Supreme Court dismisses appeal for judicial review due to finality of prior debt collection orders and lack of locus standi.

THE SUPREME COURT

[Supreme Court Appeal No: 202/2011]

McKechnie J.

O’Malley J.

Finlay Geoghegan J.

BETWEEN:

HEATHER ROSEN

APPELLANT

AND

THE DIRECTOR OF EQUALITY INVESTIGATIONS AND THE EQUALITY TRIBUNAL

FIRST RESPONDENTS

AND

THE MINISTER FOR JUSTICE AND THE DEPARTMENT OF JUSTICE EQUALITY AND LAW REFORM

SECOND RESPONDENTS

AND

IRELAND AND THE ATTORNEY GENERAL

THIRD RESPONDENTS

AND

THE MEMBERS OF CERTAIN TRAVELLER FAMILIES

FIRST NOTICE PARTIES

AND

CLARE COUNTY COUNCIL AND THE COUNTY MANAGER

SECOND NOTICE PARTIES

JUDGMENT of Ms. Justice O’Malley delivered the 9th day of April 2019

Introduction

1. This appeal is brought against the refusal of the High Court to grant leave to the appellant, who will be referred to here as Ms.

Rosen, to seek judicial review. The application for leave concerned certain decisions made by the respondent tribunal in the course of

dealing with a number of complaints made against Clare County Council under the provisions of the Equal Status Acts 2000 - 2004.

Ms. Rosen seeks to quash orders that brought some of those complaints to an end and made her liable for an estimated portion of the

expenses of the County Council. In total, a sum of €7,400 was awarded against her. She further seeks declaratory and mandatory

relief in respect of the procedures adopted in, and the lack of available legal assistance for the complainants at, the hearings.

2. The relevant orders were made by an equality officer in late 2008. The ex parte application for leave was made to the High Court

(Hedigan J.) in May 2011, at a time when Hedigan J. was dealing with separate but closely related proceedings between Clare County

Council and the tribunal. In an ex tempore ruling, Hedigan J. noted that the application was outside the time limits set out in O.84 of

the Rules of the Superior Courts. He found that there was no adequate explanation for the delay and refused leave on that basis.

Background

3. Over a period of some years starting in or around 2003 Ms. Rosen was attempting to assist travellers in Co. Clare to make

complaints to the tribunal against the local authority, on the basis of allegedly discriminatory treatment in relation to accommodation.

As of the time when the impugned orders were made she was involved in more than 1,000 such complaints against Clare County

Council, on behalf of a considerable number of travellers. It should be stressed that Ms. Rosen was not a complainant in her own

right, but was, as someone who had worked for some years with travellers in the area, seeking to act as a lay advocate or

representative. Such a role is, of course, permissible within the relatively informal framework established by the Equal Status Acts.

4. It appears that the equality officer assigned to the cases decided to group the complaints by family. Between 2006 and 2009 she

sat in Co. Clare several times for the purpose of dealing with the list. She instituted a “callover” procedure in early 2007, which Ms.

Rosen felt was inappropriate and unduly onerous for the individuals concerned. At a certain stage the officer adopted the policy of

dismissing complaints if the family was not present at the callover. A large number of complaints were disposed of in this manner.

5. The difficulties that arose in the relationships between the council, the tribunal and Ms. Rosen are clearly illustrated in the High

Court judgments of MacMenamin J. in Clare County Council v Judge Kenny [2009] 1 I.R. 22 and Hedigan J. in Clare County Council v

Director of Equality Investigations & Ors. [2011] IEHC 303. In the first of these, the council disputed the jurisdiction of the Circuit

Court to hear appeals by complainants against orders dismissing complaints for failure to attend callovers. In the second, the council

attempted to prevent the tribunal from continuing any further with its investigations. One of the reliefs sought was an order that the

tribunal should not investigate any more complaints that were lodged through the agency of Ms. Rosen. Separately, the council issued

plenary proceedings against Ms. Rosen seeking an injunction against her continuing to act as a representative in such complaints,

although this last matter does not appear to have proceeded.

6. It seems that Ms Rosen frequently applied for adjournments, and sought abandonment of the callover policy. It also appears that

she felt that she was not entitled to provide the families’ contact details to the tribunal, and that the equality officer therefore held

her responsible for notifying them of callovers. According to Ms. Rosen, some of the dismissal orders were made where the individuals

were absent through illness or other good reason, or where they did in fact arrive, albeit late. The officer considered that Ms Rosen’s

behaviour was unacceptable and amounted to an obstruction of the investigation, particularly after a letter was presented on behalf

of the complainants asking for a new adjudicator to be appointed. On a great many occasions (if not all) on which complaints were

dismissed in 2008 the officer made an expenses award against Ms Rosen, being an estimated figure for the time spent by officials

collating information or attending at the hearing; office expenses and so on. The Court has seen a list of thirty-seven such awards,

coming to a total sum of €7,400.

The Circuit Court

7. Expenses orders are provided for in s. 37A of the Equal Status Act 2000, as inserted by s.63 of the Equality Act 2004. Such an

order is not directly enforceable, but the amount ordered to be paid may be recovered as a simple contract debt. In this case a

demand for payment was made by the solicitors for the council. As Ms. Rosen did not comply, the council sought and obtained

summary judgment from the County Registrar in the sum of €7,400 plus costs.

8. Ms Rosen appealed that order to the Circuit Court. The appeal was heard on the 22nd June 2010 and was unsuccessful. Ms. Rosen

says that the presiding judge told her that the Circuit Court could not grant the remedies she was looking for. However, she says that

an application on the 30th June 2010 for a stay was granted.

