Aherne v National Council for Special Education

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 16 March 2023
• Neutral Citation: [2023] IEHC 143
• Court: High Court
• Docket Number: [2022 214 MCA]

Between

Catherine (Otherwise Máire) Aherne

Plaintiff/Applicant

and

The National Council for Special Education

Defendant/Respondant

[2023] IEHC 143

[2022 214 MCA]

THE HIGH COURT

Extension of time – Interests of justice – Arguable grounds of appeal – Applicant seeking an extension of time – Whether there was good or sufficient reason to extend time

Facts: The Labour Court made a decision on 10 June 2022, in respect of which the applicant, Ms Aherne, had 42 days to appeal to the High Court on a point of law. The relevant motion was not issued until 16 August 2022, outside the statutorily mandated period. When the matter first came before the High Court (Meenan J), on 24 October 2022, a date was set for the hearing of a preliminary objection by the respondent, the National Council for Special Education, arising from the foregoing. The respondent initially relied on the applicant’s failure either to reply to the respondent’s correspondence or to serve an affidavit identifying the basis upon which the application to extend time was sought. Since then, the applicant served an affidavit, sworn on 28 November 2022. On 17 February 2023, the Court heard an application, which was moved by the applicant who represented herself, seeking an extension of time pursuant to O. 84 C of the Rules of the Superior Courts (the RSC). The appeal which the applicant wished to advance was confined to what was pleaded in her motion. Para 2.1 comprised a broad allegation that the Labour Court failed to have due regard to the evidence put forward by the applicant. Para 2.2 comprises an assertion that the Labour Court failed to “observe fair procedures by applying different standards for evidence submitted by each of the parties”. Para. 2.3 comprised an assertion that the Labour Court “lacked jurisdiction to disapply any section or sections of Legislation enacted by the Oireachtas”. Para 2.4 constituted an assertion that the Labour Court: “lacked jurisdiction under the Industrial Relations Acts 1946–2015: a. to make a Determination, or b. to disregard pertinent findings of an External Investigator, or c. to overturn the Determination of an external appeals Officer in respect of disciplinary actions taken against a civil servant by the employer”. Paras 2.5 to 2.7, inclusive, comprised pleas of a failure to have regard to the applicant’s “legitimate expectation”. At para. 2.8, the applicant claimed that the Labour Court erred “without submissions from the Respondent” in holding that ‘de minimus’ provisions applied with respect to the removal of the ‘Lead Worker Representative’ role. Para. 2.9 comprised a plea that there was a failure “to have regard to the Respondent’s duty of care to” the applicant and “to other employees and to the public”.

Held by Heslin J that, as well as being satisfied that there was no good or sufficient reason to extend time, he had also come to the view that the applicant’s appeal disclosed no arguable ground and the applicant had failed to state “concisely the question referred for the decision of the High Court” as required by O. 106 of the RSC. Quite apart from being satisfied that the Eire Continental principles (Eire Continental Trading Co. Ltd. v Clonmel Foods Ltd. [1955] IR 170) had not been complied with, Heslin J was also satisfied that to extend time was not required by, or consistent with, the interests of justice in the particular circumstances of the case. Therefore, the Court declined to extend time.

Heslin J’s preliminary view was that there were no factors which would merit a departure from the ‘normal rule’ that ‘costs’ should ‘follow the event’ which, in this case, was the failure of the application to extend time.

Application refused.

JUDGMENT of Mr. Justice Mark Heslin delivered on the 16th day of March 2023

Introduction

1 . By way of the relevant backdrop, the Labour Court made a decision on 10 June 2022, in respect of which the applicant had 42 days to appeal to this Court on a point of law (hereinafter the “Labour Court's decision” or the “decision”).

2 . It is common case that the relevant motion was not issued until 16 August 2022 (i.e. outside the statutorily mandated period). When the matter first came before this Court (Meenan J.), on 24 October 2022, a date was set for the hearing of a preliminary objection by the Defendant/Respondent (hereinafter the “respondent”) arising from the foregoing.

3 . The respondent initially relied on the applicant's failure either to reply to the respondent's correspondence or to serve an affidavit identifying the basis upon which the application to extend time was sought. Since then, the applicant served an affidavit, sworn on 28 November 2022.

4 . On 17 February 2023, this Court heard an application, which was moved by Ms. Aherne (hereinafter the “applicant”) who represented herself, seeking an extension of time pursuant to O. 84 C of the Rules of the Superior Courts (hereinafter the “RSC”).

