IESC 5 · Supreme Court

Keane C.J.

Denham J.

McGuinness J.

Geoghegan J.

Fennelly J.

107 & 115/01

THE SUPREME COURT

IN THE MATTER OF AN INTENDED JUDICIAL REVIEW

BETWEEN/

B. Applicant

AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Respondent

AND THE ATTORNEY GENERAL

Notice Party

AND

THE SUPREME COURT

JUDICIAL REVIEW

BETWEEN/

S. 164/01

Applicant

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, INTERIM REFUGEE APPEALS AUTHORITY, IRELAND AND THE

ATTORNEY GENERAL

Respondents

JUDGMENT of Mr. Justice Geoghegan delivered the 30th day of January 2002

In the above named two appeals the same preliminary objection has been taken by the respondent State authorities. Although

the point of objection is in practice identical in each case, procedurally, it comes about slightly differently. In the B. case the

applicant/appellant had applied to the High Court (Finnegan J.) for an order under section 5(2) of the Illegal Immigrants

(Trafficking) Act, 2000 extending the time within which an application for leave to apply for judicial review could be made, the

statutory period of fourteen days having already expired. The application was heard by motion on notice at the hearing of which

the State was represented. The learned High Court judge refused to extend the time whereupon counsel for the applicant drew

his attention to section 5(3)(a) of the same Act whereby it is provided that

"the determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an

application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the

Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High

Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the

public interest that an appeal should be taken to the Supreme Court."

Counsel for the applicant went on to submit that the requirement of leave grounded on a certificate did not apply to a mere

application for the extension of time. The learned High Court judge agreed that that was so and this position was acquiesced in

by counsel for the State. Some days later however counsel for the State arranged that the matter would be brought back into

the court so that he could inform the judge that he had instructions that he ought to have argued that such leave and

certificate were acquired. In the absence of consent the learned High Court judge refused to reopen the issue at that stage. I

should perhaps have mentioned that the learned judge had granted a stay on the deportation order partly to enable further

pleas to be made to the Minister but partly also to enable an appeal to be brought. Mr. B., accordingly, brought an appeal

simply against the refusal to extend the time but the Minister has brought a cross-appeal on the grounds:

"1. That the learned trial judge erred in law and in fact in determining that the applicant did not require leave to appeal a

decision to refuse his application for extending the period within which application for leave to apply for judicial review

might be made.

2. That only the High Court can extend the time for bringing an application seeking leave to apply for judicial review

under section 5 of the Illegal Immigrants (Trafficking) Act, 2000."

The procedural history of the S. case was different. In that case the learned High Court judge, who was also Finnegan J., in a

reserved judgment took the view that the leave of the High Court was required to appeal a decision refusing to extend time

under the 2000 Act before bringing an application for leave to apply for judicial review, though it would appear from the

judgment that he was under the mistaken belief that he had arrived at the same decision in the B. case. The learned High Court

judge went on to refuse leave but it is worth quoting in full that part of his judgment which is the last paragraph.

"I am satisfied that the issue as to the true construction of section 5(3)(a) of the Illegal Immigrants (Trafficking) Act,

2000 raises a point of law of exceptional public importance and that it is desirable in the public interest that an appeal

should be taken to the Supreme Court. The very strict time limits imposed by the Illegal Immigrants (Trafficking) Act,

2000 section 5(2)(a) result in a large number of applications in this court for an extension of time within which to seek

leave to apply for judicial review. A decision of the Supreme Court would be of assistance to litigants and their legal

advisors and in ease of this court. However, as to the circumstances which affect the applicant which form the basis of

the application for an extension of time and my decision on the basis of such circumstances to refuse to extend time I

do not consider that the same involve a point of law of exceptional public importance or that it is desirable in the public

interest that an appeal should be taken to the Supreme Court and accordingly I refuse leave to appeal in respect of my

decision in that behalf. However, it may be that in the event that the Supreme Court come to a different conclusion as

to the true construction of section 5(3)(a) and hold that leave is not required to appeal my decision not to extend time

they may well proceed to determine the appeal against my decision in that regard."