9. Ms. Rosen then lodged an appeal in the High Court.

The High Court

10. The judicial review proceedings brought against the tribunal by the council were heard over eight days by Hedigan J. in May 2011.

Ms. Rosen had been unsuccessful in an earlier application to be made a notice party in the hearing, although in an appeal on that

issue this Court informed her that she could apply to be heard in the High Court under the provisions of O.84 r.26 of the Rules of the

Superior Courts. It seems that she filed an affidavit and was permitted to address the court on this basis.

11. Ms. Rosen’s appeal against the Circuit Court order was also listed before Hedigan J. and was left to be dealt with at the end of

the council/tribunal case. In the event, it seems clear that when that hearing concluded, Ms. Rosen’s application for leave was heard

by Hedigan J. before he dealt with her appeal.

12. The note of the ruling on Ms. Rosen’s leave application makes it clear that Hedigan J. thought that the question of the time limits

for judicial review was the primary problem, and that it had not been expressly addressed by her. However, there is in fact a

paragraph in the grounding affidavit dealing with “the extended time for the seeking of leave for a Judicial Review”. Ms. Rosen asked

the court to take the following factors into account: the continuing crisis experience of the complainant families; her personal

financial difficulties and the need for her to take up employment; her recurring health difficulties; other events in her personal life; her

lack of legal knowledge and legal assistance; the pressure of fulfilling the directions given by the equality officer in cases that had not

been dismissed; the pressure of dealing with the council’s attempt to deny the right of appeal in the cases that had been dismissed;

the pressure created by the council’s attempt to injunct the further progress of the investigations; and her failure to realise that the

reliefs she wanted could not be obtained by becoming a notice party in the already current litigation between the council and the

tribunal.

13. As already noted, Hedigan J. considered that there was insufficient justification for the lapse of time.

14. The appeal against the Circuit Court order was then heard. On Ms. Rosen’s own account she absented herself for part of the

appeal hearing, while counsel for the council was addressing the court, despite being advised not to by Hedigan J. She says she did

so in the mistaken belief that it was necessary to attend immediately in the Supreme Court in order to indicate to this Court her wish

to appeal the leave refusal. She says that on her return Hedigan J. told her that she had surrendered her chance to speak in the

matter. The appeal was dismissed, with judgment given to the council in the sum of €7,000 plus costs.

Discussion and conclusion

15. It is clear that Ms. Rosen has devoted an enormous amount of time and energy to the task of assisting in the complaints in

question. I do not think that her commitment could be questioned, although there must be some considerable doubt as to whether

she has the skill and resources to act effectively as an administrator and representative for so many people. I mean no disrespect to

her in saying this – it is a task that would be beyond many solicitors who operate as sole practitioners.

16. However, it also seems clear to me, with the benefit of considering the papers at this remove in time, that Ms. Rosen has failed to

appreciate certain matters that in legal terms are of central importance.

17. The expenses orders were not, when made, directly enforceable. It is the subsequent court orders that have enabled the Council

to take coercive steps to recover the amount ordered (and the costs involved in obtaining those orders). The Circuit Court heard and

determined Ms. Rosen’s appeal from the County Registrar, and the High Court has heard and determined her appeal from the Circuit

Court. The order made in that last appeal is now the legal basis for the debt collection steps taken against her by the Council.

18. It is true that the County Registrar, the Circuit Court judge and, on appeal, the High Court judge were dealing with proceedings

categorised by the statute as the collection of a simple contract debt, while any judicial review proceedings would have been

concerned with the legal propriety of the decision made by the equality officer. However, the legal route taken by both the Council

and Ms. Rosen has culminated in a binding decision by the High Court that the money is due.

19. It is not now possible to embark upon alternative proceedings with the objective of establishing, through the judicial review

process, that the money is not due because the expenses orders should not have been made. It would not be open to another High

Court judge, exercising the judicial review jurisdiction, to rule that the order of Hedigan J. could not be enforced or lacked validity.

The issue between the parties has, as a matter of law, been finally disposed of by the High Court exercising its jurisdiction to hear

appeals from the Circuit Court, and this Court cannot grant leave to mount what would, in effect, be a collateral attack on that

decision.

20. In case there should be a perception that this comes down to a mere matter of timing, because of the fact that the leave

application was heard before the statutory appeal, it may be necessary to stress that sequencing is not the crucial issue here. If

necessary, it would have been open to the trial judge, dealing as he was with two related matters one after the other, to reverse the

sequence if it became apparent that injustice might otherwise be caused. The key point is that on the date that Hedigan J. heard the

two matters, a challenge to the expenses orders made by the equality officer alone, in the absence of any challenge to the Circuit

Court order granting judgment in the sum claimed, could not have assisted Ms. Rosen. Had she succeeded, the Circuit Court order

would still have stood as a valid order. The fact that Hedigan J. saw the delay as being the central issue does not change that.

21. Conversely, if the appeal from the Circuit Court had been heard first and had been successful, there would have been no reason

to grant leave to proceed with a judicial review of the expenses orders.

22. Apart from the expenses orders, Ms. Rosen seeks orders of certiorari and declaratory relief in respect of the decisions of the

equality officer in bringing the complaints to an end, and mandamus and declaratory relief in respect of the procedures adopted by

the tribunal and the lack of legal aid for complainants. As these were decisions that affected complainants, and she was not herself a

complainant, in my view she has no locus standi to seek such reliefs in her own name in relation to these matters.

23. In the circumstances I would dismiss the appeal.