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URL: http://www.bailii.org/ie/cases/IESC/2002/5.html
Cite as: [2002] IESC 5, [2002] 2 ILRM 161, [2002] 1 IR 296

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Judgment Title: B. -v- Minister for Justice, Equality & Law Reform

Neutral Citation: [2002] IESC 5

Supreme Court Record Number: 107 & 115/01

High Court Record Number: 2001 10IA

Date of Delivery: 30/01/2002

Court: Supreme Court


Composition of Court: Keane C.J., Denham J., McGuinness J., Geoghegan J., Fennelly J.

Judgment by: McGuinness J.

Status of Judgment: Approved

Judgments by
Result
Concurring
Denham J.


Outcome: Allow And Set Aside





THE SUPREME COURT

No. 107/01 and 115/01

Keane, C.J.
Denham, J.
McGuinness, J.
Geoghegan, J.
Fennelly, J.

IN THE MATTER OF AN INTENDED JUDICIAL REVIEW

BETWEEN
B.

APPLICANT

AND

THE GOVERNOR OF THE TRAINING UNIT GLENGARIFF PARADE DUBLIN

RESPONDENT
AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

NOTICE PARTY/RESPONDENT


No. 164/01

BETWEEN
S.

APPLICANT/APPELLANT

AND

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

RESPONDENTS



JUDGMENT delivered the 30th day of January, 2002 by FENNELLY J.


I agree with the judgment of Geoghegan J. These additional remarks concern the nature of the right of appeal with which this case is concerned.
Section 5(1) of the Illegal Immigrants (Trafficking) Act, 2000 restricts to fourteen days the period within which a person wishing to challenge one of the measures there listed must apply for judicial review. This is, without question, a severe restriction on the constitutional right of access to the courts of affected persons. I do not understand the judgment of the Court on the reference to it by the President pursuant to Article 26 of the Constitution (In the matter of the Illegal Immigrants (Trafficking) Bill, 2000 ) to have questioned this proposition as it was advanced to it in the arguments of counsel assigned by the Court (see page 389 of the judgment). Counsel had placed particular reliance on the judgment of Costello J in Brady v Donegal County Council [1989] I.L.R.M. 282. In that case the plaintiff had challenged the constitutionality of the two month time limit imposed by section 82 (3A) of the Local Government (Planning and Development) Act, 1963 as amended by section 42 of the Local Government (Planning and Development) Act on the bringing of proceedings to question the validity of planning decisions. Costello J said:

“A law which imposes a very short time limit which may well deprive a plaintiff of a judicial remedy before he knew he had a cause of action can obviously cause considerable hardship. But if the plaintiff's ignorance of his rights during the short limitation period is caused by the defendant's own wrong-doing and the law still imposes an absolute bar unaccompanied by any judicial discretion to raise it there must be very compelling reasons indeed to justify such a rigorous limitation on the exercise of a constitutionally protected right. The public interest in (a) the establishment at an early date of certainty in the development decisions of planning authorities and (b) the avoidance of unnecessary costs and wasteful appeals procedures is obviously a real one and could well justify the imposition of stringent time limits for the institution of court proceedings. But if the statute now being considered contained the suggested saver these objectives could be achieved in the vast majority of cases. Certainly the public interest would not be quite as well served by a law with the suggested saver as by the present law, but the loss of the public interest by the proposed modification would be slight while the gain in the protection of the plaintiff's constitutionally protected rights would be very considerable. I conclude therefore that the present serious restriction on the exercise of the plaintiff's constitutional rights imposed by the two-month limitation period cannot reasonably be justified. Unmodified, the subsection is unreasonable; being unreasonable it is unconstitutional, and I will so declare."

