High Court dismisses charity's judicial review claim due to delay and failure to exhaust administrative remedies.

THE HIGH COURT

JUDICIAL REVIEW

[2026] IEHC 30

RECORD NO. H.JR/2025/180

BETWEEN

COUNTY WEXFORD COMMUNITY WORKSHOP (NEW ROSS) CLG TRADING AS CUMAS NEW ROSS

APPLICANT

-AND-

AN ADJUDICATION OFFICER AND THE WORKPLACE RELATIONS COMMISSION

RESPONDENTS

-AND-

AMANDA MURPHY AND TERRY O’DOWD

NOTICE PARTIES

JUDGMENT of Mr. Justice Mark Heslin delivered on the 16th day of January 2026

1. The applicant is a registered charity which provides services to individuals with intellectual disabilities.

2. The notice parties are former employees of the applicant who have brought a number of complaints to the Workplace Relations Commission (“WRC”) against the applicant, under the Employment Equality Acts 1998 – 2015 and the Protected Disclosures Act 2002 (the “WRC complaints” or the “complaints”).

3. Para. 7 of the affidavit of verification sworn on 10 February 2025 by the applicant's general manager, Ms. Sinead Foskin, encapsulates the issue at the ‘heart’ of these proceedings:

“… I believe and am advised that, prior to initiating proceedings against a charity, a litigant is required by statute to give notice of such intention to the charities regulator. No notice was given…” (emphasis added)

The 1961 Act.

4. The “statute” to which the applicant refers is the Charities Act, 1961 (“the 1961 Act”), s. 53 (1) of which provides:

“53. - (1) Before any legal proceedings (except legal proceedings instituted with the authority of or by the direction of the Board under section 25) in relation to any charity are commenced by any person except the attorney general, that person shall transmit to the Board notice in writing of the proposed legal proceedings and such information as may be requisite or proper or may be required from time to time by the Board, for explaining the nature and objects thereof.” (emphasis added)

5. By virtue of ss. 81 – 82 the Charities Act 2009 (“the 2009 Act,”) the Charities Regulator assumed the functions of the Board.

6. The notice parties contend that their complaints against the applicant do not constitute “legal proceedings” for the purpose of s. 53(1) and, they submit, no advance notice to the Board was required.

7. On 13 November 2024, the respondent decided that the notice parties’ complaints against the applicant “should be heard in full” (the “decision”). The applicant asks this Court to quash the decision and to remit the matter to the respondent for fresh consideration.

Submissions

8. before proceeding further, I want to express my thanks to Mr Beatty SC, for the applicant, and to Mr Jolley BL, for the notice parties. Both counsel made skilled oral submissions supplementing detailed written submissions, all of which I have carefully considered. I was also satisfied that no prejudice arose by considering the supplemental written submissions made on behalf of the notice parties and the applicant’s submissions in response. In the judgment which follows I will refer to the principal submissions made and to the authorities which appear to me to be of most relevance.

Definition

9. It is common case that the term “legal proceedings” is nowhere defined in the 1961 Act. Furthermore, neither party is aware of any reported judgment which provides a definitive interpretation of s. 53 (1). Repeal of s. 53(1)

10. It is also common case that, with effect from 27 January 2025, s. 53 (1) of the 1961 Act has been repealed (per s. 39 of the Charities (Amendment) Act, 2024).

11. In relation to the foregoing, the applicant relies on s. 27 (1)(e) of the Interpretation Act 2005 (“the 2005 Act”), which provides:

“27. – (1) where an enactment is repealed, the repeal does not – …

(e) prejudice or affect any legal proceedings (civil or criminal) pending at the time of the repeal in respect of any such right, privilege, obligation, liability, offence or contravention.” (emphasis added)

12. Furthermore, paras. 13 and 14 of the applicant’s written submissions argue as follows:

“13. Even if s. 27 (1)(e) did not preserve the effect of s. 53 (1) in respect of the proceedings, O'Donnell CJ recently re-emphasised in Odum v. Minister for Justice [2023] IESC 3 that the court nonetheless retains a discretion to hear the proceedings in such circumstances.

14. In Odum O'Donnell CJ stressed the importance of the impact of the proceedings on the actual participants and considered that:

'In general, the more clearly the case retains its essential character as a real controversy which is capable of being properly resolved and the less it resembles a contrivance for the purpose of achieving some change in the law abstracted from a real controversy, the more likely it is that a court will proceed to hear the case in the proper exercise of its jurisdiction'.”

13. It must be borne in mind, however, that the present proceedings were not instituted until March 2025 (the ex parte docket is dated 24 March 2025, as is this Court’s order granting leave to seek judicial review). This was some 2 months after the repeal of s. 53(1). In other words, there were no legal proceedings pending at the time of the repeal of s. 53(1). By the time these proceedings were commenced, the notice parties were no longer under any obligation to give notice to the Charities Regulator.

14. The applicant’s position is that the notice parties’ failure to give prior notice to the Charities Regulator in accordance with s. 53(1) means that the current complaints are essentially null and void and the WRC has no jurisdiction to hear them.

15. The applicant argues that, before the respondent could properly consider them, ‘fresh’ complaints would need to be issued by the notice parties, after notice had been given to the Charities Regulator. It might fairly be asked, what purpose would that serve and what effect would that have?

Purpose

16. In my view, no conceivable purpose could be served, in circumstances where s. 53(1) was repealed 2 months before these proceedings were ever issued. Therefore, there is simply no question of the notice parties having been under any obligation to give notice to the Charities Regulator of their complaints at any time post the commencement of these proceedings (leaving aside the question of whether s. 53(1) ever applied to the complaints).

Effect

17. As to effect, the status quo is that the notice parties have a number of complaints against the applicant which they have asked the WRC to determine. Were this Court to quash the decision and remit it to the respondent for fresh consideration (after ‘fresh’ complaints of the same nature had been made in the manner the applicant contends for) it would not alter the essential fact that the respondent has been asked to determine a range of complaints against the applicant. In other words, there would be no material change in the status quo. In the manner I will presently return to, the applicant submits that the notice parties’ complaints were already ‘out of time’ before they were made to the respondent. If that is so, the quashing of the decision following which the self-same complaints are made ‘afresh’ to the WRC will not affect the applicant’s position in any way in that the applicant is facing and will, in the foregoing scenario, continue to face complaints which the WRC has been asked by the notice parties to determine.

Moot

18. In these particular circumstances, I regard these proceedings as moot. In am satisfied that 27 (1)(e) of the 2005 Act does not apply and I take the view that the repeal of s.53(1) prior to the institution of the present proceedings means that there is no real controversy to be determined. In short, I believe that the proper exercise of this court’s discretion is to decline the application on the basis of mootness.

19. Lest I be entirely wrong in the foregoing view, I propose to continue this judgment by engaging with the various issues which seem to me to arise.

Nomenclature

20. Before proceeding further, however, I want to make the following comments in relation to nomenclature. The notice parties have, between them, initiated a total of 7 “complaints”. The applicant, for obvious reasons, does not employ the term “complaint”, preferring, instead, to describe

the notice parties’ complaints as “proceedings”, specifically “legal proceedings”, against the applicant. I

have used the term “complaint” because it reflects the approach taken by the WRC in its own documentation. In the manner examined later in this judgment, the terminology used by the WRC in its documents reflects the provisions of the statute which created the respondent.

21. To take the first, in time, of the complaints made by either of the notice parties, the WRC’s documentation describes the complaint as follows:

“Workplace Relations Complaint Form – 00047091 Receipt date: 10/11/2021 12:25:14 Complainant details… Employer details… Pay details… Respondent details… Representative details… Special facilities… Specific complaint CA – 00047091 – 001… Complaint specific details or statement Complaint specific details or in the case of a complaint relating to constructive dismissal, employment equality or pensions discrimination, a formal statement… Submission page…”

22. My choice of noun, in particular, the use of the term “complaints”, to describe the notice parties’ various claims against the applicant reflects the above, as opposed to being, itself, determinative of any issue in dispute.

Chronology

23. To understand the background to this dispute, it is appropriate to set out certain relevant facts, in chronological order, as follows.

24. The first notice party commenced employment with the applicant as an administrative assistant, in March 2019, initially as a P.A. to the then CEO and later as a Payroll & Accounts Administrator. The second notice party was employed by the applicant, from May 2014, as a Relief Social Care Worker and later as an Administration Co-ordinator. Both of the notice parties were employed by the applicant until in or about March 2023.

25. The applicant’s position is that the department in which the notice parties worked was closed by the applicant and the notice parties’ contracts of employment were terminated, by reason of redundancy. It would appear that the notice parties take issue with this.

26. Any dispute touching on the notice parties’ employment or treatment by the applicant, including, the circumstances in which the notice parties’ employment ended, is not for this Court to determine and nothing in this judgment is intended or should be interpreted as a determination of any issues in dispute before the WRC.

27. It is not in dispute, however, that between November 2021 and August 2023, the notice parties initiated a total of 7 complaints before the WRC.

First notice party’s complaints

28. The following is a summary of the complaints made by the first notice party, to the WRC, against the applicant:

Workplace Relations Complaint Form CA – 00047091 Receipt date: 10/11/2021 12:25:14 (Sexual harassment claim - discontinued, 24 May 2022);

Workplace Relations Complaint Form CA – 00051483 Receipt date: 01/07/2022 15:45:14 (ADJ – 00039947)

The complaint form states inter-alia:

“I was sexually harassed at work and my employer commissioned an independent investigation that upheld the allegations. I feel since the complaint was made I have been victimised as a result of making the complaint with my conditions of employment. I reserve the right to expand at the hearing”

Workplace Relations Complaint Form CA – 00054457 Receipt date: 11/01/2023 17:35:10 (ADJ – 00043514);

The complaint form states inter alia:

“I along with a colleague made a protected disclosure in January 2022. These concerns were raised against the CEO who upon learning of the PD resigned. Since then we have been penalised in many different forms…”

Workplace Relations Complaint Form CA – 00058372 Receipt date: 18/08/2023 13:05:10 (ADJ - 00047316).

The complaint form states inter alia:

“I along with a colleague made a protected disclosure against the CEO of the company in January 2022. Upon notification of the concerns the CEO resigned. The company informed me the matters were investigated. Since the lodgement of the PD, I have been penalised on a continuous basis.…”

Complaints 1, 2 and 3

29. Thus, there are 3 ‘live’ complaints by the first notice party against the applicant and, for ease of reference, I will refer to them as follows:

• Complaint 1 (CA – 00051483/ADJ – 00039947);

• Complaint 2 (CA – 00054457/ADJ – 00043514); and

• Complaint 3 (CA – 00058372/ADJ - 00047316).

