Canty v Attorney General and Others

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 19 July 2011
• Neutral Citation: [2011] IESC 27
• Docket Number: [Appeal No: 183/2008]
• Court: Supreme Court
• Date: 19 July 2011

[2011] IESC 27

THE SUPREME COURT

Denham J.

Hardiman J.

Fennelly J.

Macken J.

Finnegan J.

[Appeal No: 183/2008]

Canty v Attorney General & Ors

Between/

Jack Canty

Applicant/Appellant

and

The Attorney General and The Private Residential Tenancies Board

Respondents

and

David Connolly

Notice Party

RESIDENTIAL TENANCIES ACT 2004 S123(4)

RESIDENTIAL TENANCIES ACT 2004 S123(3)

CONSTITUTION ART 34.4.3

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

RESIDENTIAL TENANCIES ACT 2004 S124

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19

CONSTITUTION ART 34.4.4

CONSTITUTION ART 34.4.1

CONSTITUTION ART 40.1

COURTS

Appeal

Appeal from High Court - Restriction - No right of appeal to Supreme Court - Whether valid prohibition to appeal - Whether too vague and/or ambiguous to operate to prevent appeal - Whether Oireachtas had power to prohibit appeal - Whether appeal from decision of Board on questions of constitutionality possible -Whether section discriminatory - Whether trial judge acted within discretion - The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 applied - Residential Tenancies Act 2004 (No 27), s 123 - Constitution of Ireland, Article 34.4 - Appeal dismissed (183/2008 - SC - 19/7/2011) [2011] IESC 27

Canty v Attorney General

Facts: A dispute had arisen between the appellant and his landlord and had given rise to a series of litigation. The appellant had brought an application for leave to seek judicial review for a declaration that s. 123(4) of the Residential Tenancies 2004 was repugnant to the Constitution. He challenged the wording of the section in so far as the decision of the High Court on an appeal from the Tenancy Tribunal was "final and conclusive". The appellant queried whether the section was a valid bar to appeal, was too vague and ambiguous and in violation of the separation of powers. The question arose inter alia as to the provisions of Article 34.4.3 of the Constitution.

Held by Denham J. (Hardiman, Fennelly, Macken, Finnegan JJ.) concurring) that the words of s. 123(4) were clear and unambiguous and had to be so construed. Article 34.4.3 of the Constitution provided for exceptions to the appellant jurisdiction of the Supreme Court to be made by law. The Court was satisfied in all the circumstances that the High Court acted within its discretion in refusing leave to apply for judicial review. The appeal would be dismissed.

Reporter: E.F.

Denham J.

1 JUDGMENT DELIVERED BY DENHAM, J.

2 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 27^th June, 2011. The appellant moved these legal proceedings as a lay litigant.

3 2. This is an appeal by the appellant from an order of the High Court (McKechnie J.) given on the 17^th December, 2007, refusing a declaration in judicial review proceedings that the provisions of s. 123(4) of the Residential Tenancies Act, 2004, are unconstitutional.

4 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 8^th 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.

5 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.

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

6 2 "(1) A determination order embodying the terms of an agreement mentioned in a mediator's report undersection 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.

7 (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 undersubsection (3).

8 (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.

9 (4) The determination of the High Court on such an appeal in relation to the point of law concerned shall befinal and conclusive.

…"

[Emphasis added]

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

11 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 anex tempore judgment on the 17^th December, 2007.

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

"… 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."

8. The High Court held that:-

The learned High Court judge held:-

13 "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.

14 It seems to me that the Oireachtas is entitled under Article 34.4.3° 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 34.4.3° 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 34.4.3° of the Constitution."

15 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.

16 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:-

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

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