Referring to the restriction as so described, the Court in the Article 26 reference accepted that where “a limitation period is so restrictive as to render access to the courts impossible or excessively difficult it may be considered unreasonable in the sense Costello J. found the rigid rule in Brady v Donegal County Council... to be unreasonable, and therefore unconstitutional.” (page 393).
The Court had pointed out, however, that, as Costello J had also emphasised, the legislation impugned, in that case, contained “ no provision permitting the courts to extend the time for the bringing of judicial review proceedings by affected persons who, through no fault of their own, were unaware of relevant facts until after the expiration of the limitation period.” The presence in the section of the act under review of such a power to extend time was, it appears to me, crucial to the Court’s conclusion that the limitation was, in spite of Brady, constitutional. The Court continued (page 393):

"In applying that test in this case, the court acknowledges that there are likely to be cases, perhaps even a very large number of cases, in which for a range of reasons or a combination of reasons, persons, through no fault of their own, (as in Brady v. Donegal County Council), are unable to apply for leave to seek judicial review within the appeal limitation period, namely fourteen days. This is a situation with which the courts deal on a routine basis for other limitation periods. The fourteen day time limit envisaged by the Bill is not the shortest with which the courts have had to deal.

Moreover, the discretion of the court to extend the time to apply for leave where the applicant shows "good and sufficient reason" for so doing is wide and ample enough to avoid injustice where an applicant has been unable through no fault of his or hers, or for other good and sufficient reason, to bring the application within the fourteen day period. For example counsel assigned to the court have argued that the complexity of the issues, or the deficiencies and inefficiencies in the legal aid service, may prevent the applicant from being in a position to proceed with his application for leave within the period of fourteen days.

However, where this has occurred through no fault of the applicant, it may be advanced as a ground for extending the time for applying for leave for judicial review.

The court is satisfied that the discretion of the High Court to extend the fourteen day period is sufficiently wide to enable persons who, having regard to all the circumstances of the case including language difficulties, communication difficulties, difficulties with regard to legal advice or otherwise, have shown reasonable diligence, to have sufficient access to the courts for the purpose of seeking judicial review in accordance with their constitutional rights.”
    The power of the court to extend the time for the bringing of a judicial review application is, as is clear from the above passage, of potentially decisive importance for the protection of the constitutional right of access to the courts of persons affected by decisions vital to their interests.
    The Court did not, however, consider the question which is now before the Court. That question - whether the right of appeal to the Supreme Court is restricted by being made subject to the need for the leave of the High Court - is, however, closely linked to the Court’s conclusion that the fourteen-day limitation is not so unfair and unreasonable as to be unconstitutional because it is rescued by inclusion in the legislation of what Costello J., in the passage quoted above, described as a “saver.” That is so because the power to extend the time is the key by which an affected person may gain access to the court in the form of a right to make an application for judicial review.
    I do not think it is straining language to say that the refusal of an extension of time is not a “determination [by] the High Court of an application to apply for judicial review...” for the purposes section 5(3)(a) of the act. There is, I would agree, considerable force in the view of the Chief Justice that a decision to refuse an extension of time has the effect of determining the application, where, as here, the application is made out of time and cannot succeed unless the High Court agrees to enlarge the time. However, several considerations of principle demonstrate that the application for an extension of time is distinct from the substantive application for leave to apply for judicial review. The need to apply for an extension of time does not, as a matter of principle arise in every case. It arises only where the applicant has been or perceives himself as being unlikely to be in a position to make the leave application in good time. In practice, of course, it is the former situation which almost invariably occurs. It is rare indeed that an application for an extension is made within the permitted period. Where that period is a mere fourteen days, it will be extraordinarily unlikely. It is interesting to note, however, that the standard rule of the European Court of Justice is that an application for an extension of the time within which to make an application or to file a pleading will not be entertained outside the time.
    The fact that the extension of time application is, in principle, distinct is illustrated by the fact that the Court accepted in the Article 26 reference, as the Chief Justice noted, that a separate application could be made for an extension within the fourteen day period. This point is further underscored in the judgment of Geoghegan J., where he points to the distinct character of the matters which will need to be considered on such an application an extension of time. This view gains further support from the remark of Hardiman J. that this "is a special statutory jurisdiction which is in [his] view sui generis". (GK, MM and ZM v PK, Supreme Court, 17th December 2001). There is a further decisive consideration. As Geoghegan J. also points out, where the respondent objects to an order which is made granting an extension, there is nothing to prevent that party from appealing such an order. Section 5(3)(a) does not apply. The reason is that the order granting the extension of time does not determine whether leave will be granted. Some troublesome anomalies flow from treating the refusal of an extension of time as a determination of an application for leave. Firstly, it is clear, that an order granting an extension is not to be treated as amounting to the determination of an application. It seems equally clear that an order refusing an extension will be treated as not determining the application for leave, if the extension application is made within the fourteen days. On the other hand, an order refusing leave after the expiry of the time will be treated as determining the application for leave. In my view, that interpretation of the section is both inconsistent and discriminatory. It is not an acceptable approach to the interpretation of a provision claimed to limit the right of an affected person to access to the courts.
    It is not necessary for me to repeat the references made by Geoghegan J. to the decided cases on the interpretation of Article 34 section 4 subsection 3 of the Constitution. These cases show that this Court has been correctly vigilant in its interpretation of this important constitutional guarantee of access to the court, whose establishment is mandated by the Constitution as the final appellate court. This is not to preserve some institutional prerogative of the Court itself, but to protect the constitutional right of litigants to bring an appeal against judicial decisions affecting them. The notion that double degree of jurisdiction is an important part of the normal judicial system is widespread in modern legal systems. It is not necessarily a fundamentally guaranteed right (see Toth v Austria     14 EHRR 551 (1991) ). It is, however, recognised throughout the legal structure of this State. It should not be lightly encroached upon or invaded by ambiguous language. The least that is required is that, if the right is to be excluded, this should be done by clear and unambiguous words.
    I agree, therefore, with Geoghegan J that the appeals should be entertained..


