Supreme Court dismisses appeal against refusal of judicial review leave regarding s. 123(4) of Residential Tenancies Act 2004. The court upholds the High Court's decision that the provision is not unconstitutional.

THE SUPREME COURT

[Appeal No: 183/2008]

Denham J.

Hardiman J.

Fennelly J.

Macken J.

Finnegan J.

BETWEEN/

JACK CANTY

APPLICANT/APPELLANT

AND

THE ATTORNEY GENERAL AND

THE PRIVATE RESIDENTIAL TENANCIES BOARD

RESPONDENTS

AND

DAVID CONNOLLY

NOTICE PARTY

Judgment of the Court delivered on the 19th day of July, 2011 by Denham J.

1. This is one of a series of appeals brought to this Court by Jack Canty, the applicant/appellant, who is referred to as "the

appellant". The appeal was heard on the 27th June, 2011. The appellant moved these legal proceedings as a lay litigant.

2. This is an appeal by the appellant from an order of the High Court (McKechnie J.) given on the 17th December, 2007, refusing a

declaration in judicial review proceedings that the provisions of s. 123(4) of the Residential Tenancies Act, 2004, are unconstitutional.

History

3. There is a history to this application; a number of disputes have arisen between the appellant and his landlord. These were referred

to the Tenancy Tribunal set up under the Residential Tenancies Act, 2004, referred to as "the Act of 2004". The Tenancy Tribunal

made a number of determination orders. The appellant appealed the determination orders to the High Court pursuant to s. 123(3) of

the Act of 2004. One of the appeals was heard by Laffoy J., who gave judgment on the 8th August, 2007. The appellant sought to

appeal the judgment of Laffoy J.. However, the Private Residential Tenancies Board, hereinafter referred to as "the Board", brought a

motion seeking to strike out that appeal on the grounds that no appeal lies from a decision of the High Court, having regard to the

provisions of s. 123(4) of the Act of 2004. The motion was determined by this Court (Kearns, Macken and Finnegan JJ.) which held

that it had no jurisdiction to hear the appeal because of s. 123(4) of the Act of 2004, but that it did have jurisdiction to entertain an

appeal from the order of the High Court. relating to the costs of the appeal heard before her. This appeal on costs currently stands

adjourned.

4. Subsequently the appellant brought an application for leave to seek judicial review for a declaration that the provisions of s. 123(4)

of the Act of 2004 are repugnant to the Constitution of Ireland.

Section 123 of the Act of 2004

5. Section 123 of the Act of 2004 states:-

"(1) A determination order embodying the terms of an agreement mentioned in a mediator’s report under section

95(4) or the determination of an adjudicator under section 97 shall become binding on the parties concerned on the

order being issued to them.

(2) A determination order embodying the terms of a determination of the Tribunal shall, on the expiry of the relevant

period, become binding on the parties concerned unless, before that expiry, an appeal in relation to the

determination is made under subsection (3).

(3) Any of the parties concerned may appeal to the High Court, within the relevant period, from a determination of

the Tribunal (as embodied in a determination order) on a point of law.

(4) The determination of the High Court on such an appeal in relation to the point of law concerned shall be final

and conclusive.

…"

[Emphasis added]

The appellant's appeal relates specifically to the words "final and conclusive".

Proceedings

6. Actions regarding the constitutionality of a section in an Act are usually brought by way of plenary proceedings, and not by way of

judicial review. However, the High Court was urged not to decide the case on this issue but to proceed and determine the substantive

constitutional issue as speedily as possible. As a consequence, the High Court determined the issue and delivered an ex tempore

judgment on the 17th December, 2007.

7. The High Court had ordered previously that the leave application should be moved on notice to the respondents and the notice

party.

The High Court Judgment

8. The High Court held that:-

"… the legislature, by virtue of the 2004 Act, established a framework by which disputes between landlords and

tenants could be resolved, with the intention of that being done informally, expeditiously, and as cheaply as

possible. Bodies with particular expertise were set up within this framework to discharge the functions assigned to

them. … In such circumstances it is not in the least surprising to find a statutory provision regulating or restricting a

person's right of appeal from such a body. In the instant case provision is made for a right to appeal from a

determination of the Tribunal to the High Court, but only "on a point of law". By that stage of the process all

questions of disputed fact and all issues of merit will have been dealt with by that expert body and their findings on

such matters are determinative. No appeal from such conclusions is permitted. The only further recourse which a

party has is to seek the opinion of the High Court on a point of law. That being the position, it is entirely predictable

that any right of appeal is limited, as it is that the Oireachtas might, at that stage, seek to end the litigious role of

all parties. Whether that has been achieved in this particular case depends, however, on the meaning of "final and

conclusive" in s. 123(4) of the Act."