Commencement/continuation of WRC Hearings

30. Exhibit ‘SF1’ to the applicant’s verifying affidavit includes a copy of written submissions made to the WRC, by the applicant, in its capacity as “Respondent (Employer)”. Internal page iv of these submissions’ states inter alia the following in relation to Complaints 1 and 2: “Hearing commenced on

1 August 2023 and continued on 24 October 2023”. It is not in dispute that the hearing of Complaints

1 and 3 was further continued, on 23 July 2024, whereas the hearing in respect of Complaint 3 commenced on 23 July 2024.

Second notice party’s complaints

31. The second notice party made 3 complaints to the WRC against the applicant, summarised as follows:

Workplace Relations Complaint Form CA – 00052971 Receipt date: 26/09/2022 14:15:09 (ADJ – 00042316)

The specific complaint is described inter alia as follows:

“I was penalised or threatened with penalisation by my employer for having made a protected disclosure under the Protected Disclosures Act, 2014… I along with a colleague lodged concerns against the CEO in the form of a protected disclosure in January 2022. As a result the CEO resigned and a new manager commenced in April 2022. My role within the organisation is managing finances. Since lodging the PD, I have been excluded from areas…”.

According to para. 4 (a) of the applicant's statement of grounds:

“The hearing commenced on 1 August 2023, on which occasion the adjudication officer made, inter alia, certain directions in relation to the making of written submissions. The hearing continued on 23 October 2023 (on which occasion the adjudication officer sought certain written submissions from the parties) and 23 July 2024”.

Workplace Relations Complaint Form CA – 00054433 Receipt date: 10/01/2023 15:59:09 (ADJ – 00043946)

The specific complaint is stated inter alia as follows:

“I was penalised or threatened with penalisation by my employer for having made a protected disclosure under the Protected Disclosures Act, 2014… I along with a colleague lodged a protected disclosure in January 2022. Since then there has been a continuum of penalisation. A case has been lodged on September 26th case reference number: CA – 00052971. Subsequent to the PD directly relating to the CEO, she resigned. I feel penalisation has continued…”.

According to para. 4 (b) of the applicant's statement of grounds: “The hearing commenced on

1 August 2023, on which occasion, as set out above, the adjudication officer made, inter alia, certain directions in relation to the making of written submissions before adjourning the matter.

The hearing continued on 23 October 2023, when further submissions were sought by the adjudication officer, and 23 July 2024”.

Workplace Relations Complaint Form CA – 00058304 Receipt date: 16/08/2023 11:59:10 (ADJ – 0004 7267)

The specific complaint is stated inter alia as follows:

“I was penalised or threatened with penalisation by my employer for having made a protected disclosure under the Protected Disclosures Act, 2014… I made a protected disclosure against our CEO along with a colleague in January 2022. Subsequently the CEO resigned and my employer informed me my concerns were investigated. Since then there was a continuum of penalisation…”. According to para. 4(c) of the statement of grounds, “The hearing commenced on 23 July 2024”.

Complaints A, B and C

32. For ease of reference, I will refer to the second notice party’s complaints as follows:

• Complaint A (CA – 00052971/ADJ - 00042316);

• Complaint B (CA – 00054433/ADJ – 00043946); and

• Complaint C (CA – 00058304/ADJ – 0004 7267).

WRC Hearings

33. Keeping in mind that the hearing of complaint C began on 24 July 2024, internal page iv of the applicant's July 2024 submissions to the WRC, regarding Complaints A and B stated inter alia the following: “Hearing commenced on 1 August 2023 and continued on 23 October 2023”.

August 2023

34. Whilst I accept that the WRC hearings regarding the first notice party’s Compliant 3 and the second notice party’s Complaint C did not commence until July 2024, it is a statement of the obvious that, for a year prior to that point, the respondent was participating in hearings, before the WRC, of 4 other ‘live’ complaints (i) of the same nature, (ii) by the same complainants; and (iii) under the same legislation, without, as a matter of fact, making any challenge to the WRC’s jurisdiction to hear any of the complaints (1; 2; A; and B) be that with reference to s. 53 (1) of the 1961 Act, or otherwise.

35. Nor did the applicant reserve its position as regards jurisdiction or indicate in any way that its participation was ‘without prejudice’ to jurisdiction. On the contrary, the evidence allows for a finding that the applicant was an active participant in the WRC process, from the point at which the applicant was first notified by the WRC of the complaints, to up to and including the commencement of the relevant hearings in August 2023 and beyond.

October 2023

36. The same comments apply in relation to the hearings which continued in October 2023 when, again, the applicant fully engaged in the process before the WRC, which saw hearings (regarding Complaints 1, 2, A and B) continued further.

June 2024

37. It is common case that, as of the end of June 2024, no objection whatsoever had been made by the applicant to the WRC’s jurisdiction to hear any complaints and that the first notice party’s claims (1 – 3) and the second notice party’s claims (A – C) were grouped together, by the WRC, for hearing on

23 July 2024.

July 2024 Objection

38. It was not until July 2024 that the applicant's solicitors raised, for the very first time, an objection to the WRC's jurisdiction, by means of written submissions which stated inter alia the following with respect to complaints 1 - 3:

“… a complainant cannot lawfully refer a complaint against a registered charity to a court or other body engaged in the administration of justice such as the Workplace Relations Commission without having first given written notice of the intended claim to the charities regulator. The respondent is unaware of the complainant having done so in this case…

Unless the complainant can produce evidence of her having given such written notices to the charities regulator before filing these complaints, then she must be deemed to have failed to have complied with a condition precedent to initiating the claims and, with all due respect, the WRC has no statutory authority or jurisdiction to hear them…

… The respondent is mindful that there have been many cases against charities heard under the Workplace Relations Act 2015 over the last nine years. It is not a matter for the respondent to comment on those cases, but it assumes that in those cases either (a) the provisions of the Charities Act were complied with or (b) no objection based on the Charities Act was raised by the relevant respondents. As such, it is respectfully submitted that the instant cases and the argument being made herein have no bearing on those previous WRC decisions.

For the avoidance of doubt, such an objection is being raised in the instant matters. Unless the complainant can produce evidence to satisfy the adjudication officer that the requirements of the Charities Act were satisfied before he initiated these proceedings on 26 September 2022,

10 January 2023 and 16 August 2023, they were never lawfully commenced and the WRC is precluded by statute from proceeding any further.

The respondent notes that the complainant could now belatedly seek to comply with section 53

(1) and issue a notification to the charity’s regulator. However, even if that happened, she would then need to file a fresh complaint or complaints as the previously-filed complaints would have pre-dated any such notice and authority and were not lawfully filed…”

(emphasis added) Limitation periods

39. The significance of the final paragraph is explained by the fact that the limitation period for the bringing of complaints to the WRC in respect of the Employment Equality Acts and Protected Disclosure legislation is 6 months (and, on application, can be extended up to a maximum of 12 months) from the date of the most recent alleged discrimination/penalisation.

Applicant’s delay

40. I pause to say two things. First, whereas the applicant stated in July 2024 that “The respondent is unaware of the complainant having…” given prior notice to the Charities Regulator of the complaints, there is no evidence that anything prevented the applicant/respondent from raising this issue at the very outset and prior to its active engagement with the WRC process. The state of the evidence before me is that the applicant received notice of the complaints and engaged fully with the WRC process without ever asking either the notice parties, or the WRC, whether prior notice had been given by the notice parties to the Charities Regulator.

41. By way of a second observation, the delay between (i) notification to the applicant, by the WRC, of Complaints 1,2, A and B and (ii) the raising by the applicant of its objection to the WRC’s jurisdiction very far exceeds the 6 month time-limit for the bringing of complaints to the WRC.

42. In oral submissions on behalf of the applicant, it was contended that complaints were already ‘out of time’ before they were made to the WR and, therefore, nothing turns on whether the applicant raised, at the very outset (as opposed to in July 2024) what the applicant contends to be the ‘jurisdictional bar’ created by s.53(1). For the purpose of the present analysis, I take the view that it would be inappropriate for this Court to make any determination as to whether any of the notice parties’ complaints to the WRC were made outside the statutory time limit, or not. Doing so would be, in my view, for this Court to adopt the role of decision-maker in relation to the WRC complaints. In my view, this would be to trespass, impermissibly, on the jurisdiction which the Oireachtas has chosen to confer upon the WRC. This Court has no authority to ‘step’ into ‘the shoes’ of the decision-maker.

Merits

43. On the topic of not stepping into the shoes of the decision-maker, it is also appropriate to note that, during the hearing, submissions were made on behalf of the applicant, including the following:

“You don’t withdraw a good sexual harassment claim”;

“To suggest that these are meritorious claims is a misdescription in the extreme”;

“The applicant does not believe there is any merit to the notice parties’ claims”.

44. This Court has no jurisdiction to determine the merits of any of the notice party’s claims and, therefore, the foregoing submissions, which are plainly directed to merits, are of no relevance to the question at the ‘heart’ of this application. To the foregoing I would add the obvious comment that the will of the Irish People, as expressed in legislation enacted by the Oireachtas, is for merits-based determinations of complaints to be made by the WRC and, later in this judgment I will look at the WRC’s jurisdiction, per the Workplace Relations Act 2015 (the “2015 Act”).

45. For the foregoing reasons, and for the purpose of the present analysis, I must respectfully reject the applicant’s submission to the effect that the complaints were made ‘out of time’ and, therefore, the timing of its objection to the WRC’s power to hear the complaints made no difference.

46. There was, without doubt, significant delay by the applicant in raising any objection to the WRC’s jurisdiction and, in the manner presently explained, the evidence supports a finding that the applicant’s delay has made a material difference, prejudicial to the notice parties.

Commenced v lawfully commenced

47. It is common case that hearings of 4 of the 6 ‘live’ complaints (i.e. 1, 2, A and B), in fact, commenced in August 2023. It is also common case that it was almost a year after these hearings commenced before the applicant argued, for the very first time, that they were never “lawfully commenced”.