    Judgment of Mrs Justice McGuinness delivered the 30th day of January 2002


    I have had the advantage of reading the judgment about to be delivered by Mr Justice Geoghegan and I am in agreement with his reasoning and his conclusions. I wish to add a few brief comments.
    Section 5 sub-sections (2) and (3) of the Illegal Immigrants (Trafficking) Act 2000 provide as follows:
    “5(2) An application for leave to apply for judicial review under the Order [Order 84 of the Rules of the Superior Courts] in respect of any of the matters referred to in sub-section (1) shall
    (a) be made within the period of fourteen days commencing on the date on which the person was notified of the decision, determination, recommendation, refusal or making of the order concerned unless the High Court considers that it has good and sufficient reason for extending the period within which the application shall be made, and
    (b) be made by motion on notice (grounded in the manner specified in Order in respect of an ex parte motion for leave) to the Minister and any other person specified for that purpose by order of the High Court, and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed.
    (3)(a) The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.
    (b) This sub-section shall not apply to a determination of the High Court insofar as it involves a question as to the validity of any law, having regard to the provisions of the Constitution.”

    The procedural history of the above entitled cases has been fully set out by Geoghegan J. in his judgment. In summary, in both cases the Applicant/Appellant seeks orders pursuant to Section 5(2)(a) of the 2000 Act extending the time within which the Applicant may issue and serve a notice of motion seeking relief by way of judicial review. In both cases extension of time was refused by Finnegan J. (as he then was) in the High Court. The Applicants/Appellants seek to appeal the refusal of the High Court to extend time. The question now at issue before this Court is whether the leave of the High Court is required for the bringing of such an appeal.
    Senior Counsel for the Appellants, Mr Trainor, submitted that the application for an extension of time is a separate and distinct application, which must be considered and either allowed or refused prior to the Court’s consideration of the actual application for leave to bring judicial review proceedings and prior to any “determination” of that application. The application to extend time in itself, therefore, is not affected by the provisions of Section 5(3)(a).
    Senior Counsel for the Respondents, Mr McEntee submitted that it was the clear intention and policy of the Act that there should be in general terms no appeal from the determination of the Court in regard to either leave to issue judicial review proceedings or the judicial review proceedings themselves. It would be a strained interpretation to suggest that an appeal should lie from the mere application to extend time. Such an interpretation would lead to an absurd result and should therefore be rejected. He stated that the intentions of the legislature were clear. In a situation where extension of time was refused that would indeed be a “determination” of the leave to seek judicial review and would in fact be the end of the matter. It was clear from the wording of the Act that a decision which determined the proceedings could not be appealed.
    While Counsel for the Appellants argued that an application for extension of time under the Act should correctly be brought separately and in advance of the actual application for leave, I am in agreement with Geoghegan J. that it is of no great moment whether the application for extension of time is sought separately in advance of the actual application for leave or whether the application for extension of time is contained in the same initiating document as the application for leave. In either case the question of extension of time must be the first matter to be considered and decided by the High Court. If extension of time is refused, it may well have the effect of preventing the application for leave; if granted, however, it does not “determine” the application for leave, which the Court must then go on to consider and determine. Since the decision to allow an extension of time is not, therefore, a “determination” of the application for leave, it appears that it would be open to the Respondent to appeal against that decision.
    The right of access to the Courts is a well established and important constitutional right. That right extends to non-nationals. As was stated by the learned Chief Justice giving the judgment of this Court in In the Matter of Article 26 of the Constitution and Section 5 and Section 10 of the Illegal Immigrants (Trafficking) Bill 1999 (Supreme Court 28th August 2000) at page 31 of the judgment:-
    “It would be contrary to the very notion of a State founded on the rule of law, as this State is, and one in which, pursuant to Article 34 justice is administered in Courts established by law, if all persons within this jurisdiction, including non-nationals, did not, in principle, have a constitutionally protected right of access to the Courts to enforce their legal rights. In Murphy v Greene [1992] IR 566 at 578 Griffin J. observed:
    ‘It is beyond question that every individual, be he a citizen or not, has a constitutional right of access to the Courts. Stated in its broadest terms, this is a right to initiate litigation in the Courts’”