Mr. S. has appealed against so much of the judgment of Finnegan J. as decided that the determination by the High Court of an

application under section 5(2)(a) of the Act of 2000 for an extension of the period within which an application for leave to apply

for judicial review may be brought is to be regarded as final, such that no appeal would lie from such a decision to the Supreme

Court except with leave of the High Court granted in accordance with the provisions of section 5(3)(a) of the said Act, and

further determined that the circumstances which formed the basis of the application for the extension of time and the decision

of the High Court judge did not involve a point of law of exceptional public importance and refused leave to appeal in respect of

his decision on that issue. Having regard to the decisions of this court in Irish Asphalt Limited v. An Bord Pleanála [1996] 2 IR

179 and Irish Hardware Association v. South Dublin County Council, unreported judgment of Keane C.J. 23rd of January, 2001,

no appeal can lie against a decision relating to the certificate or the granting or refusing of leave to appeal. But the question

does arise whether an appeal against a refusal to extend time can be brought without the necessity of any such certificate or

leave. Counsel for Mr. S. says it can be done and counsel for the State respondents object that such an appeal does not lie. As

I have already indicated this objection is in substance the identical objection to that raised in the B. case. Accordingly, this

single judgment will cover both cases.

Article 34.4.3 of the Constitution provides as follows:-

"The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have

appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of

other courts as may be prescribed by law."

This provision of the Constitution was exhaustively considered by this court in The State (Browne) v. Feran [1967] I.R. 147. At

p. 156 of the report Walsh J. in a part of his judgment with which the four other members of the court, Ó Dálaigh C.J., Haugh J.,

Budd J. and FitzGerald J. agreed, observed as follows:

"Subject only to the extent to which such limitation is imposed by Act of the Oireachtas, the appellate jurisdiction of this

court from decisions of the High Court is unlimited."

In support of that view he cited Warner v. Minister for Industry and Commerce [1929] I.R. 552, Attorney General (Fahy) v.

Bruen [1936] I.R. 750 and Sullivan v. Robinson [1954] I.R. 161.

In People v. Conmey [1975] I.R. 341 Walsh J. observed:-

"any statutory provision which had as its object the excepting of some decisions of the High Court from the appellate

jurisdiction of this Court, or any particular provision seeking to confine the scope of such appeals within particular limits,

would of necessity have to be clear and unambiguous."

It would seem to be clear from the authorities however that an exclusion or regulation of the right to appeal to the Supreme

Court need not be expressed. It is a matter of construction of the relevant statutory provision in each case but there must not

be any lack of clarity or ambiguity. Hamilton C.J. in Hanafin v. Minister for the Environment [1996] 2 I.R. 321 at 389 put it this

way:-

"None of these cases affect the fundamental position that if it is the intention of the legislature to oust, except from or

regulate the appellate jurisdiction of this Court to hear and determine appeals from the decisions of the High Court, such

intention must be expressed in clear and unambiguous terms and it is a matter for interpretation by the Court as to

whether or not any provision of any law which purports to except from or regulate the appellate jurisdiction of this Court

is effective so to do."

In Irish Asphalt Limited v. An Bord Pleanála (cited above) this court, through a judgment of Barrington J. with which the other

four members of the court agreed, held that where under the modern planning legislation leave to appeal is required from the

High Court on a judicial review, such leave to be given only if the judge certifies that his decision involved a point of law of

public importance no appeal lies from the refusal of the High Court to grant such certificate. The court came to this conclusion

on the basis that upon the true construction of the relevant statutory provision the High Court and only the High Court could

certify. Accordingly, there could be no right of appeal to the Supreme Court. The court followed the reasoning of the former

Supreme Court in Attorney General v. Murray (No. 2) [1926] I.R. 300. An unsuccessful attempt to reopen this issue was made

in Irish Hardware Association v. South Dublin County Council, also cited above. But the Irish Asphalt case and the Irish

Hardware Association case would seem to me to have no bearing on this case. At the stage when a certificate is sought or

leave to appeal is sought, the High Court judge has already heard the application for leave to apply for judicial review or the

application for judicial review as the case might be. Such an application is in existence and the judge hearing it has a

designated role. In this case, however, it is argued on behalf of the appellants that at the stage when the judge decides that

the time is not to be extended no application for leave is or could be in existence even if the same notice of motion (which was

not the case in these applications) sought the extension of time and the leave. In considering the issues raised on this appeal

and the general jurisprudence of this court in relation to restrictions on or regulation of appeals, no assistance can be gained

from the certificate cases. I, therefore, turn to considering the application of the general principles.