Statute barred

48. In light of the evidence, it is open to me to find that, were the notice parties to be required to issue ‘fresh’ complaints to the WRC (i.e. to do so after the applicant raised the question of jurisdiction, for the first time, in July 2024) those complaints would be prima facie ‘statute barred’ (more than 6 months having elapsed since the parties were first before the WRC, in August 2023 (without, as I say, the applicant raising any issue regarding the WRC’s jurisdiction to deal with the complaints in August 2023 or in the 11 months which followed). For the notice parties’ complaints to be statute barred would very obviously cause significant prejudice to them.

49. However, it is not unfair to say that, whilst ignoring (i) their delay in objecting to the WRC’s jurisdiction; and (ii) the prejudice to the notice parties flowing from their delay, the aim of the applicants is to ensure that the complaints are found to be statute barred.

July 2024 Submissions

50. Remaining with the ‘timeline’, in July 2024, the applicant made submissions to the WRC regarding complaints A – C, (i.e. the applicant, as Respondent/Employer, asserted that the WRC had no jurisdiction to deal with any of the second notice party’s complaints). This was put, as follows, on page xiii of the applicant’s written submissions regarding Complaints A - C:

“… it appears that the complainant's never notified the charities regulator of the intended proceedings as required by statute. In those circumstances, the complainants have failed to comply with a condition precedent to initiating the complaints. Given that failure on the part of the complainants, the Charities Act 1961 serves as an absolute bar to these complaints being heard. The WRC can have no jurisdiction where the complainants have failed to comply with a statutory condition precedent before instituting the instant matters. In those circumstances, the adjudication officer is asked to issue a preliminary decision noting that she has no jurisdiction and/or that the complaints are not well-founded given the absence of compliance with the provisions of the Charities Act”. (emphasis added)

51. At the risk of repetition, these submissions were first made, in July 2024, notwithstanding the active engagement on the part of the applicant with the WRC process at all stages up to that point.

52. As noted earlier, although the applicant engaged fully with the relevant WRC hearings which, in fact (i) commenced in August 2023; (ii) continued to October 2023; and (iii) were continued further, to July 2024, it was not until July 2024 that the applicant submitted, for the first time, that the hearings “were never lawfully commenced”.

Notice, not consent

53. It is common case that, if the applicant is correct in its interpretation of section 53(1), the duty created was to notify the Charities Regulator of the intention to commence legal proceedings, there being no requirement for the latter’s consent to bring proceedings. The applicant’s July 2024 submissions to the WRC, regarding s.53(1) put matters as follows:

“It merely requires that a plaintiff or complainant give prior notice to the Charities Regulator before initiating a claim. However, where the plaintiff or complainant fails to give such prior notice, the legislation serves as an absolute bar to the proceedings.”

54. I pause to observe that even these two short sentences illustrate why the meaning of s.53(1) is not as obvious or straightforward as the applicant contends. Whilst the applicant employs the terms “claim” and “proceedings” interchangeably, the latter appears in s. 53(1), but the former does not. By the same token, the applicant uses the words “plaintiff” and “complainant”, without either term appearing in s.53(1).

55. To say the foregoing is not to criticise. It is simply to illustrates the reality that the availability of synonyms to describe legal proceedings (e.g. legal claims, or complaints regarding legal rights) does not answer the question at the heart of this application.

Bar Review

56. Recalling that the applicant was the “Respondent” for the purposes of the notice parties’ claims to the WRC, the applicant’s written submissions to the WRC went on to state:

“In that regard, the Respondent asks the adjudication officer to note the contents of an article on the subject by Felix McEnroe SC from the Bar Review which is attached…” (emphasis added)

57. The aforesaid article (which the learned author published in the Bar Review; Volume 27; Number

2 – April 2022) is entitled “A hidden jurisdiction trap” and sub-titled “Practitioners should be aware of the requirement to provide written notice to the Charities Regulatory Authority of an intention to commence any legal proceedings in relation to a charity”. A copy of same was exhibited in the applicant’s grounding affidavit, and states inter alia:-

“In any legal proceedings in relation to a charity, there is a statutory condition preceded that prior to those proceedings a person must have given notice to the CRA of their intention to commence those proceedings”

58. Acknowledging that the question is for this Court to decide, irrespective of the views expressed by others, however learned and experienced, it is fair to say that there is nothing in this scholarly article by such an eminent lawyer to suggest that WRC complaints comprise legal proceedings captured by the s.53 (1) notification requirement. On the contrary, the learned author’s conclusion would appear to be that any “legal proceedings” within the meaning of s. 53(1) captures all court proceedings against a charity, civil or criminal. His analysis was as follows:

“There is no reported judgment that provides a definitive statutory interpretation of section 53(1) as amended. It appears that the wording “any legal proceedings” in section 53(1) applies to all types of civil or criminal proceedings. Furthermore, there is no definition in the Act of the term “legal proceedings”. It is suggested that a court required to consider the correct statutory interpretation of these words could have regard to the statutory definitions of a “Cause”, a “Suit”

and an “Action” in section 3 of the Supreme Court of Judicature Act (Ireland) 1877 as amended, which provides:

“‘Cause’ shall include any action suit or other proceeding between a plaintiff and the defendant and any criminal proceedings… ‘Suit’ shall include action.

‘Action’ shall mean a civil proceeding commenced by writ, or in such other manner as may be prescribed by rules of Court, and shall not include a criminal proceeding…”

The definition of the term ‘Cause’ appears to support the view that the statutory requirement contained in section 53(1) as amended to give notice in writing to the CRA of an intention to commence legal proceedings is applicable to both civil and criminal proceedings. In Greene, 51 L.J.Q.B. 41 sub nom. Green v. Penzance, 6 APP Cas. 657. Shelbourne C. stated that:

“’Cause’ is not a technical word signifying one kind or another, it is a causa jurisdictionis, any suit, action, matter or other similar proceeding competently brought before and litigated in a court.”

The use of the words “any legal proceedings” in section 53(1) appears inconsistent with restricting the application of this statutory provision to civil proceedings. The term “any” has been judicially construed as being a word that may exclude limitation or qualification.”.

59. Returning, once more, to the ‘timeline’, the notice parties delivered written submissions in response to those of the applicant and a copy of same comprises exhibit ‘SF3’ to the applicant’s verifying affidavit. In reply, the applicant delivered further submissions, again, arguing that the notice parties had an obligation, under s. 53(1) of the 1961 Act, to notify the Charities Regulator, which duty had not been complied with and, therefore, the complaints were never lawfully initiated and the WRC had no jurisdiction or authority to hear them.

The 13 November 2024 decision

60. On 13 November 2024, the WRC issued the decision which is challenged in the present application. Having quoted s. 53 (1) of the 1961 Act verbatim, the decision stated inter alia:

“Since the 2009 Act, the Board is now the Charity Regulatory Authority (CRA) (section 82).

Applying a literal interpretation to section 53 (1) of the 1961 Act, it is mandatory to put the CRA on notice of an intention to proceed with “legal proceedings”.

The question is whether proceedings before the WRC constitute ‘legal proceedings’ for the purposes of the CRA notification requirement set down in the 1961 Act. It is noted that neither the 1961 Act nor the 2009 Act defines proceedings. It is arguable that the definition of legal proceedings generally means any step in legal action criminal or civil. The question as to its applicability to statutory proceedings such as WRC is unclear.

Section 41 of the Workplace Relations Act 2015 (‘the 2015 Act’) and Schedule 5 of the same Act give the adjudication officer the duty to investigate a complaint. The questions raised by the respondent give rise to considerations as to whether the absence of notification to the CRA prior to engaging into litigation bars the complaint from proceeding with the complaint before the WRC and whether an AO has jurisdiction to assess compliance with section 53 (1) of the 1961 Act. The WRC is a creature of statute which has a duty to investigate the claim within its remit. When investigating a complaint, the adjudication officer's functions stem from the director general's delegation pursuant to section 41 of the Workplace Relations Act 2015 and the only bars to investigating complaints are also set out in that section. I refer to the strict interpretation of the limit of the power given to the WRC by the legislator in the Labour Court in its determination in Boots Retail (Ireland) Limited v. Workplace Relations Commission. Similarly, the legislator has not given the AO the power to implement section 53

(1) of the 1961 Act. I have therefore decided that the complaints should be heard in full. The Irish law times 20 2341 the 126 – 128 contains an article on “reticence to determine preliminary issues confirmed”, were in a recent High Court decision Phelan J. Affirmed the reticence of the course to determine specific questions as preliminary issues. In Singh v. Corbett [2023] IEHC 27 she noted:

“the jurisdiction to direct the trial of a preliminary issue is one to be exercised with great caution… Which stems from litigation experience which shows that it may be very difficult in some cases to predict in advance of the hearing what facts might be critical in determining the issues to which they potentially give rise to”.

The final point given consideration is that the Labour Court cannot remit the complaints back to the WRC for a fresh hearing in the event that a preliminary decision is rejected as not valid and the adjudication officer’s decision is overturned.

For the reasons above, I have decided that the complaints, some of which have been in process for over two years, should now proceed. A date for relisting will be issued to the parties in due course....” (emphasis added)

61. The foregoing allows for a number of findings, as follows. First, the decision which was, in fact, made by the first named respondent was as follows: “I have therefore decided that the complaints should be heard in full”. Second, that decision was based, explicitly, on the reasoning which preceded it (made clear by the decision maker’s use of the word “therefore”). It seems fair to say that the reasoning ‘boiled down’ to the WRC’s limited statutory jurisdiction, as accurately set out by the Adjudication Officer, namely “The WRC is a creature of statute which has a duty to investigate the claim within its remit. When investigating a complaint, the adjudication officer's functions stem from the director general's delegation pursuant to section 41 of the Workplace Relations Act 2015 and the only bars to investigating complaints are also set out in that section”. Third, the fact that the decision was followed by a number of comments does not make the first or second observations any less accurate. Indeed, the fact that the decision maker made what might be called obiter comments is underlined by the reality that, having made them, the first named respondent simply repeated the decision which she had previously come to, saying: “I have decided that the complaints, some of which have been in process for over two years, should now proceed”.

In process for over two years

62. The applicant takes no issue with the fact that some of the complaints had “been in process for over two years” (per the first named respondent’s description). This highlight (i) the applicant’s participation in the WRC process for a very lengthy period before making any objection to the WRC’s jurisdiction; and (ii) how late the applicant chose to make the objection to the WRC’s jurisdiction.

January 2025

63. Remaining, for the moment, with the ‘timeline’, by letters dated 7, 8 and 22 January 2025, the WRC wrote to the applicant indicating that substantive hearing dates had been fixed for 25 and 26 February 2025 in relation to the notice parties’ various complaints against the applicant.