    It is accepted that access to the Courts may be regulated by legislation. Such legislation should, however, be clear and unambiguous in its terms.
    The provisions of Section 5(2) and (3) have a very considerable effect on access to the Courts by certain non-nationals. Access is curtailed in particular by the time limit of fourteen days and also by the prohibition of an appeal except with the granting of a certificate by the High Court. The fourteen day limit makes time a matter of crucial importance in this type of application for leave to issue judicial review proceedings - of far greater importance than it is in practice in ordinary applications for leave under Order 84 of the Rules of the Superior Courts.
    When the provisions of Section 5 were being considered by this Court pursuant to the reference by the President under Article 26 of the Constitution, Counsel for the Attorney General laid great stress in his submissions to this Court on the power of the High Court to extend its fourteen day time limit. These submissions are reflected in the judgment of the Court at page 23:
    “As regards the power of the High Court to extend time under Section 5(2)(a), this is analogous to the general power of the Court to extend time for ‘good reason’ under Order 84, Rule 21(1) of the Rules of the Superior Courts. All the Plaintiff has to show, the onus being on him, is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. (O’Donnell v Dun Laoghaire Corporation (No. 2) [1991] ILRM 301 at 315.) It was submitted that it would be impossible to anticipate the infinite variety of circumstances in which applications for extension of time might arise but the jurisdiction of the High Court to extend time under this section is ‘a generous and extensive one’. It was submitted that having regard to the presumption of constitutionality which attaches to the discretionary powers conferred by the Bill (particularly when exercised by the High Court), it must be assumed that factors such as language difficulties, absence of official documentation, impecuniosity, unfamiliarity with the legal system, illness and a host of similar considerations would, in an appropriate case, justify the High Court granting an extension of time. The High Court must extend time should constitutional principles of fairness and protection of constitutional rights so require.”

    This reasoning was accepted by the Court. At page 43 of the judgment the Court held:
    “In applying that test in this case, the Court acknowledges that there are likely to be cases, perhaps even a very large number of cases, in which for a range of reasons or a combination of reasons, persons, through no fault of their own, are unable to apply for leave to seek judicial review within the appeal limitation period, namely fourteen days. This is a situation with which the Courts deal on a routine basis for other limitation periods. The fourteen day time limit envisaged by the Bill is not the shortest with which the Courts have had to deal.

    Moreover the discretion of the Court to extend the time to apply for leave where the Applicant shows ‘good and sufficient reason’ for so doing is wide and ample enough to avoid injustice where an Applicant has been unable through no fault of his or hers, or for other good and sufficient reason, to bring the application within the fourteen day period.”