In Brady v. Donegal County Council [1989] ILRM 282 Costello J. in the High Court held that legislation providing for a short

limitation period without any saving clause enabling the court to lengthen the period in favour of a plaintiff whose ignorance of a

cause of action within the period was caused or contributed to by the defendant is unreasonable and does not protect or

vindicate the constitutional rights of such plaintiff. In this legislation of course there is a power in the High Court at least to

extend the time but on the hearing of the Article 26 Reference relating to this legislation it was argued as a ground of alleged

unconstitutionality that the fourteen day time limit was too short. As a member of the court that heard the Reference, I do not

remember any discussion at the hearing of the question of whether a refusal to extend the time could be appealed. But where a

successful challenge to the validity of a deportation order, for instance, might depend on being entitled to bring a judicial review

application the question of extending the time becomes vitally important if the time has run out. Any right to have the time

extended differs enormously in quality and value depending on whether it is dependent on the view of a single High Court judge

possibly dealing with a lengthy motion list at the same time on the one hand and dependent on the view of a High Court judge

with a right of appeal to the Supreme Court on the other hand. It is not a minor procedural difference in the right. It is an

immense difference. For the right of appeal against a refusal to extend the fourteen day time limit to be ousted there must, in

my view, be clear words to that effect. I now turn therefore to considering the actual wording under the legislation.

There has been a certain amount of discussion at the hearing of the appeal of the so called "policy" of the legislation. The Act

contains miscellaneous provisions and when one refers to the policy of the Act in connection with the issues on this appeal in

practice one is referring to the policy behind section 5 of the Act. It seems obvious from a reading of the section that the

policy underlying it was a speedy resolution of disputes under the aliens and refugee legislation. The Oireachtas in its wisdom

decided that it would not permit challenges to the validity of any of fourteen different categories of documents or steps taken

under the legislation as listed in section 5(1) to be litigated through the lengthy procedures involved in plenary proceedings.

First of all any such challenges had to be made by way of judicial review. Secondly, there was to be a limited right of appeal

from the High Court decisions granting or refusing leave for judicial review or granting or refusing judicial review itself pursuant

to such leave. Thirdly, the grounds for obtaining leave were to be somewhat stricter than the ordinary grounds. Fourthly, and

very importantly the application for leave to apply for judicial review had to be made within the period of fourteen days

commencing on the date on which the person was notified of the decision, determination, recommendation, refusal or making of

the order concerned unless the High Court considered that there was good and sufficient reason for extending the period within

which the application should be made. If, therefore, an application for leave has not been made within the fourteen day period

an applicant must seek an extension of time from the High Court. That extension of time may well be opposed. If it is opposed

the controversy which then has to be resolved is a quite different justiciable controversy from the justiciable controversy that

might arise on the question of whether leave should be granted or not. While it is true that this court has recently held that on

an application for extension of time, the court is entitled to have regard to the fact that the merits of the application might be

unstateable or on the other hand particularly strong (unreported judgment of Hardiman J. delivered the 17th of December 2001

in G.K. v. The Minister for Justice, Equality and Law Reform), in many instances the issues on the application for extension of

time would be quite different from the issues on the application for leave itself. All sorts of issues can arise on the application

for the extension of time such as nondelivery of letters, delay by the applicant's solicitor, difficulties in language communication

etc. which might not turn out to be relevant on the application for leave.

In this connection it is irrelevant in my view whether the application for an extension of time is brought by an independent

notice of motion in advance of an application for leave or whether the extension of time is requested in a combined notice of

motion seeking the extension of time and then if granted leave for judicial review. In either event the issues involved on the

application for extension of time may be substantially different from those involved in the application for leave. Under the

express terms of the Act the restrictions on the right of appeal to the Supreme Court apply to the application for leave or the

application for judicial review and as a matter of ordinary grammar and syntax, I find it difficult to see how it could be argued

that there is an ouster of the right of appeal from a refusal to extend time. If the Oireachtas had intended that, it should have

said so. Until the extension is granted there is no application for leave in existence. But even if as a matter of grammar and

syntax such an argument could be made there is certainly not a clear and unambiguous ouster of the right of appeal which is

required under the constitutional jurisprudence referred to earlier in this judgment.

