Dennis O'Brien v Revenue Commissioners

JurisdictionIreland
JudgeMr. Justice Barton
Judgment Date27 June 2014
Neutral Citation[2014] IEHC 347
CourtHigh Court
Docket Number[2013 No. 144 CA]
Date27 June 2014

[2014] IEHC 347

THE HIGH COURT

[No. 144 C.A./2013]
O'Brien v Revenue Cmrs

BETWEEN

DENNIS O'BRIEN
APPELLANT

AND

THE REVENUE COMMISSIONERS
RESPONDENTS

COURTS OF JUSTICE ACT 1936 S31(2)

TAXES CONSOLIDATION ACT 1997 S942

TAXES CONSOLIDATION ACT 1997 S941

TAXES CONSOLIDATION ACT 1997 S941(4)

TAXES CONSOLIDATION ACT 1997 S942(3)

TAXES CONSOLIDATION ACT 1997 S956(1)(B)(I)

TAXES CONSOLIDATION ACT 1997 S956(1)(C)

TAXES CONSOLIDATION ACT 1997 S956(2)(A)

TAXES CONSOLIDATION ACT 1997 S956(2)(C)(II)

COURTS OF JUSTICE ACT 1936 S37

RSC O.61

COURTS OF JUSTICE ACT 1936 S39

PRENDERGAST & SON LTD v CARLOW CO COUNCIL 1990 2 IR 482 1990 ILRM 749 1990/5/1144

P (L) v P (M) 2002 1 IR 219 2001/20/5450

CANTY v PRIVATE RESIDENTIAL TENANCIES BOARD & CONNOLLY 2008 4 IR 592 2008/6/1149 2008 IESC 24

COURTS OF JUSTICE ACT 1936 S38

RESIDENTIAL TENANCIES ACT 2004

TAXES CONSOLIDATION ACT 1997 S943

CAMPBELL v O'DONNELL & ORS UNREP FINNEGAN 26.7.2005 2005/8/1780 2005 IEHC 266

O'H v O'H 1990 2 IR 558 1991 ILRM 108 1990/8/2131

HARRISRANGE LTD v DUNCAN 2003 4 IR 1 2002/12/2982

GOULDING CHEMICALS LTD v BOLGER 1977 IR 211

COURTS OF JUSTICE ACT 1936 S34

COURTS OF JUSTICE ACT 1936 S40

COURTS OF JUSTICE ACT 1936 S38(2)

HALSBURYS LAWS OF ENGLAND 5ED VOL 12 CHAP 25 PARA 1657

AG v SILLIM & ORS CLAIMING THE "ALEXANDRA" 1863 33 LJ EX 209 1863 3 F & F 646 1864 10 HL CAS 704 1863-1864 12 WR 641 1863 176 ER 295

PONNAMMA v ARUMOGAM 1905 AC 383 1904-1905 21 TLR 524

SOCIETY FOR THE PROTECTION OF UNBORN CHILDREN (SPUC) v GROGAN & ORS 1989 IR 753 1990 ILRM 350 1990 1 CMLR 689 1989/8/2447

DUBLIN WELLWOMAN CENTRE LTD v IRELAND 1995 ILRM 408

PODBERY v PEAK 1981 1 AER 699 1981 2 WLR 686 1981 CH 344 1981 125 SJ 290

BANKRUPTCY ACT 1914 S108(2)(A) (UK)

B & S (BENSON & SAALIM) v GOVERNOR OF TRAINING UNIT GLENGARRIF PARADE & MIN FOR JUSTICE & INTERIM REFUGEE APPEALS AUTHORITY 2002 1 IR 296 2002 2 ILRM 161 2002/5/935

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

BARRY v BUCKLEY 1981 IR 306

Tax – Civil Procedure – Statutory Interpretation – Right to Appeal – Jurisdiction to strike out proceedings

Facts: The appellant sought to appeal by way of rehearing to the circuit court pursuant to s. 942 of the Taxes Consolidation Act 1997 ('the 1997 Act') against a decision taken by the Appeal Commissioners. However, the circuit court struck the appellant"s application to appeal out. The appellant subsequently appealed to the High Court against the circuit judge"s order. The respondents sought an order to strike out the appellant"s appeal against the circuit court"s decision by relying upon s. 31(2) of the Courts of Justice Act 1936 ('the 1936 Act'). The respondents argued that this provision precluded any appeal in relation to a tax matter. This court was asked to determine whether the Circuit Court"s decision fell within the scope of s. 31(2) of the 1936 Act. If it did, the respondents submitted that the Circuit Judge"s order disposed of the appellant"s appeal against the Appeal Commissioners decision because the circuit courts decision was final and unappealable to the High Court.

Held by Barton J: The court had jurisdiction to strike out cases even when the outcome is dependant upon the interpretation of a statutory provision; however, the jurisdiction to strike out any case should be exercised sparingly. The purpose of s. 942 of the 1997 Act was to give aggrieved taxpayers a statutory right to appeal against a determination made by the Appeal Commissioners. Section 942 requires a Circuit Court judge to rehear an appeal. Section 942(2) stipulates that the Appeal Commissioners determination of the appeal should be recorded in a prescribed form to be transmitted to the judge at or before the rehearing of the appeal. In this instance, no such form was transmitted to the circuit judge for consideration and no arrangements were made to fix a date for a rehearing of the appeal as required by s. 942(3) of the 1997 Act.