    It seems to me that the very importance of the power to extend time, on which the constitutionality of the sub-section depended, would lead one to accept the Appellant’s contention that both the application for extension of time and the Court’s decision on that application should be treated separately from the “determination” of the actual application for leave to issue judicial review proceedings. At the very least, this seems to me to be a tenable interpretation of the section. This is particularly so in the situation where a decision to grant a extension of time would not be a “determination” of the application for leave. If one were to accept that a refusal to grant an extension of time amounted to a “determination” of the entire application for leave, this would create a situation where, depending on the decision of the Court, one party to the proceedings would have a right to appeal while the other party would not.
    Article 34.4.3 of the Constitution provides that:
    “The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other Courts as may be prescribed by law.”

    This general right of appeal is an inherent part of the right of access to the Courts. While it may be curtailed by law in certain circumstances, it is well settled (as has been pointed out by Geoghegan J.) that it may be curtailed only if such curtailment is set out in the most clear and unambiguous terms. It appears to me that the relevant statutory provisions in the instant case are sufficiently ambiguous to allow for the interpretation contended for by the Appellants and that therefore the Statute does not clearly prohibit the general right of appeal from a refusal to extend time.
    Since drafting this judgment I have had the opportunity of reading the judgment about to be delivered by Mr Justice Fennelly, with which I also agree.
    I would therefore take the view that the Court should entertain both appeals.




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



    In the above named two appeals the same preliminary objection has been taken by the respondent State authorities. Although the point of objection is in practice identical in each case, procedurally, it comes about slightly differently. In the B. case the applicant/appellant had applied to the High Court (Finnegan J.) for an order under section 5(2) of the Illegal Immigrants (Trafficking) Act, 2000 extending the time within which an application for leave to apply for judicial review could be made, the statutory period of fourteen days having already expired. The application was heard by motion on notice at the hearing of which the State was represented. The learned High Court judge refused to extend the time whereupon counsel for the applicant drew his attention to section 5(3)(a) of the same Act whereby it is provided that
            "the determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court."

    Counsel for the applicant went on to submit that the requirement of leave grounded on a certificate did not apply to a mere application for the extension of time. The learned High Court judge agreed that that was so and this position was acquiesced in by counsel for the State. Some days later however counsel for the State arranged that the matter would be brought back into the court so that he could inform the judge that he had instructions that he ought to have argued that such leave and certificate were acquired. In the absence of consent the learned High Court judge refused to reopen the issue at that stage. I should perhaps have mentioned that the learned judge had granted a stay on the deportation order partly to enable further pleas to be made to the Minister but partly also to enable an appeal to be brought. Mr. B., accordingly, brought an appeal simply against the refusal to extend the time but the Minister has brought a cross-appeal on the grounds:

    "1. That the learned trial judge erred in law and in fact in determining that the applicant did not require leave to appeal a decision to refuse his application for extending the period within which application for leave to apply for judicial review might be made.

    2. That only the High Court can extend the time for bringing an application seeking leave to apply for judicial review under section 5 of the Illegal Immigrants (Trafficking) Act, 2000."