An argument can be made against this view based on the provisions of Order 84, r. 21 of the Rules of the Superior Courts. Order

84, r. 21(1) reads as follows:-

"An application for leave to apply for judicial review shall be made promptly and in any event within three months from

the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the

court considers that there is good reason for extending the period within which the application shall be made."

Paragraph 1 however is subject to paragraph (3) of the same rule which reads as follows:-

"The preceding paragraphs are without prejudice to any statutory provision which has the effect of limiting the time

within which an application for judicial review may be made."

It has been suggested that since any extension of time issue is always wrapped up in the application for leave when it is an

ordinary application under the rules it should, as it were, be taken for granted that the Oireachtas intended the same. I do not

think that the analogy holds good in any way. First of all the ordinary application for leave in the High Court is made ex parte

and although on a literal reading of Rule 21 it might be thought that it is at the stage of that application that the court has to

decide whether to extend the time or not more often than not the court postpones time issues until the application for judicial

review itself so that the respondent can be in a position to argue the time point before the court and, indeed, there is always

the possibility that there might be no objection to the extension of time. But it is clear that whatever be the technically correct

procedure under Rule 21(1), it gives way to any statutory provision which has the effect of creating a time limit. It is,

therefore, in my view on the terms of the statute alone that this appeal should be decided.

It was pointed out at the hearing and, indeed, was adverted to at the time of the Reference that there is nothing to prevent an

application for extension of time being made before the fourteen day time limit has run out. Counsel for the respondents, Mr.

MacEntee, S.C. argues that if such an application was brought for extension of time before the period had run out and was

refused there would be no appeal in the absence of leave and the necessary certificate. But he had to concede that if on the

other hand the extension of time was granted the State authority would have an appeal to the Supreme Court without requiring

leave or the certificate. This must surely be an unfair anomaly. If the Act is interpreted correctly I do not think that there is

any need for such anomaly. The refusal of an extension of time in such circumstances is not a "determination" of the

application for leave within the meaning of the Act. A "determination" of an application for leave means a decision on an

application for leave when such application is properly before the courts. If the time has not been extended such application is

not properly before the courts.

Under the canons of construction which are part of Irish common law I am of the view that this court ought to hold that the

restriction on appeal does not apply to the application for extension of time even if, on a general reading of the Act, it is

considered that such a conclusion would be against the policy of the Act. The policy of the Act can only come into play if there

is some genuine ambiguity on the words. I do not think that there is. But at any rate I do not accept that the existence of an

automatic right of appeal against refusal of extension of time is necessarily against the policy of the Act. The court has no

knowledge nor should it speculate as to what view the Oireachtas would have had on this matter. It may well be for instance

that the short fourteen day time limit was arrived at taking into account that there might be an appeal. Secondly, the Attorney

General would have advised the Government who piloted the legislation that there would normally be no great delay in the

Supreme Court in relation to an appeal against extending time. Except in rare cases it could be dealt with in the Friday Motion

List. At the time of the Reference the Attorney General, as is clear from the judgment in the Reference, argued that the

jurisdiction of the High Court to extend time under the section was "a generous and extensive one". Indeed, it was not

suggested that it should be any more restrictive than an ordinary application for extension of time under the rules. As the issue

of the shortness of the time limit was thought to be of considerable importance in considering the constitutionality of the Bill it

seems extraordinary that there was no discussion as far as I can recall as a member of the court and as far as I can ascertain

from the judgment of a restriction on the right to appeal from a refusal to extend time. For the reasons which I have already

pointed out the extension of time may be absolutely vital and may be based on quite separate issues. I can find nothing in the

Act which restricts the right of appeal to the Supreme Court from the refusal to extend time and I would, therefore, take the

view that the court should hear both appeals and that the objections be overruled.