February 2025

64. The within proceedings were issued on 11 February 2025. By letter dated 19 February 2025, the applicant's solicitors wrote to the WRC informing them that the proceedings had been issued and seeking a postponement of the determination by the WRC of the complaints.

Non-participation by the WRC

65. By letter dated 19 February 2025, the WRC agreed to adjourn the hearings until after the date of the application for leave to seek judicial review, being 24 March 2025. The WRC also gave notice that it would not be participating in the judicial review proceedings. As matters stand, the complaints before the WRC have been put ‘on hold’ until the outcome of the within proceedings and the respondents have not played any active part in these proceedings.

Engagement by the applicant

66. In the manner examined earlier, the evidence supports a finding of fact that the applicant engaged fully with the WRC complaints process, from the point of notification of the complaints up to July 2024 (specifically, in relation to the hearing of complaints 1,2, A and B). This is not a situation where, for example, the applicant reserved its position on the question of jurisdiction at the hearings which commenced in August 2023 and continued in October 2023. As to the reason why the challenge to jurisdiction came many months after this engagement by the applicant in the WRC process, the only evidence before me is the following:

“8. The various proceedings were first collectively grouped together for hearing on 23 July 2024. On reviewing his file in the lead up to the said hearing, the solicitor for the applicant noted that the notice party had neither confirmed nor furnished any documentary record of their having complied with the requirements of the Charities Act 1961. He therefore prepared written submissions on the matter and furnished same to the Workplace Relations Commission and the representative of the notice parties on 19 July 2024…

9. At the hearing on 23 July 2024, the solicitor for the applicant raised the matter. It became apparent, based on the oral response of the representative for the notice parties, that they had not complied with the statutory requirement to give notice of to (sic) the charities regulator before commencing their proceedings. The applicant had not been aware of the notice parties said failure prior to July 2024 and had accordingly not sought that the proceedings be dismissed on that basis prior to the said date.”

[applicant’s affidavit of verification]

67. The evidence before me allows for a finding of fact that the applicant’s challenge to the WRC’s jurisdiction was made so ‘late in the day’ for the simple reason that it was not until the ‘run up’ to the July 2024 hearings that the applicant’s solicitors “noted” the potential to make such a challenge.

68. In other words, it was not until July 2024 that the applicant’s legal representative first ‘came up’ with the argument that prior notice to the Charities Regulator was required. This is not, for a moment, to criticise the solicitors in question, personally or professionally. It is, however, to engage closely with the evidence, as I must.

69. In the present case, there is no evidence to suggest that what the applicant’s solicitor “noted” in July 2024 could not have been noted earlier, in particular, before the applicant decided to and did in fact engage, without objection, in the WRC process.

70. At para. 67 of the applicant’s written submissions, it is asserted that the jurisdictional “objection was raised as soon as the applicant had knowledge of the defect”. With respect, this submission ignores the fact that the was no impediment to the relevant “knowledge” being obtained by the applicant at the very outset and the evidence discloses no explanation or excuse for why it was not.

71. It does not seem unfair to say that the logic of the applicant’s submission is that, irrespective of how ‘late in the day’ a lawyer identifies the basis for a jurisdictional challenge, the date of knowledge, for the purpose of assessing the twin issues of delay and the consequences of same is when the client is advised of same. With respect, I cannot agree.

72. On behalf of the applicant, oral submissions were made during the hearing to the effect that it was not until July 2024 that the applicant learned of the basis for a jurisdictional challenge. Building on the foregoing submission, it was argued on behalf of the applicant that they “acted rapidly” and that “There was no question of the applicant sitting on its hands”. These submissions have a surface attraction only.

73. Whereas the applicant asserts that it only learned about the absence of s.53(1) compliance by the notice parties in July 2024, this is not a situation where any act or omission on the part of either the notice parties, or the WRC, explains the failure on the part of the applicant or its solicitor to learn or note, until July 2024, the issue on foot of which a jurisdictional objection was made. As I say, there is simply no evidence of anything which prevented the applicant’s solicitor from noting, at the very outset, what was not noted until July 2024.

Conduct

74. In my view, the applicant’s suggestion to the effect that the ‘clock’ only started to ‘run’, in July 2024, as regards contesting the WRC’s jurisdiction is misplaced. The very ‘late in the day’ objection (to the effect that the hearings were never lawfully commenced) cannot ‘undo’ the reality that the hearings did, in fact, commence and continued for a lengthy period with the full participation of the applicant, who chose to conduct itself in that manner. Whilst it involves repetition, the evidence allows for the applicant’s conduct to be summarised, as follows:

• The applicant’s response to being informed by the WRC of the notice parties’ complaints was not to object to the WRC’s jurisdiction;

• Nor did the applicant indicate at the outset, or ever, that it reserved its position on the question of whether the WRC’s jurisdiction or was participating ‘without prejudice’ to jurisdiction;

• The applicant had the benefit of legal advice and representation;

• The applicant does not suggest that it was under any undue time pressure or that it ever lacked time to consider its position;

• The applicant made a conscious decision to engage with the WRC process;

• The applicant was a full participant at the WRC hearings which commenced in August 2023;

• The applicant continued to be an active participant at the hearings which continued in October 2023 and beyond;

• the applicant’s engaged in the WRC process up to and including the end of June 2024, without making any objection to the lawfulness of the WRC process;

• despite the fact that WRC hearings commenced in August 2023, with the full participation of the applicant, it was not until July 2024 that the applicant asserted, for the first time, that the hearings were never lawfully commenced;

• in objective terms, the applicant’s objection to jurisdiction was made very ‘late in the day’ and could reasonably be considered as a complete volte face, having regard to the applicant’s prior participation in the WRC process;

• whereas the applicant, through its legal representatives, objected to the WRC’s jurisdiction in July 2024, nothing prevented the applicant’s lawyers from knowing, prior to the commencement of the hearings, the basis for the applicant’s objecting to jurisdiction;

• No act or omission by the notice parties or the WRC prevented the applicant from challenging the WRC’s jurisdiction prior to, or at the commencement of, the hearings in August 2023;

• No valid excuse has been provided for the applicant’s delay in challenging the jurisdiction of the WRC.

75. In short, the evidence before me discloses no valid reason or excuse for the applicant’s delay in raising the objection to jurisdiction.

76. Furthermore, the applicant’s conduct at all times prior to making written submissions in July 2024 was, in objective terms, consistent with – indeed, only consistent with – a party which took no issue with the WRC’s jurisdiction to deal with complaints by means of hearings with which it was actively engaged.

77. Without intending any disrespect, the applicant effectively argues that, notwithstanding its

decision to engage fully with the WRC process, and its active participation (over 2 years, according to the WRC) including multiple hearing dates, the fact that the applicant’s legal adviser “noted” the basis for a jurisdictional challenge many months, if not years, into that process, allows the applicant’s active participation, and the consequences of same, to be set aside and ignored. I cannot agree.

78. The notice parties’ Statement of Opposition contains, inter alia, the following statements which each of the notice parties have sworn to be correct, in their respective affidavits of verification:

“Notwithstanding the commencement of the hearing in August 202[3] the Applicant… did not until 23 July 2024 raise any issue with the notice parties contended requirement to give notice to the charities regulator… As a consequence of the foregoing the applicant is estopped and precluded from promoting an argument with respect to a ‘precondition to jurisdiction’ it having failed to identify any issue in respect of which it now makes such contention despite the conduct of the respondent …”

[paras. 7 and 8] (emphasis added)

Infer

79. These statements, averred by each of the notice parties to be correct, are to the effect that due to the conduct of the applicant prior to July 2024, the notice parties inferred that the applicant did not have an objection to the jurisdiction of the WRC to deal with their complaints.

Estoppel

80. The notice parties argue that, in light of the applicant’s conduct in relation to the notice parties’ complaints (the subject of hearings which commenced in August 2023, continued in October 2023, and resumed in July 2024) the applicant is estopped from raising an objection to the WRC’s jurisdiction to hear their complaints. I agree.

Representation

81. In my view, it cannot avail the applicant to submit that: “At no point did the applicant make any representation that it would accept the notice party’s failure to comply with section 53(1)” (see para.

67 of the applicant’s written legal submissions). This submission ignores the following realities:

(i) the 1961 Act does not state that intended complaints to the WRC must be notified, in advance, to the Charities Regulator;

(ii) there is nothing in the 2015 Act which imposes such an obligation;

(iii) there is nothing in the WRC’s processes which required the notice parties to confirm to any party or to furnish (to quote from the applicant’s affidavit): “any documentary record of their having complied with the requirements of the Charities Act 1961”;

(iv) the applicant’s legal representative does not seem to have ‘come up’ with the objection to jurisdiction (based on the contended-for application, to the notice parties’ complaints, of s.53(1) of the 1961 Act) until July 2024; and

(v) it also seems fair to describe the applicant’s objection to jurisdiction, when eventually made, as being a novel one (evidenced by the foregoing and by (a) the fact that there would not appear to be any decided case on the s.53(1) point which the applicant raised; and (b) the following acknowledgement in the applicant’s July 2024 submissions to the WRC “The Respondent is mindful that there have been many cases against charities heard under the workplace relations act 2015 over the last 9 years” coupled with its stated assumption that “no objection based on the charities act was raised by the relevant respondents”).

82. In the foregoing circumstances, it is wholly unsurprising that the applicant did not explicitly state ‘we do not object to the WRC’s jurisdiction’. Insofar as the applicant purports to rely on the absence of explicit representation that a jurisdictional point would not be taken, I am satisfied that the evidence supports a finding that the applicant “has engaged in… conduct from which it was reasonable to infer, and from which it was in fact inferred…” that the applicant did not object to the jurisdiction of the WRC (See Doran v. Thompson [1978] IR 223, per Henchy J).

83. In short, I take the view that the entitlement on the part of the applicant to challenge the WRC’s jurisdiction was lost by reason of the conduct of the applicant in this case.

Detriment / Unconscionability

84. In opposing the estoppel argument, the applicant submits inter alia that “no detriment or unconscionability arises such as to estop the applicant in the manner contended for” (para. 59 of the applicant’s written legal submission). I must, respectfully, disagree.