The learned High Court judge held:-

"The words "final and conclusive", as appearing in s. 123(4) of the 2004 Act, have in my view only one meaning.

Such a phrase is not ambiguous and is not capable of having any meaning other than that which the words plainly

and unambiguously mean and were intended to mean. On my interpretation of the phrase, the situation is that once

the High Court has expressed an opinion on the statutory appeal, then that decision ends the litigation between the

parties. This is what I think final, and this is what I think conclusive means: "final", as being in the last stage of the

process, and "conclusive" as meaning decisive by way of end. I do not believe that the phrase can have any other

meaning, and certainly not the meaning argued for by Mr. Canty.

It seems to me that the Oireachtas is entitled under Article 34.4.3º of the Constitution to adopt a policy with

regard to finality in landlord and tenant matters as between contracting parties. I am of the view that this was the

intention behind the establishment of the 2004 Act, and certainly the inclusion of subs. (4) in s. 123. I do not read

that restriction as exceeding what is authorised by Article 34.4.3º of the Constitution. There is in my view no

ambiguity in the language of the subsection: the only meaning of it is that which I have endeavoured to describe.

Consequently I cannot accept Mr. Canty's submission that he has made out an arguable case for the interpretation

as suggested by him and secondly, given the statutory framework against which the restriction must be judged, it

cannot in my opinion be said to be incompatible with the provisions of Article 34.4.3º of the Constitution."

The High Court held that the appellant had not discharged the threshold imposed upon him and therefore leave was not granted and

the application was refused.

Notice of Appeal

9. The appellant filed a notice of appeal from the High Court to this Court setting out his grounds of appeal. In his written

submissions, the appellant submitted that this appeal presents the issue, and its implicit subsidiary issues, of whether s. 123(4) of the

Act of 2004 should be interpreted, in his words:-

"(i) As a valid bar to appeal to [the Supreme Court]; or

(ii) As too vague and/or ambiguous to operate as to strip appellate jurisdiction from the [the Supreme Court], as

lacking the usual further verbiage enacted by the Oireachtas, "and no appeal shall lie", or

(iii) As intended by the Oireachtas to be of "Separation of Powers", and not jurisdiction-stripping, import, as lacking

the aforesaid further verbiage; or

(i) As per se violative of the Constitution for failure to include a proviso excepting "Constitutional validity" issues

from its, arguendo, complete appellate jurisdiction-stripping bar".

The appellant submitted that the question was whether the "exceptions … regulations" proviso of Article 34.4.3º of the Constitution is

authority for the discretion of the Oireachtas to be exercised at its whim to strip the Supreme Court of its constitutionally vested

appellate jurisdiction from High Court determinations, save only constitutional validity issues. It was submitted that Article 34.4.3º is

not such an authority, but that it is a convoluted way to confer appellate jurisdiction as the Oireachtas may deem on the Supreme

Court from the inferior, statutory, courts.

Constitution and Law

10. Article 34.4.3º of the Constitution provides that:-

"3° The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law,

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

decisions of other courts as may be prescribed by law."

Thus the issue to be considered is the phrase "with such exceptions and subject to such regulations as may be prescribed by law", in

the context of the circumstances of this case.

11. This article of the Constitution was analysed in The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360. The Court stated,

at pp.399 to 400:-

"As regards the constitutional right of access to the courts, it is sufficient to say in this context that such a right

means the right to have all justiciable questions involving the administration of justice heard and determined by a

court established by or in accordance with the Constitution. Questions as to the constitutional validity of any law

apart, it does not require that in every case a party has the right to bring the issues on appeal to the Supreme

Court. Furthermore, in providing that the appellate jurisdiction of the Supreme Court may be restricted or regulated

by law, Article 34.4.3º does not impose any preconditions or qualifications on the right of legislature so to do,

(apart from the saver referred to above). The Article in question, however, falls to be interpreted in the light of the

objects and provisions of the Constitution as a whole and any such limitation would have to be consistent with

them.

In giving express power to the legislature to restrict the right of appeal from the High Court to the Supreme Court,

Article 34.4.3º grants a wide power of discretion according to which such a restriction may be imposed for a range

of policy reasons. This may include a desire on the part of the legislature that certain issues or matters which fall to

be determined by the courts should be determined with finality at the stage of first instance. This might be

particularly likely to arise in cases where administrative decisions have been heard and determined on their merits,

not by a court but by duly authorised administrative bodies. In short, the constitutional provision allows the

legislature in the exercise of its discretion to restrict appeals from the High Court to the Supreme Court and unless

some constitutional defect is established as to the manner in which the legislature uses that power, it is not a

matter for the courts to review the policy grounds upon which the legislature so decided.

