Hayde v Residential Institutions Redress Board
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE McCARTHY |
| Judgment Date | 03 October 2007 |
| Neutral Citation | [2007] IEHC 381 |
| Docket Number | 1305 JR/2006 |
| Court | High Court |
| Date | 03 October 2007 |
[2007] IEHC 381
THE HIGH COURT
BETWEEN:
RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8(2)
RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8(3)
RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8(1)
FOLEY v JUDGE MURPHY & ANOR UNREP MCCARTHY 2.7.2007 2007 IEHC 232
O'MAHONY v BALLAGH & DPP 2002 2 IR 410
MCCORMACK v GARDA SIOCHANA COMPLAINTS BOARD 1997 2 IR 489
GARDA SIOCHANA COMPLAINTS ACT 1986
CREEDON, STATE v CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51
LYNCH, STATE v COONEY 1982 IR 237
INTERNATIONAL FISHING VESSELS LTD v MIN FOR MARINE 1989 IR 149
DALY, STATE v MIN FOR AGRICULTURE 1987 IR 165
P (F) v MIN JUSTICE 2002 1 IR 178
IMMIGRATION ACT 1999
LAURENTIU v MIN FOR JUSTICE 1999 4 IR 26
I hereby certify the following to be a true and accurate transcript of my shorthand notes of the above named proceedings.
Transcripts are the work of the shorthand writer and they must not be printed, photocopied, electronically transmitted or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission from the shorthand writer.
2, ARRAN QUAY, DUBLIN 7.
MR. CROSS: There is a stenographer here.
MR. JUSTICE McCARTHY: Thank you very much. I was going to organise one. This is an application by way of judicial review by Mr. Hayde of a decision of the Residential Institutions Redress Board, to refuse an extension of time to him, for his application on the merits to that Board, pursuant to the provisions of article of Section 8 of that Act.
We know that the time period prescribed for applications under the Act is three years from the establishment day as prescribed by the Minster, and we know also, and the record shows, in or about six months or perhaps slightly more, subsequent to the expiry of the three year period for applications contemplated by the Act, an application was made by the Applicant which meant that it was placed in the hands of the Board as to the exercise of the discretion vested in them by the Section 8(2) of the Act. Section 8(3) of the Act also contemplates an extension of the period of time for applications in respect of persons who were of unsound mind but he did not fall into that category.
Peart g made an order on the 20th of November, 2006 affording liberty to the Applicant to seek judicial review on all grounds in his statement of grounds and thereafter, a notice of motion was duly issued for the 12th of December, 2006, seeking that relief. It comes before me today and it came before me yesterday for hearing. The relief which is set out in the statement of grounds and is as follows;
2 (1), in determining whether to exercise its discretion under Section 8.2 of the Residential Institutions Redress Act2002 or in exercising that discretion the Respondent is obliged by law and has a duty under a Constitution to give reasons for its decision.
3 (2), the Respondent is obliged to give reasons for its determination that the grounds proffered by the Applicant in his application pursuant to Section 8(2) do not amount to exceptional circumstances.
4 (3), the Respondent is obliged to give reasons for its determination pursuant to Section 8(2) that there are not grounds in the Applicant's case for extending the relevant period.
5 (4), alternatively the Respondent has not given adequate reasons for its determination that the grounds proffered by the Applicant do not amount to exceptional circumstances for its determination that there are not grounds for extending the relevant period.
6 (5), the Applicant is severely prejudiced by the Respondents refusal to give reasons.
7 (6), the Respondent's failure to give reasons makes any challenge by the Applicant to the Respondent's decision, extremely difficult and caused the Applicant grave prejudice in that regard.
8 (7), the Applicant's circumstances are such that the Respondent ought to have exercised its discretion under Section 8(2) of the Residential Institutions Redress Act2002 in extending the time limit in which an application might be made.
