court chancery list, made the comments as he transferred the matter to Mr Justice Conor Dignam, who will hear the injunction application this afternoon.
When Mr Burke claimed that the judge’s comments were “improper”, “uncalled for” and “unnecessary”, Mr Justice O’Moore responded: “I am simply marking your card that this is an issue which will be of some consequence in terms of this ongoing litigation”.
A separate motion in the case, in which the school’s board of management is seeking the sequestration of Mr Burke’s assets due to his continued breach of the order, was adjourned to next Tuesday. The court heard a technical issue had held up the filing of an affidavit.
Mr Burke admitted he was breaching a court order restraining him from attending or attempting to teach children at the school.
“I am attending at the school. I have been consistent in that matter,” he told Mr Justice O’Moore.
“I have been consistent from the start that I am innocent. I have an unblemished record.
“My only crime is that I expressed my religious belief on transgenderism and I would not surrender that religious belief and call a student by the ‘they’ pronoun. That is my Christian belief.”
Mr Burke claimed he had a “duty” to turn up for work.
He claimed the disciplinary process was “manifestly unlawful” and he did not want to “set a precedent” where a teacher could be suspended and dismissed because of their religious beliefs.
“It was my duty to resist and to turn up to my workplace,” he said.
The history and German teacher has been suspended on full pay since August following a number of incidents in which he publicly opposed the request and asked for it to be withdrawn.
But after he continued to show up for work in August and September, the school secured a temporary order restraining him from doing so, which he then breached, leading to his incarceration for contempt of court.
He has claimed that due to his religious beliefs, he could not comply with the request or the High Court order.
Despite not purging his contempt, Mr Justice O’Moore finally ordered his release from Mountjoy Prison on December 21 after finding the teacher was “exploiting his imprisonment for his own ends”.
Despite being warned by the judge that he could face imprisonment again or the sequestration of his assets if he breached court orders again, Mr Burke showed up at the school last Thursday and again on Friday, Monday and Tuesday.
It is understood he has been confined to a hallway, where he stood throughout each day, and has not been coming into contact with pupils.