85. In the manner discussed earlier, the evidence before me allows for a finding that, were the notice parties required to do what the applicant argues for (i.e. to submit the self-same complaints ‘afresh’ to the WRC following notification to the Charities Regulator) all complaints would be prima facie statute-barred, by reason of the applicant’s delay in raising the jurisdictional challenge. The foregoing is true even if the notice parties gave notification to the Charities Regulator, in July 2024, immediately after the applicant first raised the jurisdictional challenge. The foregoing seems to me to constitute real detriment. It is also detriment which would not have arisen, had the applicant made an objection to jurisdiction, promptly (e.g. following receipt of notification of the notice parties’ claims to the WRC and/or at the commencement of the hearings, in August 2023).

86. As touched on earlier, the applicant’s very ‘late in the day’ objection could also be fairly characterised as a complete volte face, given its conduct up to that point. In the very particular circumstances of this case, including the detriment to which I have referred, it would be unconscionable, in my view, to permit the applicant to raise, so late, an objection it failed to raise for so long.

87. I take this view also conscious, were I to permit such a late objection to jurisdiction, the likely effect would be to deny the WRC the opportunity to determine each complaint in accordance with the provisions of the 2015 Act, as envisaged by the Oireachtas.

88. I am fortified in the foregoing views by the decision of Ms. Justice Hyland in Farrelly v. Kerry County Council [2022] IEHC 298, upon which the notice parties rely, wherein the learned judge observed that:

“In all those cases there was a clear knowledge of the basis for objection, a time period during which reflection could take place, the opportunity for the persons in question to be legally advised and a conscious decision not to object despite the availability of an opportunity to do so. None of those factors are present in the instant case.”

89. In the present case, the applicant had the benefit of legal representation at all material times and had every opportunity to make an objection to jurisdiction based on s. 53 (1). I take the view that, having engaged, with the benefit of legal advice, in the WRC process concerning the complaints by the notice parties, the applicant is estopped from challenging, in July 2024, the jurisdiction of the WRC to conduct that very process in which the applicant has been an active participant from the outset.

90. Lest I be entirely wrong in all of the foregoing views, I now turn to the substance of the applicant’s case.

Certiorari

91. In seeking an order of certiorari in respect of the decision, the applicant's claim can be summarised as follows:

• The adjudication officer erred in law in considering that proceedings before the Workplace Relations Commission (“WRC”) were not “legal proceedings” within the meaning of s. 53 (1) of the Charities Act 1961;

• The adjudication officer acted irrationally in considering the 1961 Act to be of no application to the WRC; and

• The adjudication officer took into account irrelevant considerations in considering the potential consequences of an appeal against her decision in interpreting s. 53 (1) of the 1961 Act.

Statutory interpretation

92. The third issue can be readily disposed of, given the decision analysed earlier. As dealt with in paras. 60 and 61 of this judgment, the decision made by the WRC was simply that the “complaints should be heard in full” and no irrelevant considerations were taken into account. The rationale for the

decision was clearly set out, namely “The WRC is a creature of statute which has a duty to investigate the claim within its remit” and “When investigating a complaint, the adjudication officer's functions stem from the director general's delegation pursuant to section 41 of the Workplace Relations Act 2015 and the only bars to investigating complaints are also set out in that section”. Having made certain obiter comments, the decision was repeated, namely “the complaints, some of which have been in process for over two years, should now proceed”.

93. On the question of statutory interpretation, there is no dispute between the parties as to the governing principles. As the Chief Justice made clear in Chain Wen Wei v. Minister for Justice [2024] IESC 58 (“Chain Wen Wei”):

“… The words of a section are the first port of call in its interpretation, while the courts must construe those words having regard to the context of the section and of the Act in which the section appears, the pre-existing relevant legal framework, and the object of the legislation insofar as discernible, the onus is on those contending that a statutory provision does not have the effect suggested by the plain meaning of the words and by the legislature to establish this.”

94. As Mr. Justice Murray noted earlier in his judgment in Heather Hill Management Company v. An Bord Pleanála [2022] IESC 43 (“Heather Hill”):

“… in no case can the process of ascertaining the 'legislative intent' or the 'will of the Oireachtas'

be reduced to the reflexive rehearsal of the literal meaning of words, or the determination of the plain meaning of an individual section viewed in isolation from either the text of a statute as a whole or the context in which, and purpose for which, it was enacted.” (para. 109).

95. Similarly, in Bookfinders v. Revenue Commissioners [2020] IESC 60, (“Bookfinders”) O’Donnell

J. (as he then was) held:

“It is not, and never has been, correct to approach a statute as if the words were written on glass, without any context or background, and on the basis that, if on a superficial reading more than one meaning could be wrenched from those words, it must be determined to be ambiguous…” (para. 52).

96. The applicant also relies on the Supreme Court's decision in Zalewski v. Adjudication Officer & Ors [2022] 1 IR 421; [2021] IESC 24 (“Zalewski”) wherein O'Donnell J. (as he then was) found that proceedings before the WRC constituted “the administration of justice”. A finding that the determination of complaints by the WRC constitutes the administration of justice does not answer the question as to whether WRC complaints constitute legal proceedings for the purpose of s. 53(1).

97. The applicant submits that the court need go no further than the plain, ordinary meaning of the words used in section 53(1). According to para. 30 of the applicant’s written submissions: “The plain, ordinary meaning of ‘legal proceedings’ in s. 53 (1) clearly encompasses any claim for the determination of the legal rights and obligations of a private party and a charity”. Counsel for the applicant also made oral submissions to the effect that WRC claims are obviously captured by the phrase “legal proceedings”, given that “legal proceedings” means “proceeding against someone, relying on the law”.

98. The foregoing may well be an accurate statement, in general terms. However, this Court’s task is not to decide the meaning of “legal proceedings” in general, or in a vacuum. Without intending any disrespect, it seems to me that the applicant is focusing exclusively on just two words, i.e. “legal proceedings”, and arguing for their meaning in the abstract, as opposed to in the context in which they appear in s. 53(1), within the 1961 Act as a whole, and taking appropriate account the wider statutory landscape.

99. In light of the guidance given by the Supreme Court in Chain Wen Wei; Heather Hill; and Bookfinders, it seems to me that the task of interpreting of the words which appear in s.53(1) in their proper context requires a consideration of all of the following: (i) the 1961 Act; (ii) the 2015 Act; and

(iii) such further assistance as can be found in relevant authorities.

The 1961 Act

100. A useful starting point is to understand the purpose of the 1961 Act. In the “Law of Charities in Ireland” (Oonagh Breen & Philip A, Smith; Bloomsbury Professional, 2019), the learned authors state (at p. 267, [note 47]):

“The Commissioners of Charitable Donations and Bequests for Ireland (‘CCDB’) were established by the Charitable Donations and Bequests Act 1844 to ensure ‘the more effectual application of charitable donations and bequests in Ireland’. They were mandated most recently under the Charities Acts 1961 and 1973 to provide services to trustees of charities and to assist in the carrying out of the intentions of persons making donations and bequests to charity. Under Part

6 of the Charities Act 2009, the CCDB were dissolved and their functions were transferred to the Charities Regulator…” (emphasis added)

101. The learned authors of the ‘Law of Charities in Ireland’ went on to state inter alia the following (p. 371-372):

“[8.84] The Charities Act 1961 carried over… the… CCDB… which operated as an advisory body with limited statutory powers to protect and preserve charity funds, rather than as a charity commission per se. In many instances, the Charities Acts required that the CCDB obtained the consent of the attorney general before exercising its powers. Thus, the Board could, ‘with the previous consent of the attorney general, sue for the recovery of any charitable gift intended to be applied in the State which is improperly withheld, concealed or misapplied’ [Charities Act 1961, s. 23]. Similarly, the Board could (and indeed did) certify a number of cases to the attorney general but the attorney general always exercised his statutory discretion not to proceed in any of these cases [Charities Act 1961, s. 26 (2)].

[8.85] The Charities Act 2009 dissolved the commissioners for charitable donations and bequests and transferred its powers to the new Charities Regulatory Authority. The 2009 Act also transfers the functions of the attorney general in relation to charities to the Charities Regulatory Authority. [Charities Act 2009, s. 38]. This would seem to imply that it is now the role of the charity's regulatory authority to take a proactive public interest stance in the protection of charitable assets in lieu of the attorney general. Since the charity's regulatory authority has absorbed both the functions of the attorney general and the CCDB, it follows that the charity's regulatory authority should not need any permission before proceeding directly with cases to protect or recover charitable property.” (emphasis added)

The protection of charitable funds

102. In summary, the 1961 Act consolidated and amended the law governing charities in Ireland and granted the Board additional powers with respect to charitable trusts, including, the power (with the consent of the attorney general) to sue for the recovery of charitable gifts withheld, concealed or misapplied. The Board was also given specific powers in relation to the administration of charity land, including, authority to sell, exchange or lease and to apply charitable funds for improvements or repairs. The 1961 Act also clarified situations in which charitable gifts could be applied cy-pres to a new charitable purpose, if the original purpose could no longer be fulfilled. The Board (which was continued in being by the 1961 Act) was the regulator in respect of charities until its functions were assumed by the Charities Regulator (per the 2009 Act).

Aim

103. It seems fair to say, however, that the fundamental aim of the 1961 Act is the protection of charitable gifts and bequests (or “charitable funds”). In furtherance of that aim, the 1961 Act is concerned with, inter alia, the identification; recovery; application; and transfer of charitable funds (i.e. what might be called “charity matters”). This is perfectly clear when one looks at specific provisions in the 1961 Act, to which I now turn.

Section 23

104. Section 23 of the 1961 Act provides:

"(1) The Board may, with the previous consent of the Attorney General, sue for the recovery of any charitable gift intended to be applied in the State which is improperly withheld, concealed or misapplied.

(2) The Board shall apply every charitable gift recovered by them under this section to charitable purposes according to the intention of the donor.

(3) The Board may deduct from any charitable gift recovered by them under this section all costs, charges and expenses incurred by them in such recovery." (emphasis added)

105. Two comments seem appropriate. First, the reference in s. 23 to the Board’s power to “sue” is aimed at the recovery of charitable funds. In other words, the suit envisaged by the section concerns a charity matter, as opposed to a matter unconnected with the aims of the 1961 Act. Second, to sue for the recovery of a charitable gift, said to be improperly withheld, refers the bringing of legal proceedings to be determined by a court.

