O'Connor v The Private Residential Tenancies Board & Connell

• Jurisdiction: Ireland
• Judgment Date: 25 June 2008
• Neutral Citation: [2008] IEHC 205
• Date: 25 June 2008
• Docket Number: Citation Number: [2008] IEHC 205
• Court: High Court

THE HIGH COURT

Citation Number: [2008] IEHC 205

2006 No. 840 J.R.

BETWEEN

DONAL O'CONNOR

APPLICANT

AND

THE PRIVATE RESIDENTIAL TENANCIES BOARD

RESPONDENT

AND

KIERAN CONNELL

NOTICE PARTY

Abstract:

Administrative law - Judicial review - Extension of time - Alternative remedy - Whether the applicant justified the delay in bringing these proceedings - Whether an alternative remedy was available to the applicant - Residential Tenancies Act, 2004

Facts: The applicant sought by way of judicial review an order of certiorari of the decisions of the respondent's adjudicator and of the Tribunal itself. The applicant also sought an order of certiorari in relation to the decision of the respondent granting the notice party an extension of time to make a complaint. The applicant also sought an order of prohibition in relation to any enforcement of the determination made and also sought in these proceedings an extension of time to bring this application. The respondent submitted that the applicant ought to have used an alternative remedy.

Held by Hedigan J. in refusing the relief sought: That the applicant did not advance any grounds justifying or explaining the delay of three weeks in bringing these proceedings. The 2004 Act provided a complete code to deal with disputes relating to residential tenancies. The entirety of the case made by the applicant herein could have been made by way of an appeal under s. 123, using a procedure specifically designed for that purpose by the legislature and, in this case, capable of dealing with each complaint.

Reporter: L.O'S.

1 Judgment of Mr. Justice John Hedigan delivered on the 25th day of June, 2008.

2 The proceedings were instituted on the 17th July, 2006, seeking certiorariof the decisions of the respondent's adjudicator made on the 14th September, 2005 and of the Tribunal itself made on the 21st December, 2005. The applicant also seeks an order of certiorariin relation to the decision of the respondent to allow the notice party an extension of time to make a complaint. Finally, he seeks an order of prohibition on any enforcement of the determination made. The applicant seeks in these proceedings an extension of time to bring this application. In relation to delay, the Court notes that an extension was granted on the application for leave. The application for leave is made ex-parteand, of necessity, the Court in question is not able to adjudicate fully on the question of delay because there are no submissions of the respondent heard. This is why the extension of time granted on the application for leave is only a tentative one and must be revisited, if the point of delay is raised by the respondent at the hearing. The respondent is entitled to have their say and to have the matter adjudicated upon. The Court of its own motion may also revisit the issue. The law in relation to delay has been opened to me by counsel for the respondent. In O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301, it is established that the test is an objective one and the applicant bears the onus of proof and must show that there are reasons "which both explain the delay and afford a justifiable excuse for the delay" (per Costello J. at p. 315). I was further referred to the judgment of Mr. Justice Barr in Solan v. DPP & Wine [1989] I.L.R.M. 491 and I was referred in particular to the following passage (at p. 493):

3 "In the absence of evidence explaining delay, there is no basis on which the court can exercise its discretion to grant an extension of time for making the applications".

4 The obligation of the Court to enforce time limits is based upon the need to have some finality in those proceedings which may be the subject of judicial review. It is very important that the courts do not readily grant such extension when the issue is raised at the hearing. What reasons are advanced here to explain the delay and/or to justify it? There do not appear to be any grounds advanced, presumably because there are none. The delay here may well be only three weeks but that of itself does not raise any justifiable ground for extending time. Time limits are there for a good reason. The fact the applicant obviously delayed because he was bringing proceedings under s. 123(3) of the Residential Tenancies Act, 2004, is not something he can rely on, if, having accepted their striking out by the Master of the High Court, he decided to proceed another way. Insofar as he challenges the decision to extend the time for the notice party to bring proceedings, it is clear to me that he became aware of that decision by letter of the 25th June, 2005, one year prior to issuing these proceedings. I do not accept the claim that this information was "buried away with other correspondence". It was information clearly available at a time when the applicant was legally represented. For these reasons, I would refuse to extend the time to bring these proceedings. However, I should go further because an important point was raised and argued, i.e. that the applicant should have used an alternative remedy. What are those alternative remedies? Firstly, the Residential Tenancies Act 2004, (the Act of 2007) provides at s. 88, subs. 4 as follows:

5 "An appeal shall lie to the Circuit Court (by the applicant for the extension or, as the case may be, any other party to the dispute concerned) against a decision of the Board...