…

Leaving aside the question of a discriminatory use of that power, which is dealt with below, it has not been

established that there has been any constitutional frailty in the manner in which the Oireachtas has exercised its

power to limit and regulate the appellate jurisdiction of this court."

On the issue of discrimination the Court held at p. 403:-

"Accordingly, even though by their very nature each one of the conditions and limitations which s. 5 of the Bill

seeks to introduce apply only to non-nationals, the court is satisfied that they are justified by an objective

legitimate purpose independent of the personal status or classification of the persons affected by them. For the

reasons already stated, those conditions and limitations are consistent with a constitutional right of access to the

courts and the principles of constitutional justice. They cannot be said to treat the persons concerned unfairly."

12. The term "final" indicates an ending and the word "conclusive" indicates that a matter is terminated. However, the words should

be read in the context of the legislation in issue.

Statutory Scheme

13. The Act of 2004 established the Board whose principal function is the resolution of disputes between landlords and tenants of

dwellings to which this Act applies. It was intended that the Board's dispute resolution function would replace the role of the courts in

relation to such matters in tenancies. The process before the Board has two stages: stage one is either mediation or adjudication and

is confidential; stage two is a public hearing by a Tenancy Tribunal. The Tribunal consists of three people drawn from the Board's

Dispute Resolution Committee. A mediated agreement or the determination of an adjudicator or of the Tribunal will result in a

determination order of the Board. The determination of the Tribunal may be appealed to the High Court within 21 days, but only on a

point of law. The Circuit Court enforces the determination orders of the Board pursuant to s.124 of the Act of 2004.

Other Statutory Schemes

14. Other statutory schemes exist and may differ from that in the Act of 2004. These other schemes may make provision for an

appeal to the Supreme Court on a Certificate. For example, section 82 of the Local Government (Planning and Development) Act,

1963, as amended by s. 19 of the Local Government (Planning and Development) Act, 1992, provides:-

"(3B)(b)(i) The determination of the High Court of an application for leave to apply for judicial review as aforesaid or

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

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

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

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

(ii) This paragraph shall not apply to a determination of the High Court in so far as it involves a question as to the

validity of any law having regard to the provisions of the Constitution."

[Emphasis added]

This is a scheme similar to that analysed in The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360.

15. The words of s. 82 of the Act of 1963, as amended, cited above, say that the determination of the High Court shall be "final". It

does not include the word "conclusive". However, it then goes on to say "that no appeal shall lie from the decision of the High Court

to the Supreme Court" without the leave of the High Court. This is thus a different type of statutory scheme and requires to be

construed and applied accordingly.

16. The words of s. 82, cited above, also illustrate the differences which arise in different schemes. Section 82 provides that the

section does not apply to a determination of the High Court in so far as it involves a question as to the validity of any law having

regard to the provisions of the Constitution. This arises because of the provision in Article 34.4.4º which states:-

"No law shall be enacted excepting from the appellate jurisdiction of the Supreme Court cases which involve

questions as to the validity of any law having regard to the provisions of this Constitution."

However, such an issue arises only if the decision-maker could have before it the issue of the validity of a statute. Clearly this could

be an issue in a High Court hearing. However, it would not arise in a decision-making body which could not determine the issue of the

validity of a statute, such as the Tribunal under the Act of 2004.

17. The appellant raised four issues primarily.

(i) The appellant queried whether s. 123(4) of the Act of 2004 is a valid bar to an appeal to the Supreme Court. However,

Article 34.4.4º clearly provides that exceptions and regulations may be established by law excluding an appellate

jurisdiction from the High Court to the Supreme Court. The words of s. 123(4) of the Act of 2004 are clear and

unambiguous and arise in the context of a statutory scheme making provision for decision-making in relation to disputes

between landlords and tenants being decided by the Board. This statutory scheme, described above, takes from the

courts the decision-making on the facts in relevant landlord and tenant issues. While there is provision for an appeal to

the High Court, it is limited to a point of law. In the circumstances the Court is satisfied that s. 123(4) of the Act of 2004

lies within the exceptions provided and permitted by Article 34.4.4º. Thus this ground of appeal falls.

(ii) The appellant submitted that s. 123(4) was lacking the usual further verbiage such as "and no appeal shall lie" and

that consequently it did not clearly bar an appeal to the Supreme Court. However, the terms "final and conclusive" are

clear in themselves. The additional words, such as "and no appeal shall lie" usually appear in an Act where there is no

appeal unless the High Court grants a certificate. It is thus a different type of statutory scheme, as, for example, may be

seen in s. 82 of the Act of 1963, as amended, which has been set out earlier in this judgment. Cases in relation to such

sections, and the sections of statutory law themselves, are not on all fours with the section in issue as they relate to

different types of statutory schemes. Thus the absence of words such as "and no appeal shall lie" is not determinative of

the issue. In this case the absence of such words is of no significance. The Court dismisses this submission of the

appellant.