    The procedural history of the S. case was different. In that case the learned High Court judge, who was also Finnegan J., in a reserved judgment took the view that the leave of the High Court was required to appeal a decision refusing to extend time under the 2000 Act before bringing an application for leave to apply for judicial review, though it would appear from the judgment that he was under the mistaken belief that he had arrived at the same decision in the B. case. The learned High Court judge went on to refuse leave but it is worth quoting in full that part of his judgment which is the last paragraph.
            "I am satisfied that the issue as to the true construction of section 5(3)(a) of the Illegal Immigrants (Trafficking) Act, 2000 raises a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court. The very strict time limits imposed by the Illegal Immigrants (Trafficking) Act, 2000 section 5(2)(a) result in a large number of applications in this court for an extension of time within which to seek leave to apply for judicial review. A decision of the Supreme Court would be of assistance to litigants and their legal advisors and in ease of this court. However, as to the circumstances which affect the applicant which form the basis of the application for an extension of time and my decision on the basis of such circumstances to refuse to extend time I do not consider that the same involve a point of law of exceptional public importance or that it is desirable in the public interest that an appeal should be taken to the Supreme Court and accordingly I refuse leave to appeal in respect of my decision in that behalf. However, it may be that in the event that the Supreme Court come to a different conclusion as to the true construction of section 5(3)(a) and hold that leave is not required to appeal my decision not to extend time they may well proceed to determine the appeal against my decision in that regard."
    Mr. S. has appealed against so much of the judgment of Finnegan J. as decided that the determination by the High Court of an application under section 5(2)(a) of the Act of 2000 for an extension of the period within which an application for leave to apply for judicial review may be brought is to be regarded as final, such that no appeal would lie from such a decision to the Supreme Court except with leave of the High Court granted in accordance with the provisions of section 5(3)(a) of the said Act, and further determined that the circumstances which formed the basis of the application for the extension of time and the decision of the High Court judge did not involve a point of law of exceptional public importance and refused leave to appeal in respect of his decision on that issue. Having regard to the decisions of this court in Irish Asphalt Limited v. An Bord Pleanála [1996] 2 IR 179 and Irish Hardware Association v. South Dublin County Council, unreported judgment of Keane C.J. 23rd of January, 2001, no appeal can lie against a decision relating to the certificate or the granting or refusing of leave to appeal. But the question does arise whether an appeal against a refusal to extend time can be brought without the necessity of any such certificate or leave. Counsel for Mr. S. says it can be done and counsel for the State respondents object that such an appeal does not lie. As I have already indicated this objection is in substance the identical objection to that raised in the B. case. Accordingly, this single judgment will cover both cases.

    Article 34.4.3 of the Constitution provides as follows:-

            "The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law."

    This provision of the Constitution was exhaustively considered by this court in The State (Browne) v. Feran [1967] I.R. 147. At p. 156 of the report Walsh J. in a part of his judgment with which the four other members of the court, Ó Dálaigh C.J., Haugh J., Budd J. and FitzGerald J. agreed, observed as follows:
            "Subject only to the extent to which such limitation is imposed by Act of the Oireachtas, the appellate jurisdiction of this court from decisions of the High Court is unlimited."

    In support of that view he cited Warner v. Minister for Industry and Commerce [1929] I.R. 552, Attorney General (Fahy) v. Bruen [1936] I.R. 750 and Sullivan v. Robinson [1954] I.R. 161.

    In People v. Conmey [1975] I.R. 341 Walsh J. observed:-
            "any statutory provision which had as its object the excepting of some decisions of the High Court from the appellate jurisdiction of this Court, or any particular provision seeking to confine the scope of such appeals within particular limits, would of necessity have to be clear and unambiguous."

    It would seem to be clear from the authorities however that an exclusion or regulation of the right to appeal to the Supreme Court need not be expressed. It is a matter of construction of the relevant statutory provision in each case but there must not be any lack of clarity or ambiguity. Hamilton C.J. in Hanafin v. Minister for the Environment     [1996] 2 IR 321 at 389 put it this way:-
            "None of these cases affect the fundamental position that if it is the intention of the legislature to oust, except from or regulate the appellate jurisdiction of this Court to hear and determine appeals from the decisions of the High Court, such intention must be expressed in clear and unambiguous terms and it is a matter for interpretation by the Court as to whether or not any provision of any law which purports to except from or regulate the appellate jurisdiction of this Court is effective so to do."

    In Irish Asphalt Limited v. An Bord Pleanála (cited above) this court, through a judgment of Barrington J. with which the other four members of the court agreed, held that where under the modern planning legislation leave to appeal is required from the High Court on a judicial review, such leave to be given only if the judge certifies that his decision involved a point of law of public importance no appeal lies from the refusal of the High Court to grant such certificate. The court came to this conclusion on the basis that upon the true construction of the relevant statutory provision the High Court and only the High Court could certify. Accordingly, there could be no right of appeal to the Supreme Court. The court followed the reasoning of the former Supreme Court in Attorney General v. Murray (No. 2) [1926] I.R. 300. An unsuccessful attempt to reopen this issue was made in Irish Hardware Association v. South Dublin County Council, also cited above. But the Irish Asphalt case and the Irish Hardware Association case would seem to me to have no bearing on this case. At the stage when a certificate is sought or leave to appeal is sought, the High Court judge has already heard the application for leave to apply for judicial review or the application for judicial review as the case might be. Such an application is in existence and the judge hearing it has a designated role. In this case, however, it is argued on behalf of the appellants that at the stage when the judge decides that the time is not to be extended no application for leave is or could be in existence even if the same notice of motion (which was not the case in these applications) sought the extension of time and the leave. In considering the issues raised on this appeal and the general jurisprudence of this court in relation to restrictions on or regulation of appeals, no assistance can be gained from the certificate cases. I, therefore, turn to considering the application of the general principles.