Section 24

106. Similar comments apply in relation to s. 24, by which the Board was granted the power to sue without the prior consent of the attorney general:

"Whenever any sum is payable to or for any charitable purpose, the Board or the trustees of the charity, with the consent of the Board, may sue for and recover it, from the person for the time being liable therefore or whose duty it is to pay it, as a simple contract debt in any Court of competent jurisdiction without obtaining the consent of the Attorney General." (emphasis added)

Sections 25 and 26

107. As well as conferring on the Board the power to sue, the 1961 Act granted the Board the power to authorise or direct the institution of legal proceedings. This is clear from sections 25 and 26, which provide:

"25. – if it appears to the Board desirable that legal proceedings should be instituted with respect to any charity by any person, other than the Attorney General, the Board may authorise or direct those legal proceedings to be instituted and give such directions in relation thereto as they think proper, and thereupon such legal proceedings may be instituted.

26 – (1) If in any case it appears to the Board desirable that legal proceedings with respect to any charity should be instituted by the Attorney General, the Board may certify the case, in writing under the hand of the Secretary, to the Attorney General, with such statements and particulars as may in their opinion be required for the explanation of the case.

(2) Where a case is so certified to the Attorney General, he may, if he thinks fit, institute such legal proceedings as he considers proper in the circumstances of the case." (emphasis added)

108. At para. 32 of the applicant’s written legal submissions it is submitted that, as well as appearing in s. 53 (1) the term “legal proceedings” also appears in ss. 25 and 26 of the 1961 Act and, because of this, the applicant argues: “it is notable that ss. 25 and 26 – in the same way as s. 53 (1) – do not limit their application to court proceedings”. In relation to these submissions, three observations seem appropriate.

109. First, the power to authorise the taking of “legal proceedings” (be those by a third party or “instituted by the attorney general”) would clearly appear to relate to legal proceedings to be determined by a court.

110. Second, I can see nothing in sections 25, 26 and 53, or in the 1961 Act as a whole, to suggest that the Board is concerned with legal proceedings (or applications) to a body other than a court.

111. Third, the powers conferred on the Board relate to the institution of proceedings “with respect to any charity" and it seems uncontroversial to suggest that whether or not it appears “desirable” to the Board “that legal proceedings be issued” will be informed by the aims of the 1961 Act (as opposed to matters which have nothing to do with the purpose and objectives of the 1961 Act). In other words, the legal proceedings (and applications) with which the Act is concerned all relate to charity matters, not other matters irrelevant to the Act’s fundamental aim of protecting charitable funds.

Section 27

112. Similarly, the powers conferred on the Board by s. 27 of the 1961 Act have, as their focus, the protection or preservation of property bequeathed for charitable purposes and the “application”

envisaged by the section, with respect to the “suit” is to a “court”. I say this, given that s. 27 provides:

"Where –

(a) A person has by will devised or bequeathed any property for charitable purposes, and

(b) A suit for the administration of the assets or carrying out the trusts of the will has been instituted by the personal representative of that person, the Board (though not parties to the suit) may, on the ground of delay, apply to the Court in which the suit is pending to have the conduct of the suit transferred to the Board, and thereupon the Court, if of opinion that there has been undue or improper delay in proceeding with the suit, may –

(a) give the conduct of the suit to the Board, or

(b) impose on the party having conduct of the suit such terms as it deems necessary for bringing the suit to a speedy termination, and may make such orders on the application as the Court thinks fit." (emphasis added)

Section 28

113. Similar comments apply in relation to the powers conferred on the Board by s. 28 which have, as their aim, the securing and protection of charitable funds. Furthermore, the application envisaged by s. 28 is, again, to a court:

"– Where any fund, standing to a separate credit in any matter within the jurisdiction of a Court, for the benefit of a charity or impressed with a charitable trust remains unapplied, the Board may apply to that Court for the transfer to them of the fund, to be held by them upon the charitable trust affecting the fund, and thereupon the Court may make such order as to the transfer of the fund to the Board or otherwise (including the payment of costs out of the fund)

as the Court thinks fit". (emphasis added)

114. At the risk of repetition, it seems to me that the powers and duties conferred on the Board pursuant to the 1961 Act reflect the fundamental objective of protecting charitable funds, regardless of whether the specific power granted by the Act is to "sue for the recovery of any charitable gift" (per s. 23); to authorise the institution of legal proceedings "with respect to any charity" (per s. 25); to "apply to the Court in which the suit is pending to have the conduct of the suit transferred to the Board" (per s. 27); or apply to court for transfer of unapplied charity funds to be held by the board "upon the charitable trust affecting the fund" (per s. 28).

115. In the foregoing manner, the Act is not at all concerned with, for example (i) the terms and conditions of those who happen to be employed by an entity with charitable status; (ii) the behaviour of an individual employed by a charity, qua employee; or (iii) the actions of an individual, qua employer, with regard to current or former staff employed by a charity. These can fairly be called employment matters, concerning workplace-relations issues, as opposed to charity matters. They are matters of no relevance to the Board, having regard to the powers and duties conferred upon it, in furtherance of the 1961 Act’s aim of protecting charitable funds.

Section 51

116. Similar comments apply in relation to the powers conferred by s.51, which entitles the Board to apply to this Court for directions "in every case of a breach or supposed breach of any trust for charitable purposes…".

Section 52

117. By the same token, the duty of executors to publish advertisements of charitable devises and bequests, laid down by s.52 of the 1961 Act, is plainly aimed at the recovery and protection of charitable funds.

Section 53

118. Against that backdrop, I now turn return to s.53, which provides:

“53. - (1) Before any legal proceedings (except legal proceedings instituted with the authority of or by the direction of the Board under section 25) in relation to any charity are commenced by any person except the attorney general, that person shall transmit to the Board notice in writing of the proposed legal proceedings and such information as may be requisite or proper or may be required from time to time by the Board, for explaining the nature and objects thereof.” (emphasis added)

119. By way of a summary at this point, what emerges from an analysis of the 1961 Act is that whether empowering the Board (i) to sue; (ii) to authorise the institution of legal proceedings; or (iii) to make an application to court, the ‘common thread’ in the 1961 Act is the underlying purpose of protecting charitable funds. Furthermore, there is nothing in the 1961 Act to suggest that any suit, legal proceedings, or application would be to a body other than a court. In addition, the Act is concerned with charity matters, not otherwise (and certainly not any of the employment matters with which the WRC is concerned, in light of the powers and duties set out in the 2015 Act).

Purpose

120. Given the foregoing, one might ask, rhetorically, what conceivable purpose would be served by imposing upon third parties the obligation to give advance notice to the Board of complaints to the WRC which have nothing whatsoever to do with, for example: (i) the operation of the charity in question, qua charity; or (ii) the recovery, protection, investment, application, or disposition of any charitable funds; or (iii) the operation of any charitable trust. In my view no purpose whatsoever would be achieved.

In relation to any charity

121. Furthermore, given the role played in the 1961 Act by suits; legal proceedings; and applications, I find it impossible to see how complaints to the WRC, by current or former employees, regarding alleged actions by individuals, qua employers, can be considered legal proceedings “in relation to any charity”, for the purpose of s. 53(1).

Information

122. In addition to the foregoing, the purpose of transmitting notice in writing to the Charities Regulator of proposed legal proceedings is explicitly so that the Charities Regulator receives “such information as may be requisite or proper or may be required from time to time by the Board, for explaining the nature and objects thereof” (emphasis added). Whether or not sexual harassment occurred in the workplace, and whether or not penalisation took place in the wake of what are said to be protected disclosures, are not issues with which the 1961 Act is at all concerned. That being so, and keeping in mind the aims of the Act, it is impossible to understand what information the Board could legitimately require in respect of such workplace complaints or claims, being employment matters, not charity matters.

123. Bearing in mind the context in which and purpose for which the 1961 Act came into being, it seems to me that s. 53 (1) reflected the intention of the Oireachtas to ensure that, before legal proceedings, determinable by a court, were instituted in relation to a charity matter, the Board (now Charities Regulator) was put on notice.

124. Whereas the 1961 Act is concerned with charity matters, in particular, the protection of charitable funds, there is no question of the notice parties’ complaints to the WRC under the 2015 Act being a claim in relation to a charity matter, or comprising an allegation that an entity with charitable status acted inappropriately, qua charity.

125. In short, careful consideration of the purpose and provisions of the 1961 act strongly suggests that WRC complaints are not legal proceedings within the meaning of s.53(1).

Employment claims

126. Before turning to look at the purpose and provisions of the 2015 Act, it is appropriate to note that, in August 2024, the first named notice party wrote, by email, to the Charities Regulator, Ms. Ciara Hennessy, in the following terms:

“Hi Ciara,

I was researching on your website area today and noticed that under S. 53 of the charities act 1961 there is an application required to notify you of legal proceedings involving a charity. I worked for a charity until recently and am in the process of lodging employment claims against them. Please can you let me know if there is a requirement on me to notify you of these claims and if so how I might do this?” (emphasis added)

127. By email dated 14 August 2024, the Charities Regulator sent the following response:

“Dear Amanda.

Thank you for emailing in your query.

While the Charities Regulator has a function to ‘encourage and facilitate the better administration and management of charitable organisations by the provision of information or advice’ this function does not extend to the provision of legal advice on general questions raised, including on matters of interpretation of the charities act. When we become aware of issues or questions of interpretation of interest or concern to charities generally we publish guidance on the matter, but also guidance is subject to a legal disclaimer that it does not constitute legal advice.

The query you have raised is one requiring particular legal advice and as such we cannot respond to this query.

I hope this clears up your query.”

128. Without suggesting that the foregoing exchange constituted notice within the meaning of s. 53(1) it is perfectly clear that the relevant complaints were described as “employment claims” and that description was entirely accurate (i.e. the complaints relate to employment by the notice parties in the applicant, and are certainly not complaints regarding any charity matter).

129. Whilst the Charities Regulator offered no view on the question of whether there was any notification obligation imposed upon the notice parties, by virtue of s.53(1), which was then in force, it is also fair to say that the Charities Regulator displayed no interest whatsoever in obtaining any further information regarding these employment claims. That is hardly surprising, having regard to the aims of the 1961 Act and the role of the Charities Regulator with respect to charity matters, as opposed to employment matters. On the topic of employment matters, I now turn to look at the 2015 Act

Workplace Relations Act 2015

130. In terms of nomenclature, the Oireachtas chose not to use the term “legal proceedings” when, by means of s.41 of the 2015 Act, it conferred the following jurisdiction upon the WRC to deal with a

“complaint” or “dispute” between an “employee” and an “employer” raised by a “complainant” (which

also includes an “agency worker”).