(iii) The appellant submitted that s. 123(4) of the Act of 2004 was intended by the Oireachtas to concern "separation of

powers" and did not have "jurisdiction-stripping" import, because it lacked the further verbiage.

On the face of the section, it is clearly a matter going to the jurisdiction of the Supreme Court. It is a provision of a

statute of the Oireachtas that the decisions of the High Court shall be final and conclusive and thus that there is no

jurisdiction in the Supreme Court.

The appellant raised issues as to the transition of the State from 1922 to the Constitution of 1937, and discussed the

differences of parliamentary supremacy in the United Kingdom and the judicial review power of the Constitution of Ireland

1937, and, the fact that it is stated in 34.4.1º that the "Court of Final Appeal shall be called the Supreme Court". There

were also issues raised on the status of the Privy Council during the development of the independence of Ireland. But

none of this impinges on the clear meaning of Article 34.4.3º insofar as it makes provision for exceptions to the appellate

jurisdiction of this Court.

The appellant made a legal submission, grounded in the transitions brought about by the Constitution of 1922, the

subsequent legislation, the Constitution of 1937 that the words in Article 34.4.3º referred to the other courts, and was to

make provision for their appeals. He submitted:

"… the sole and exclusive reason for the "Exceptions… Regulations" proviso: to "limit" i.e., to confer

conditional ("Regulations") statutory appellate jurisdiction, if any ("Exceptions") from the (non-

Constitutional) statutory courts upon the (Constitutional) High Court and/or The Supreme Court, in

addition to their respective Constitutional jurisdiction, as the Oireachtas, in its wisdom, may deign."

This argument is somewhat convoluted. However, the words of Article 34.4.3º are clear and plain. They refer initially to

the appellate jurisdiction of the Supreme Court and then provision is made for some exceptions and regulations to that

jurisdiction. The Article continues to describe that the Supreme Court "… shall also have appellate jurisdiction from such

decisions of other courts as may be prescribed by law." Thus these words do not limit or curtail the initial phrases of the

Article, rather they provide for an additional route of appeal. Consequently this argument on the appeal is also dismissed.

(iv) The appellant's final principal submission was that s. 123(4) violated the Constitutiuon for failing to provide a proviso

excepting "constitutional validity" issues. Such a proviso is clearly relevant and important in a statutory scheme where the

hearing is in the High Court and where issues of constitutional validity can be raised. Article 34.4.4º has been set out

earlier in this judgment.

However, no question as to the validity of any law can be raised in a Tribunal under the Act of 2004. Therefore no such issue could

arise on appeal on a point of law to the High Court and Article 34.4.3º could not arise for consideration. Thus this ground must also

fail.

18. The equality provisions of the Constitution were also referred to. The Court is satisfied that s. 123(4) does not offend Article 40.1

of the Constitution. The learned High Court judge held:-

"The applicant also argues that the subsection is unconstitutional by reference to the equality provision of the

Constitution, namely Article 40.1 thereof. He makes this claim by contrasting what he says is the position of those

who invoke the provisions of the Freedom of Information Act 1997, the Local Government Planning Act 2000, and

the Illegal Immigrants (Trafficking) Act 2000; all of whom in his submission have a right of appeal to the Supreme

Court. He says that this right, when judged against the restriction in s. 123(4) of the Act, amounts to inequality

and constitutes invidious discrimination. Without finding it necessary to pass any comment on the analogy made,

save to say that such general assertions are not correct, I am satisfied beyond question that given the structure of

the 2004 Act the Oireachtas could not be said to have violated Article 40.1 of the Constitution in the manner

suggested. Moreover each individual, irrespective of position, who invokes the 2004 Act, will likewise face exactly

the same provision as Mr. Canty does. I therefore do not think that the provision in question is discriminatory in the

manner alleged by Mr. Canty or at all."

The Court would affirm this finding by the High Court.

19. Statutory schemes which provide specialist tribunals to determine matters in specific areas are an important part of a modern

state. Fair procedures within the scheme leading to a decision on fact by a tribunal with an appeal on a question of law to the High

Court, gives a litigant a right to a hearing and to an appeal. This is a universally recognised type of scheme of decision-making within

a specialist area.

In the context of the scheme established under the Act of 2004, the words in s. 123(4) are clear and unambiguous and should be so

construed.

Conclusion

20. The Court has considered carefully the pleadings, documents, and the oral and written submissions in this case. The Court is

satisfied that in all the circumstances the learned High Court judge acted within his discretion in refusing leave to apply for judicial

review in this case. Consequently, the appeal is dismissed for the reasons given.