    In Brady v. Donegal County Council [1989] ILRM 282 Costello J. in the High Court held that legislation providing for a short limitation period without any saving clause enabling the court to lengthen the period in favour of a plaintiff whose ignorance of a cause of action within the period was caused or contributed to by the defendant is unreasonable and does not protect or vindicate the constitutional rights of such plaintiff. In this legislation of course there is a power in the High Court at least to extend the time but on the hearing of the Article 26 Reference relating to this legislation it was argued as a ground of alleged unconstitutionality that the fourteen day time limit was too short. As a member of the court that heard the Reference, I do not remember any discussion at the hearing of the question of whether a refusal to extend the time could be appealed. But where a successful challenge to the validity of a deportation order, for instance, might depend on being entitled to bring a judicial review application the question of extending the time becomes vitally important if the time has run out. Any right to have the time extended differs enormously in quality and value depending on whether it is dependent on the view of a single High Court judge possibly dealing with a lengthy motion list at the same time on the one hand and dependent on the view of a High Court judge with a right of appeal to the Supreme Court on the other hand. It is not a minor procedural difference in the right. It is an immense difference. For the right of appeal against a refusal to extend the fourteen day time limit to be ousted there must, in my view, be clear words to that effect. I now turn therefore to considering the actual wording under the legislation.

    There has been a certain amount of discussion at the hearing of the appeal of the so called "policy" of the legislation. The Act contains miscellaneous provisions and when one refers to the policy of the Act in connection with the issues on this appeal in practice one is referring to the policy behind section 5 of the Act. It seems obvious from a reading of the section that the policy underlying it was a speedy resolution of disputes under the aliens and refugee legislation. The Oireachtas in its wisdom decided that it would not permit challenges to the validity of any of fourteen different categories of documents or steps taken under the legislation as listed in section 5(1) to be litigated through the lengthy procedures involved in plenary proceedings. First of all any such challenges had to be made by way of judicial review. Secondly, there was to be a limited right of appeal from the High Court decisions granting or refusing leave for judicial review or granting or refusing judicial review itself pursuant to such leave. Thirdly, the grounds for obtaining leave were to be somewhat stricter than the ordinary grounds. Fourthly, and very importantly the application for leave to apply for judicial review had to be made within the period of fourteen days commencing on the date on which the person was notified of the decision, determination, recommendation, refusal or making of the order concerned unless the High Court considered that there was good and sufficient reason for extending the period within which the application should be made. If, therefore, an application for leave has not been made within the fourteen day period an applicant must seek an extension of time from the High Court. That extension of time may well be opposed. If it is opposed the controversy which then has to be resolved is a quite different justiciable controversy from the justiciable controversy that might arise on the question of whether leave should be granted or not. While it is true that this court has recently held that on an application for extension of time, the court is entitled to have regard to the fact that the merits of the application might be unstateable or on the other hand particularly strong (unreported judgment of Hardiman J. delivered the 17th of December 2001 in G.K. v. The Minister for Justice, Equality and Law Reform), in many instances the issues on the application for extension of time would be quite different from the issues on the application for leave itself. All sorts of issues can arise on the application for the extension of time such as nondelivery of letters, delay by the applicant's solicitor, difficulties in language communication etc. which might not turn out to be relevant on the application for leave.