I should say that of those grounds, number seven pertains to what I might term the substantive merits of the adjudication as to whether or not time should be extended and does not pertain to the question of reasons, and the necessity for giving reasons, which seems to me to be the core ground which is being pursued in this Court and was pursued in the hearing. I do not think that I am misconceived in my view when I say that I think that any substantive attempt to quash the decision because, for example, it was irrational or alleged to be wrong was not pursued and, of course, it would not be possible to seek to quash a decision merely if it was thought that the discretion could have been exercised in a different way - that would be to seek to convert a judicial review proceeding into a species of appeal.
The order which is sought to be quashed was an order of the 26th of September, 2006. A previous order had been made subsequent to the initial application, grounded on an affidavit of the Applicant for that extension of time, but in or about the time when the matter was placed before the Board for that purpose Ms. Rosario Lee & Company sought a postponement of an adjudication for the purpose of submitting additional material. It seems there was a misunderstanding and the Board made an adjudication, quite properly, and the Board is not criticised, and in any way I do not do so: The Board agreed to retake the decision, because of that misunderstanding and accordingly, the relevant decision for the purpose of this case is that of the 26th of September, and it is necessary to refer to that decision, which is in the form of a letter, for the purpose of this judgment.
I'll read that because I think it should appear in extenso in the judgement. The document is headed "Decision of the Board" and it provides as follows in the substantive part:- "The Board had considered the request of the Applicant for an extension of the application period in respect of this application. The Board has considered the request and decided, (A), the Board does not consider that there are exceptional circumstances within the meaning of Section 8.2 of the Residential Institutions Redress Act hearing after the Act, such as to allow the Board to exercise its discretion under the Act and/or the Board is not satisfied that the Applicant was under a legal disability by reason of unsound mind at the time the application should have been made, and, therefore, the provisions of Section 8.3 of the same Act do not apply. In reaching the above decisions the Board has considered!
2 (1), the application received from the Applicant.
3 (2), all accompanied documentation.
4 (3), all medical reports submitted.
5 (4), all explanations tendered by or on behalf of the Applicant together with any submissions made on the Applicant's behalf. The application is, therefore, not validly received within the statutory period provided in the Act and will not be further considered."
The Applicant took the view that no reasons were given by that letter, indeed I think mistakenly, but nonetheless that view was taken and by letter of the 3rd of October, 2006, Ms. Lee sought the reasons for the refusal. Indeed a subsequent letter was written in that regard on the 16th of October, 2006. A reply to that letter was received dated the 19th of October, 2006, and the substantive part, which I will again quote in extenso, is as follows:-
"The provisions of the Residential Institutions Redress Act2002 relating to the period in which an application for redress to the Board must be made and extensions of time in relation thereto are contained in Section 8 thereof. That Section states as follow, "Section 8.1, an Applicant shall make an application to the Board within three years of the establishment day.
2 (2), The Board may, at its discretion and where it considers there are exceptional circumstances, extend the period referred to in Subsection 1.
3 (3), the Board shall extend the period referred to in Subsection 1 where it is satisfied that the Applicant was under a legal disability by reason of unsound mind at the time when such application should otherwise have been made and the Applicant concerned makes an application to the Board within three years of the cessation of that disability.
By order of the Minister of Education and Science made on the 16th of December 2002, that date was appointed as the establishment day for the purpose of the Act. Accordingly, applications for redress were required to be received by the Board on or before the 15th day of December, 2005. Your client's application was not received by the Board until the 8th of June, 2006. As regards Mr. Hayde's application, clearly the provisions of Section 8.3 of the Act are not of relevance on the basis of the medical evidence provided to the Board. Under the provisions of the 2002 Act, the Board has a discretion under the terms of Section 8.2 to extend the time period referred to in Section 8.1 where there are exceptional circumstances. In any application by an Applicant to extend the period specified in Section 8.1 of the Act it is incumbent on the Applicant to establish that there are exceptional circumstances which require the Board to exercise its discretion to extend the period.
Having carefully considered all the papers furnished on behalf of the Applicant, together...
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