Beatty and Beatty v Rent Tribunal

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Diarmuid B. O'Donovan,Mr Justice Finnegan
Judgment Date16 May 2003
Neutral Citation2001 WJSC-HC 285,2003 WJSC-HC 1063
Docket NumberNo. 110 JR/2001,JUDICAL REVIEW No.110JR/2001
Date16 May 2003

2001 WJSC-HC 285

THE HIGH COURT

No. 110 JR/2001
BEATTY v. RENT TRIBUNAL
Judicial Review

BETWEEN

MARK BEATTY AND WALTER BEATTY
APPLICANTS

AND

THE RENT TRIBUNAL
RESPONDENT

AND

FRANCIS MCNALLY
NOTICE PARTY

Citations:

HOUSING (PRIVATE RENTED DWELLINGS) ACT 1982 S13

HOUSING (PRIVATE RENTED DWELLINGS) (AMDT) ACT 1983

HARVEY V SHELTON 1844 7 BEAV 455

DOBSON V GROVES, RE: GREGAN & ARMSTRONG 1894 70 LT 106

ROYAL COMMISSION ON SUGAR SUPPLY V KWIK HOO TONG 1922 38 TLR 684

BRIEN & BRIEN, RE 1910 2 IR 84

CATALINA SS V NORMA 1938 61 LIL REP 360

HEGARTY, STATE V WINTWR 1956 IR 320

HOUSING (PRIVATE RENTED DWELLINGS) ACT 1982 S13(2)

HOUSING (PRIVATE RENTED DWELLINGS) ACT 1982 S13(1)

QUIRKE V FOLIO HOMES LTD 1988 ILRM 496

Synopsis

LANDLORD AND TENANT

Rent tribunal

Certiorari - Valuation - Inspection of premises - Determination -Whether determination of respondent flawed - Audi alteram partem - Housing (Private Rented Dwellings) Act, 1982 - Housing (Private Rented Dwellings) (Amendment) Act, 1983 (2001/110JR - Finnegan J - 25/7/01)

Beatty v Rent Tribunal

The applicants, as landlords of a premises, sought a review of the terms of a tenancy under the relevant Private Rented Dwellings legislation. A determination was made by the respondent which the applicants sought to have quashed on various grounds. The applicants complained that they had not been informed of the time of the inspection and furthermore had not been afforded sufficient time to respond to the valuation report submitted by the tenant. Mr Justice Finnegan was satisfied that the requirements of natural justice had not been met. In addition the respondent had failed to furnish adequate reasons for its determination and the determination would be quashed.

1

Mr Justice Finnegandelivered the 25th day of July, 2001

2

The Applicants made application to the Respondent for a review of the terms of the tenancy in premises 10 Newgrove Avenue, Sandymount, Dublin pursuant to the provisions of the Housing (Private Rented Dwellings) Act, 1982and the Housing (Private Rented Dwellings) (Amendment) Act, 1983the Applicants being the landlord and the Notice Party the tenant in respect of the tenancy. The Applicants seek an Order of Certiorari quashing the determination of the Respondent on the said application on a number of grounds which may be summarised as follows:-

3

1. The Respondent carried out an inspection of the premises in the presence of the Notice Party but in the absence of the Applicants.

4

2. The Respondent afforded the Applicants insufficient time to respond to the Notice Party's valuation report.

5

3. The Respondent failed to give any or any adequate reasons for its determination and/or to make directions as to works to be carried out in the premises as a term of the tenancy.

6

I propose to deal with each of these grounds in turn.

7

1. The Respondent carried out an inspection of the premises in the presence of the Notice Party but in the absence of the Applicants

8

It is the practice of the Respondent to inspect the premises the subject matter of an application to it. By letters dated the 21st of August 2000 and 13th November 2000 the Respondent notified the Applicants of its intention to inspect the premises the subject matter of the application giving rise to these proceedings. The letter of 13th November 2000 is in the following terms:-

"Arrangements have now been made for the inspection of the above dwelling and determination of the case by the Tribunal. Inspection will take place on the morning of Wednesday 29th November 2000.

I should point out that the landlord (or his representative) is entitled to attend at the inspection and the tenant has so beeninformed.