2015 Act, s. 41

131. S. 41 of the 2015 Act deals with the “Presentation of complaints and referral of disputes” and provides as follows:

“41.

(1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1or 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.

(2) An employee or an employer (in this Act also referred to as a “complainant”) or, where the complainant so consents, a specified person, may refer a dispute as to the entitlements of the employee under an enactment specified in Part 3 of Schedule 5 to the Director General, and, where a dispute is so referred, the Director General shall, subject to section 39, refer the dispute for adjudication by an adjudication officer.

(3) (a) An agency worker (in this Act also referred to as a “complainant”) within the meaning of the Act of 2012 or any trade union of which the agency worker is a member, with the consent of the agency worker, may present a complaint to the Director General that the hirer (within the meaning of that Act) of the agency worker has contravened section 11, 14 or 24 of that Act in relation to the agency worker, and where a complaint is so presented the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.

(b) References to employee and employer in the subsequent provisions of this Part shall, in so far as they relate to a complaint to which this subsection applies, be construed as references to agency worker within the meaning of the Act of 2012 and hirer within the meaning of that Act respectively.

(3A) An employer or a trade union representative of an employer affected by an agreement specified in paragraph 29 of Part 1 of Schedule 5 may present a complaint to the Director General that an employer affected by the agreement has contravened the agreement and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.

(4) The Director General shall refer for adjudication by an adjudication officer a complaint or dispute referred to him or her under paragraph (b) of subsection (3) of section 42 by the Labour Court.

(5) (a) An adjudication officer to whom a complaint or dispute is referred under this section shall—

(i) inquire into the complaint or dispute,

(ii) give the parties to the complaint or dispute an opportunity to— (I) be heard by the adjudication officer, and (II) present to the adjudication officer any evidence relevant to the complaint or dispute,

(iii) make a decision in relation to the complaint or dispute in accordance with the relevant redress provision, and

(iv) give the parties to the complaint or dispute a copy of that decision in writing.

(b) In this subsection “relevant redress provision” means—

(i) in relation to a complaint under this section of a contravention of a provision of an enactment specified in Part 1 or 2 of Schedule 5 the provision of that enactment specified in Part

1 of Schedule 6,

(ii) in relation to a dispute as to the entitlements of an employee under an enactment specified in Part 3 of Schedule 5, the provision of that enactment specified in Part 1 of Schedule 6, and

(iii) in relation to a complaint under subsection (3), paragraph 1 of Schedule 2 to the Act of 2012.

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

(emphasis added)

132. In the foregoing manner, s. 41 deals with the presentation of “complaints” and referral of “disputes” and makes no reference to “legal proceedings”. This explains the terminology used by the WRC in its complaint forms and documentation, to which I referred earlier (see para. 20).

133. At the risk of stating the obvious, the 2015 Act is not at all concerned with charity matters, as opposed to employment matters. Whether or not a particular employer may have charitable status is irrelevant to the WRC’s role and purpose.

Schedule 5 Part 1

134. Bearing in mind that the jurisdiction conferred on the WRC, per s. 41, is explicitly limited to Schedule 5, parts 1 and 2, it is appropriate to note what Schedule 5 provides:-

“Part 1

1. Section 4(2) or 5 of the Minimum Notice and Terms of Employment Act 1973

2. Section 9 or 10 of the Protection of Employment Act 1977 F62[3. Sections 4B(1) and (2), 4C and 5 of the Payment of Wages Act 1991] F63[4. Section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G of the Terms of Employment (Information) Act 1994]

5. Section 13 or 17 of the Protection of Young Persons (Employment) Act 1996

6. Section 17 of the Transnational Information and Consultation of Employees Act 1996

7. A relevant provision within the meaning of section 27 of the Organisation of Working Time Act 1997

8. Section 4(1) of the Protections for Persons Reporting Child Abuse Act 1998

9. Section 8A(5) of the Prevention of Corruption (Amendment) Act 2001

10. Section 9 or 15 of the Protection of Employees (Part-Time Work) Act 2001

11. Section 50(3) of the Competition Act 2002

12. Protection of Employees (Fixed-Term Work) Act 2003

13. Section 8 of the Industrial Relations (Miscellaneous Provisions) Act 2004

14. Section 55M(1) of the Health Act 2004

15. Section 27 of the Safety, Health and Welfare at Work Act 2005

16. F64[ Section 60(3) of the Employment Permits Act 2024]

17. Section 13 of the Employees (Provision of Information and Consultation) Act 2006

18. Section 87(3) of the Consumer Protection Act 2007

19. Section 26(1) of the Chemicals Act 2008

20. Section 62(1) of the Charities Act 2009

21. Section 223(3) of the National Asset Management Agency Act 2009

22. Section 38(1) of the Inland Fisheries Act 2010

23. Section 20(1) of the Criminal Justice Act 2011

24. Section 67(5) of the Property Services (Regulation) Act 2011

25. Section 6, 13(1) or 23 of the Protection of Employees (Temporary Agency Work) Act 2012

26. Section 35(1) of the Further Education and Training Act 2013

27. Section 41(1) of the Central Bank (Supervision and Enforcement) Act 2013

28. Section 12(1) of the Protected Disclosures Act 2014 F65[29. A registered employment agreement within the meaning of Chapter 2 of Part 2 of the Industrial Relations (Amendment) Act 2015

30. Section 20(1) of the Industrial Relations (Amendment) Act 2015]

Part 2

1. European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) (other than Regulation 4(4) (a))

2. Regulation 5, 6, 7, 8, 9 or 10 of the European Communities (Organisation of Working Time)

(Activities of Doctors in Training) Regulations 2004 (S.I. No. 494 of 2004)

3. European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation)

Regulations 2006 (S.I. No. 507 of 2006)

4. Regulation 19 of the European Communities (European Public Limited - Liability Company)

(Employee Involvement) Regulations 2006 (S.I. No. 623 of 2006)

5. Regulation 20(1) of the European Communities (European Cooperative Society) (Employee Involvement) Regulations 2007 (S.I. No. 259 of 2007)

6. F67[…] F68[7. Regulation 89(1) of the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023)]

8. European Communities (Working Conditions of Mobile Workers engaged in Interoperable Crossborder Services in the Railway Sector) Regulations 2009 (S.I. No. 377 of 2009)

9. Regulation 5, 8, 9, 10, 11 or 12 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 (S.I.

No. 36 of 2012)

10. An employment regulation order under section 42C (inserted by section 12 of the Industrial Relations (Amendment) Act 2012) of the Industrial Relations Act 1946 F69[11. A sectoral employment order within the meaning of Chapter 3 of Part 2 of the Industrial Relations (Amendment) Act 2015]”

135. It is self-evident that the 1961 Act came into being almost half a century before the 2015 Act. Despite this, the latter makes no reference to the former. In other words, whilst the notice parties have brought complaints alleging breaches of the Employment Equality Acts 1998 – 2015 and the Protected Disclosures Act 2002 (both of which are specified in Schedule 5), neither part 1, nor part 2 of Schedule

5 makes any reference to the 1961 Act.

136. Similarly, the complaint forms and guidelines created, prepared and followed by the WRC make no reference to the 1961 Act. In other words, the WRC has never required that, as a pre-condition for its consideration of a complaint or dispute against a body which happens to enjoy charitable status, prior notification must be given under s. 53(1) the 1961 Act.

137. Moreover, complaints heard by an Adjudicator under the powers conferred by the 2015 Act are not governed by the Rules of Court, or by legislation which applies to the courts, as regards the determination of civil claims. Rather, the powers and procedures of the WRC are determined by the 2015 Act.

138. If, as the applicant contends, the failure of a complainant to give prior notification to the Charities Regulator, under s. 53(1) of the 1961 Act, essentially ‘robs’ the WRC of jurisdiction to hear their complaints, it is surprising to say the least that the 2015 Act is entirely silent as regards the 1961 Act.

139. All of this suggests to me that, for the purposes of s. 53(1) of the 1961 Act, the notice parties’ complaints to the WRC are not legal proceedings. I am fortified, in this view, by the Supreme Court’s analysis, in Zalewski, of the 2015 Act and the purpose for which the WRC was established.

Zalewski v. Adjudications Officer

140. At para 99 of his judgment O’Donnell J. (as he then was) observed that, by means of the 2015 Act: “A jurisdiction is established to make binding determinations of legal disputes between private parties according to law”. The learned judge went on to note that: “it was accepted in these proceedings that the proceedings in the W.R.C amounted to a ‘ determination of… civil rights and obligations’ for the purposes of Article 6 ECHR”.

141. In light of the foregoing, it may be accurate, in general terms, to describe “complaints” made to the WRC as “proceedings”, even “legal proceedings”, before the WRC. I say this also mindful that s.

12 (7c) of the Protected Disclosures Act 2014 (as amended) makes reference to “proceedings by an employee under the workplace relations Act 2015”.

142. However, the foregoing does not, in my view, determine the question of the heart of this dispute. The question this Court is concerned with is not (i) whether complaints to the WRC constitute “proceedings”; or (ii) whether complaints to the WRC constitute “legal proceedings”; but (iii) whether complaints to the WRC constitute “legal proceedings” within the meaning of s.53(1) in respect of which the notice parties were obliged to give prior notice, to the Charities Regulator, of their WRC complaints.

143. Returning to Zalewski, whilst the Supreme Court was satisfied that the system of adjudication established by the 2015 Act did amount to “the administration of justice”, the fact that justice must be administered fairly and constitutionally in the WRC does not answer the question at issue in the present case. In Zalewski, the majority took the view that the administration of justice in the WRC was not invalid under Art. 34.1 (which provides that justice shall be administered in courts, established by law, by judges appointed in the manner provided by the Constitution) holding that it fell within the ‘saver’ provided for under article 37.1 of the Constitution (for the exercise of limited functions and powers of a judicial nature by persons or bodies who were not judges).

144. Commenting on the dispute-resolution process set out in the 2015 Act, O’Donnell J. (as he then was) stated (at para. 138 of his decision):

“I wish, however, to make it absolutely clear that, in doing so, I do not criticise in any way the policy underlying the 2015 Act of providing a cheap, relatively informal, and efficient decisionmaking function, staffed by persons with expertise in the areas of employment law and with practical experience in industrial relations. The concept of speedy dispute resolution close to the workplace and in a manner not hidebound by either formality or procedure has much to recommend it, and I would reject unhesitatingly the contention that such a body must be staffed by people with formal legal training and sufficient legal experience to be appointed judges.” (emphasis added)

145. The foregoing description of the WRC’s purpose and decision-making function (i.e. relatively informal; speedy; not ‘hidebound’ by formality or procedure; staffed by experts; not presided over by a judge) seems to me to support the view that the notice parties’ complaints do not constitute “legal proceedings” for the purposes of s.53(1) of the 1961 Act (also recalling that the legal suits and applications referred to in the 1961 Act all seem to be court proceedings).

