Canty v Ireland & ors, [2011] IESC 27 (2011)

Docket Number:183/08
Judge:Denham J.

THE SUPREME COURT[Appeal No: 183/2008] Denham J. Hardiman J.Fennelly J.Macken J.Finnegan J.Between/Jack CantyApplicant/Appellant andThe Attorney General and The Private Residential Tenancies BoardRespondents andDavid ConnollyNotice PartyJudgment 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.History3. 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 20045. 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".Proceedings6. 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 Judgment8. 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...

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