The case will determined on the day of the inspection and you will be notified of the decision of the Tribunal in duecourse"

9

The Applicants" Solicitor in response to this letter wrote to the Respondent on the 20th November 2000 seeking a specific time for the inspection and further in default of reply to his letter made a phone call to the Respondent to the like effect on the 21st November 2000. The Respondent could have been in no doubt but that the Applicants intended to be represented at the inspection. The Applicants were not informed of the time scheduled for the inspection. The reason for this, it appears, is that the Respondent carries out a number of inspections on the same day and the most precise information availablehad already been given - the inspection would be carried out in the morning on the day specified. The Applicants" Solicitor contacted the Respondent on the 29th November 2000, the day specified for the inspection, by telephone and was given to understand that the inspection would be carried out at midday and he attended at the premises at that time. However, the inspection was in fact carried out at 11.00 a.m. in the presence of the Notice Party's representative but without any attendance by or on behalf of the Applicants. The determination of the Respondent was made the same day.

10

The rules of natural justice apply to tribunals of whatever kind and whether judicial or other. The rule audi alteram partemnecessarily applies in every case notwithstanding that the content of the other requirements of natural justice may vary depending on the circumstances which attend any particular tribunal. In Harvey -v- Shelton 1844 7 BEAV. 455 at 462 Langdale MR said:-

"It is so ordinary a principle in the administration of justice that no party to a cause can be allowed to use any means whatsoever to influence the mind of the judge, which means are not known to and incapable of being met and resisted by the other party, that it is impossible for a moment not to see that this was an extremely indirect mode of proceeding to say the very least of it. It is contrary to every principle to allow such a thing and I wholly deny the difference which is alleged to exist between mercantile arbitrations and legal arbitrations. The first principles of justice must be equally applied in every case. Except in the few cases where exceptions are unavoidable both sides must be heard and each in the presence of the other. In every case in which matters are litigated, you must attend to the representations made on both sides and you must not, in the administration of justice in whatever form, whether in the regularly constituted courts or in arbitrations whether before lawyers or merchants, permit one side to use means of influencingthe conduct and decisions of the judge which means are not known to the other side."

11

It is not open to a Tribunal to take evidence from one side in the absence of the other: Dobson -v- Groves, re: Gregan andArmstrong 1894 70 L.T 106. This is so even though the evidence is immaterial: Royal Commission on Sugar Supply -v- Kwik Hoo Tong (1922) 38 TLR 684.

12

An inspection by one of two arbitrators of a farm which was to be valued in the arbitration in the company of the party who nominated him resulted in the award being set aside on the ground of misconduct: In Re: Brien and Brien 1910 2IR 84.

13

The Court is not concerned solely with the fact that injustice has been done: even where it is clear that no injustice has been done to the objecting party while the Court has a discretion not to interfere it will have regard to the requirement that justice must be seen to be done, that is to the appearance of a fair hearing: CatalinaSS -v- Norma (1938) 61 L1. L. Rep. 360 and InRe: Brien and Brien Supra. Thus in The State (Hegarty) -v- Winters 1956 I.R 320 where an arbitrator appointed by the Land Values Reference Committee under the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919 inspected lands with an employee of the Respondent County Council his award was quashed by the Supreme Court, Maguire C.J. at p.336 said:-

"The action of the arbitrator in going upon the lands the subject matter of the arbitration might, in the view of this Court, reasonably give rise in the mind of an unprejudiced onlooker to the suspicion that justice was not being done. The fundamental rule that it is necessary not alone that justice be done, but that it must be seen to be done was broken and in our opinion the award cannot be allowed tostand."

14

In the present case I am not, and it is not necessary that I should be, satisfied that the Respondent's manner of proceeding resulted in unfairness. It could however give rise in the mind of an unprejudiced observer to the suspicion that justice was not done. Justice must be seen to be done. Accordingly I propose granting an Order of Certiorari quashing the determination of the Respondent on this ground.

15

2. The Respondent afforded the Applicants insufficient time to respond to the Notice Party's valuation report.

16

The Applicants made application to the Respondent by Notice in Form RT3 dated 17th July, 2000. The Notice Party responded by Notice in Form RT4 on the 31st July, 2000. By letter dated 21st August 2000 the Respondent required submissions from the Applicants and the Notice Party not later than the 1st September, 2000. The Applicants furnished a valuation report to the Respondent on 29th August, 2000. The Notice Party did not furnish a valuation report to the Respondent until 24th November, 2000. The Respondent furnished a copy of the Applicants" valuation report to the Respondent upon receipt of the same and furnished a copy of the Notice Party's valuation report to the Applicants by letter dated 22nd November, 2000. The latter report raised issues as to the condition of the premises for the first time. The Applicants sought an adjournment of the determination having already being informed that an inspection of the premises by the Respondent would take place on 29th November, 2000 and that the Respondent's determination would be made on the same day. They wished for time to enable them to repute some matters in the Notice Party's...

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