    In this connection it is irrelevant in my view whether the application for an extension of time is brought by an independent notice of motion in advance of an application for leave or whether the extension of time is requested in a combined notice of motion seeking the extension of time and then if granted leave for judicial review. In either event the issues involved on the application for extension of time may be substantially different from those involved in the application for leave. Under the express terms of the Act the restrictions on the right of appeal to the Supreme Court apply to the application for leave or the application for judicial review and as a matter of ordinary grammar and syntax, I find it difficult to see how it could be argued that there is an ouster of the right of appeal from a refusal to extend time. If the Oireachtas had intended that, it should have said so. Until the extension is granted there is no application for leave in existence. But even if as a matter of grammar and syntax such an argument could be made there is certainly not a clear and unambiguous ouster of the right of appeal which is required under the constitutional jurisprudence referred to earlier in this judgment.

    An argument can be made against this view based on the provisions of Order 84, r. 21 of the Rules of the Superior Courts. Order 84, r. 21(1) reads as follows:-
            "An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the court considers that there is good reason for extending the period within which the application shall be made."

    Paragraph 1 however is subject to paragraph (3) of the same rule which reads as follows:-
            "The preceding paragraphs are without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made."

    It has been suggested that since any extension of time issue is always wrapped up in the application for leave when it is an ordinary application under the rules it should, as it were, be taken for granted that the Oireachtas intended the same. I do not think that the analogy holds good in any way. First of all the ordinary application for leave in the High Court is made ex parte and although on a literal reading of Rule 21 it might be thought that it is at the stage of that application that the court has to decide whether to extend the time or not more often than not the court postpones time issues until the application for judicial review itself so that the respondent can be in a position to argue the time point before the court and, indeed, there is always the possibility that there might be no objection to the extension of time. But it is clear that whatever be the technically correct procedure under Rule 21(1), it gives way to any statutory provision which has the effect of creating a time limit. It is, therefore, in my view on the terms of the statute alone that this appeal should be decided.

    It was pointed out at the hearing and, indeed, was adverted to at the time of the Reference that there is nothing to prevent an application for extension of time being made before the fourteen day time limit has run out. Counsel for the respondents, Mr. MacEntee, S.C. argues that if such an application was brought for extension of time before the period had run out and was refused there would be no appeal in the absence of leave and the necessary certificate. But he had to concede that if on the other hand the extension of time was granted the State authority would have an appeal to the Supreme Court without requiring leave or the certificate. This must surely be an unfair anomaly. If the Act is interpreted correctly I do not think that there is any need for such anomaly. The refusal of an extension of time in such circumstances is not a "determination" of the application for leave within the meaning of the Act. A "determination" of an application for leave means a decision on an application for leave when such application is properly before the courts. If the time has not been extended such application is not properly before the courts.

    Under the canons of construction which are part of Irish common law I am of the view that this court ought to hold that the restriction on appeal does not apply to the application for extension of time even if, on a general reading
    of the Act, it is considered that such a conclusion would be against the policy of the Act. The policy of the Act can only come into play if there is some genuine ambiguity on the words. I do not think that there is. But at any rate I do not accept that the existence of an automatic right of appeal against refusal of extension of time is necessarily against the policy of the Act. The court has no knowledge nor should it speculate as to what view the Oireachtas would have had on this matter. It may well be for instance that the short fourteen day time limit was arrived at taking into account that there might be an appeal. Secondly, the Attorney General would have advised the Government who piloted the legislation that there would normally be no great delay in the Supreme Court in relation to an appeal against extending time. Except in rare cases it could be dealt with in the Friday Motion List. At the time of the Reference the Attorney General, as is clear from the judgment in the Reference, argued that the jurisdiction of the High Court to extend time under the section was "a generous and extensive one". Indeed, it was not suggested that it should be any more restrictive than an ordinary application for extension of time under the rules. As the issue of the shortness of the time limit was thought to be of considerable importance in considering the constitutionality of the Bill it seems extraordinary that there was no discussion as far as I can recall as a member of the court and as far as I can ascertain from the judgment of a
    restriction on the right to appeal from a refusal to extend time. For the reasons which I have already pointed out the extension of time may be absolutely vital and may be based on quite separate issues. I can find nothing in the Act which restricts the right of appeal to the Supreme Court from the refusal to extend time and I would, therefore, take the view that the court should hear both appeals and that the objections be overruled.





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