146. Furthermore, whilst Mr. Justice MacMenamin was in the minority on the question of whether there was a breach of Art. 34.1, there was no dispute in relation to his description of the WRC (at para.

313 of his decision) wherein the learned judge stated:

“The defence in this case referred to the intent behind the 2015 Act. That intent was, in many respects, a laudable one. The aspiration was to create a system whereby disputes of this nature could be informally resolved without recourse to excessive reliance on legal procedures.”

(emphasis added)

147. The legislature’s intention for the WRC to carry out its decision-making functions without “excessive reliance on legal procedures” also fortifies me in the view that the notice parties’ complaints to the WRC are not legal proceedings for the purposes of s.53(1) of the 1961 Act. This is also underlined by the “non-legalistic” objectives of the 2015 Act, to which Mr. Justice MacMenamin referred (at para

381 of his judgment) in the following terms:

“Counsel for the respondents submitted that the court should look at the scheme of the 2015 Act, and the objectives, including simplification and integration of mechanisms, and the pathways to redress. These included a system that was “non-legalistic” that encouraged compromise and agreement. The aim is to have access to an adjudication body, which was informal, with the appropriate assistance on the presentation of the facts. Thus it was that the legislation included dispute resolution procedures and facilities. The primary objective is to seek resolution of disputes close to the workplace level. This is to be done in a non-legal informal basis, to encourage compromise and agreement. These are, she submitted, legitimate objectives for the legislature to pursue. I entirely accept that, in themselves, these are legitimate policy objectives.” (emphasis added)

Certain observations

148. The WRC’s views on the question at issue in this case have played no part in my decisionmaking. However, and for the sake of completeness, in the 19 February 2025 letter sent to the solicitors for the applicant (exhibit “AT3” to the affidavit of Mr. Adrian Toomey sworn on 12 March 2025) the WRC Registrar stated inter alia:

“… WRC proceedings do not appear to be covered by the definition of 'legal proceedings' under the 1961 Act”.

149. Whilst the following did not play any part in my decision-making (in circumstances where the text was not opened to me during the hearing) I note that, under the heading “Legal proceedings”, s.

53 (1) of the 1961 Act was quoted verbatim at para. 4.6.4 of “Charity Law” (Dr. Kerry O’Halloran BL, Dublin, Round Hall, Sweet & Maxwell 2000, p. 68/69) following which the learned author stated:

“Advance notice must be served and the court must stay proceedings until this is done. The Board also has a general power to authorise or direct the institution of legal proceedings in relation to any charitable matter (section 25)…” (emphasis added)

150. In the foregoing manner, the view to which I have come to would appear to reflect that of the learned author of Charity Law, namely, the view that s.53(1) was concerned with legal proceedings determinable by a “court”.

151. By way of further obiter comments, the learned author expresses the view that, where advance notice pursuant to section 53(1) was not given to the Charities Regulator, “the court must stay proceedings until this is done” (emphasis added). The reference to a “stay” seems to me to be apt, for the following reasons.

152. In my view, even if s. 53(1) applied to WRC complaints (and it does not); and even if the applicant had raised the s.53(1) issue in a timely manner (which it did not) the result would be a stay, pending notification (as opposed to the WRC complaints being void and a nullity). I take this view bearing in mind that the extent of the s.53(1) obligation, had it applied, was to notify, i.e. no consent from the Charities Regulator was ever required.

153. Even if s.53(1) had applied (and it never did) I cannot agree with the applicant’s submissions that the effect, upon the Notice Parties, would be to require them to issue, anew, the self-same complaints to the WRC post notification to the Charities Regulator. Rather, had s. 53(1) applied, it seem to me that the effect would have been to stay the hearing, by the WRC, of the complaints until notification had been given. I am fortified in these views by the analysis in Rendall v. Blair (1890) 450 Ch.D.139, an authority to which counsel for the notice parties directed my attention.

154. Rendall v. Blair involved an action brought by a teacher, who sought an injunction to prevent his dismissal from the school which was run by a charity (and the consequent loss of accommodation), who had not given notice to or obtained leave from the Charity Commissioners as required by s. 17 of the Charitable Trust Act. 1853. That section required prior notice in writing to be given to the relevant Board “Before any suit, petition or other proceeding…for obtaining any relief, order, or direction concerning or relating to any charity, for the estate, funds, property or income thereof, shall be commenced presented or taken by any person… ”. Section 17 went on to provide that consent was required in the form of “an order or certificate of the said Board” before any “suit, petition, or other proceeding…shall be entertained or proceeded with”.

155. The case was struck out as a nullity at first instance but was reinstated by the Court of Appeal which held that any necessary leave could be obtained after the point had been raised. Central to the Court of Appeal’s decision was that the language used in the relevant statute did not clearly show the suit or proceeding to be a nullity, as opposed to being one which the court could consider after the condition was fulfilled.

156. Similarly, there is nothing in s.53 (1), or in the 1961 Act as a whole, which makes clear that legal proceedings which are commenced without prior notification to the Charities Regulator are a nullity, or void, as opposed to being capable of being heard after notice has been given. Indeed, the principle underpinning the decision in Rendall v Blair seems to me to apply with even greater force in the present circumstances, given that, even if s.53(1) applied to WRC complaints, there was never any obligation under the 1961 Act to obtain consent from the Charities Regulator, as opposed to giving notice to the latter.

157. To draw this judgment to a conclusion, even if the notice parties’ complaints can fairly be described as "legal proceedings" against the applicant, they are proceedings in which the notice parties have called upon the WRC to determine private legal disputes against an entity qua employer/former employer, in respect of which the charitable status of the applicant, and the actions of the applicant qua charity, are irrelevant, which proceedings have nothing whatsoever to do with the objects of the 1961 Act (be that the identification, recovery, transfer, administration, and/or protection of charitable funds, or any other charity matter) and are complaints concerned exclusively with employment matters.

158. For the reasons set out in this judgment, I take the view that the notice parties’ complaints to the WRC are not "legal proceedings” within the meaning and for the purpose of s.53 (1) of the 1961 Act and I reject the applicant's contention that the WRC's adjudication officer erred in law by means of the 14 November 2024 decision. Given the foregoing finding, I want to emphasise, once more, that nothing in this judgment is intended to be a criticism of the applicant’s legal representatives. Doubtless they have acted at all times in a bona fide and professional manner, focussed on advising and assisting the applicant in accordance with the highest standard. I say this because, although the objection to the WRC’s jurisdiction was not made until July 2024, given my findings on the substance of the objection, it would not have been any more successful had been raised by the applicant’s legal representatives the very outset.

159. Lest I be entirely wrong in the foregoing view that the applicant has not established any entitlement to judicial review, I also want to make the following clear.

Discretionary remedy

160. It is fair to say that, where an applicant for judicial review establishes unlawfulness in respect of the decision challenged, the decision in question will typically be quashed. However, an applicant is not entitled to an order of certiorari as of right. It is settled law that the granting of judicial review is discretionary [See, for example, the State (Abenglen Properties Ltd) v. Dublin Corporation [1984] IR

381 (where the Supreme Court took the view that the applicant’s conduct had disentitled him to the relief of certiorari); and De Róiste v. Minister for Defence [2001] 1 IR 190 (where the conduct of an applicant was identified as a factor that might influence the grant or withholding of relief where an illegality has been established)].

161. In the present case, the applicant chose not to ask, until July 2024, whether the notice parties had given prior notification to the Charities Regulator and decided to raise the s. 53 (1) jurisdictional objection so late in the process, in which it had chosen to be an active participant that, were this Court to quash the 13 November 2024 decision, the consequences would include:

(i) the applicant would derive a material benefit from its own delay, by means of the notice parties’ complaints being prima facie statute barred; and

(ii) there would be no opportunity to have a determination of the complaints under the Employment Equality Acts and the Protected Disclosure Act, by the WRC, in the manner envisaged by the 2015 Act.

162. In light of the foregoing, and in circumstances where judicial review is a discretionary remedy, it seems to me that, even if the applicant had made out a prima facie entitlement to relief, the applicant's conduct, including, its failure to raise its jurisdictional objection for such a lengthy period, which involved no less than two prior hearings and a year or more’s active engagement with the WRC process (more than 2 years’ according to the WRC’s decision) and the consequences of that conduct, would justify a refusal of relief on the facts of this case.

In conclusion

163. Notwithstanding the sophistication and skill with which counsel for the applicant made submissions, the outcome of this case falls to be determined on the application of relevant legal principles to the very particular facts.

164. For the reasons set out in this judgment, even if I am entirely wrong in the view that these proceedings are moot, and even if I am wrong in the view that the applicant is estopped, by reason of its conduct, in seeking judicial review, I am satisfied that the applicant has not made out an entitlement to an order of certiorari in respect of the decision. Even if I am wrong in that view, I am satisfied that the applicant’s conduct, and the consequences of same, deprives the applicant of the discretionary remedy of judicial review. For these reasons, the applicant’s claim must be dismissed.

165. The notice parties’ statement of opposition (para. 4) puts matters as follows: “…the position of the Applicant herein (as Respondent to the WRC claims made by the notice parties) is an attempt by the Applicant to deny the notice parties access to and determination of their valid and lawful claims.” It is difficult to disagree. The notice parties’ complaints may, or may not, have merit. That is not for this court to decide. In my view, justice requires no more and no less than the determination by the WRC of the notice parties’ complaints, in accordance with the provisions of the 2015 Act.

166. Given that the notice parties have been entirely successfully in their opposition to the claim, they have a presumptive entitlement to an order for costs (see s. 169 of the Legal Services Regulation Act, 2015 and O. 99 of the Superior Court Rules).

167. I propose to list this matter before me at 10:30 am on Thursday 29 January 2026 for the purpose of making final orders. In the event of agreement between the parties, in advance of that date, an agreed draft order should be submitted to the Registrar. The parties have liberty, but are not required, to furnish short written submissions on the question of costs no later than 5pm on Monday 26 January, in the event of a dispute on that issue.