Affidavits

5 . For the purposes of this judgment, I have carefully considered the contents of the following:-

• (i) The applicant's originating notice of motion;

• (ii) The applicant's grounding affidavit and the exhibits thereto (the last of which comprises a copy of the Labour Court's decision dated 10 June 2022);

• (iii) The replying affidavit sworn by Mr. Tadgh O'Leary, personnel officer, on behalf of the respondent and the exhibits thereto;

• (iv) The applicant's replying affidavit of 28 November 2022 and the exhibits thereto;

• (v) Relevant statutory provisions.

6 . Before proceeding further, it is appropriate to make reference to the legislative context in which the present issue falls to be determined.

Workplace Relations Act 2015

7 . Section 46 of the Workplace Relations Act 2015 (as amended) (hereinafter the “2015 Act”) lays down a 42–day time limit with respect to an appeal against a decision by the Labour Court, on a point of law, to this Court. The section is in the following terms:-

“ Appeal to High Court on point of law

46. A party to proceedings before the Labour Court under this Part may, not later than 42 days from the service on that party of notice of the decision of the Labour Court in those proceedings, appeal that decision to the High Court on a point of law, and the decision of the High Court in relation thereto shall be final and conclusive”. (emphasis added)

8 . In light of the foregoing, the starting point for the analysis is that the will of the Irish people, as expressed through legislation enacted by the Oireachtas, is to impose a strict 42–day (i.e., six week) time limit within which to bring an appeal. Furthermore, such an appeal is not a re–hearing of the merits, rather, it is confined to a point of law.

9 . The role of the court in a point of law appeal is something I referred to at para. 32 of my decision in McLoughlin v. Murray [2022] IEHC 537 wherein, at para. 32, I quoted from the decision of Gilligan J. in ESB v. The Minister for Social, Community and Family Affairs & Ors. [2006] IEHC 59, in which the learned judge set out the relevant law, in a passage which is useful to cite for present purposes:-

“ The Law

In ( Deely v. Information Commissioner Unreported, High Court, 11th May, 2001) McKechnie J. noted at p. 17 that the remit of the Court in an appeal on a point of law encompassed the following:

(a) it cannot set aside findings of primary fact unless there is no evidence to support such findings,

(b) it ought not set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision making body could draw,

(c) it can however reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect, and finally,

(d) if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that also is a ground for setting aside the resulting decision. See for example Mara (Inspector of Taxes) v Hummingbird Limited [1982] I.R.L.M. 421, Henry Denny and Sons (Ireland) Limited v Minister for Social Welfare [1998] 1 IR 34 and Premier Periclase v Valuation Tribunal HC 24th June, 1999 U/R.”

Order 106 RSC

10 . Order 106 of the RSC concerns:-

“ Proceedings under the Employment Equality Acts 1998 and 2004 and the Workplace Relations Act 2015”.

11 . O. 106, r. 2 states that:-

“ 2. Any appeal to the High Court on a point of law from a determination on appeal of the Labour Court under section 90(1) of the Act (as substituted by section 46 of, and the Schedule to, the Act of 2004) shall be brought by originating notice of motion”.

12 . Order 106, rr. 4 to 6 state the following:-

“ 4. In all cases the originating notice of motion referred to in rule 2 shall be served on all parties to the determination of the Labour Court and on the Minister for Business, Enterprise and Innovation.

5. The originating notice of motion referred to in rule 2 shall be issued within 42 days of the date on which the determination of the Labour Court was given. (emphasis added)

6. Any question referred to the High Court by the Labour Court pursuant to section 90(2) of the Act (as substituted by section 46 of, and the Schedule to, the Act of 2004) shall be brought by originating notice of motion, entitled in the matter of the Act, on the application of the Labour Court. The originating notice of motion shall state concisely the question referred for the decision of the High Court and shall be served on all parties to the appeal before the Labour Court”. (emphasis added)

Order 84 C, RSC

13 . Order 84 C concerns the “ Procedure in Statutory Appeals”. Order 84 C r. 2 (1) states:-

“ 2. (1) The appeal shall be commenced by way of originating notice of motion (in this Order hereinafter called “the notice of motion”). The notice of motion shall be entitled in the matter of the provision of the enactment pursuant to which the appeal is made. The...