The Court did not construe the wording of s. 31(2) of the 1936 Act in the way the respondents contended because to do so would mean that the appellant would be denied the statutory right to appeal and have the matter reheard by a circuit court judge. Furthermore, the respondent"s interpretation of s. 31(2) would have resulted in a manifestly unjust and absurd outcome. Barton J said this would not have been the Oireachtas intention. Due to the non-compliance with the procedural process required by s. 942(2) and s. 942(3) the matter before the circuit court was not an appeal within the meaning of s. 942 of the 1997 Act. Therefore, it followed that the circuit courts order was not a decision on the appellant"s appeal within the meaning of s. 31 of the 1996 Act. Instead, the circuit courts order related to a procedural application that can be appealed to the High Court by virtue of s. 37(1) of the 1996 Act. The court refused the respondent"s application to strike out the appellant"s appeal.

1

JUDGMENT of Mr. Justice Barton delivered on the 27th day of June, 2014

2

1. This matter comes before the court by way of motion on notice dated 17 th September, 2013, in which the respondents seek an order striking out the appellant's appeal against an order of the Circuit Court dated 1 st July, 2013, whereby the appellant's application to have his appeal to the Circuit Court from the determination of the Appeal Commissioners dated 20 th July, 2011, listed of hearing, was struck out.

3

2. The respondents invoke the inherent jurisdiction of this Court to strike out the appellant's appeal having regard to the provisions of s. 31(2) of the Courts of Justice Act 1936, which provides as follows:-

"Notwithstanding anything contained in this Part of this Act, no appeal shall lie from any decision of the Circuit Court on an appeal to that Court under an enactment relating to a tax or duty under the care and management of the Revenue Commissioners, save only such (if any) appeal (including an appeal by way of case stated) as may lie under any such enactment as aforesaid in force immediately before the commencement of this Part of this Act."

4

3. Following upon the order of the Circuit Court of 1 st July, 2013, the appellant's solicitors, by letter dated 5 th July, 2013, wrote to the respondent in the following terms:-

"Our client has considered his position arising from the decision of the Appeal Commissioners on 20 th July, 2011 and, as represented to the Circuit Court on 1 st July, 2013, he is electing to appeal by way of rehearing to the Circuit Court. In light of the decision of her Honour Judge Linnane on 1 st July, 2013, we are appealing that issue to the High Court."

5

Our client has not applied to the High Court to list the case stated for hearing. In relation to the motion issued by your client in the High Court on 2 nd May, 2013, we agree that no case stated is currently properly before the High Court arising from the decision of the Appeal Commissioners on 20 th July, 2011. In those circumstances we do not see any basis for the continuance of the motion as issued by your client in that the underlying matter to your motion is not properly before the High Court. We propose to inform the Central Office of this in respect of the underlying matter bearing record No. 2012/1004R."

6

4. In response to that letter and the service of the notice of appeal, the respondents by letter of even date wrote to the appellant's solicitor in the following terms:-

"I acknowledge receipt of the notice of appeal served on this office on 5 th July. Please note there is no appeal to the High Court in this matter pursuant to the Courts of Justice Act 1936 and/or the Rules of the Superior Court. I refer you to s. 31(2) of the Courts of Justice Act 1936, which specifically excludes such an appeal in a tax matter, save for such appeal as may lie under the enactments relating to tax."

7

5. The issue for determination by the court on this application is in essence a net point of law, namely whether the order of the Circuit Court made on 1 st July, 2013, was a decision within the meaning of s. 31(2) of the Courts of Justice Act 1936 (hereinafter referred to as the Act of 1936) and if so whether, on a true construction of the wording of that subsection, the order of the Circuit Judge (hereinafter referred to as the order of 1 st July, 2013) was final, conclusive, unappealable to the High Court and effective to dispose of the appellant's appeal to the Circuit Court pursuant to s. 942 of the Taxes Consolidation Act 1997 (hereinafter referred to as the TCA of 1997) against the determination of the Appeal Commissioners made 20 th July, 2011 (hereinafter referred to as the determination of 20 th July, 2011).

Background
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6. The court is not concerned on the present application with the substance of the appellant's appeal against the order of 1 st July, 2013 nor, for that matter, with the appellant's appeal to the Circuit Court against the determination of 20 th July, 2011, but rather with a construction of the meaning of s. 31(2) of the Act of 1936. It is considered useful, however, to summarise the factual background and relative legislative provisions so as to place the within application in context.

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7. Section 941 of the Act of 1997, provides, inter alia:-

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2 "(1) Immediately after the determination of an appeal by the Appeal Commissioners, the appellant or the inspector or such other officer as the Revenue Commissioners shall authorise in that behalf (in this section referred to as 'other officer '), if dissatisfied with the determination as being erroneous in point of law, may declare his or her dissatisfaction to the Appeal Commissioner who heard the appeal.

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