J.S.S. and Others v A Tax Appeals Commissioner
| Jurisdiction | Ireland |
| Judge | Mr. Justice Conleth Bradley |
| Judgment Date | 01 November 2023 |
| Neutral Citation | [2023] IEHC 595 |
| Court | High Court |
| Docket Number | 2023/179JR |
and
[2023] IEHC 595
2023/179JR
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Leave – Arguability – Applicants seeking leave to seek certiorari of a decision of the respondent – Whether the applicants’ claim in the proceedings was arguable
Facts: The applicants applied to the High Court seeking leave to challenge by way of judicial review, pursuant to O. 84 of the Rules of the Superior Courts, 1986 (as amended) (RSC 1986), a decision of the respondent, a Tax Appeals Commissioner, dated 1st December 2022. The applicants sought an order of certiorari quashing the decision, characterised in the applicants’ statement of grounds as concerning: “Tax Appeals reference numbers TAC Ref:-184/16, TAC Ref:-185/16; TAC ref:-186/16, TAC ref:-187/16, TAC Ref:-188/16 relating to each of the Applicants respectively and refusing to alter her decision of [sic.,]...13th October 2022 that the burden of proof of non-residence in the jurisdiction was for the Applicants to discharge rather than for the Respondent to establish that the Appellants were chargeable persons.” The applicants also sought an order pursuant to O. 84, r. 20(8) of the RSC 1986 staying the further hearing of the appeals before the respondent pending the determination of the proceedings. The applicants argued that the respondent’s decision contained an error of law on the face of the record in holding that when an appellant, appealing a tax assessment on themselves, raises an issue of tax residency before the Tax Appeals Commissioner, the onus of proving that the taxpayer is not within the jurisdiction of the State is on the appellant rather than on the Revenue Commissioners to show that they have jurisdiction to raise an assessment to tax on that person.
Held by Bradley J that after the first decision dated the 13th October 2022 was made, the respondent agreed to an additional process (which included the furnishing of submissions) in relation to the matter of the onus of proof leading to a further and updated decision in relation to the onus of proof which culminated in the decision dated the 1st December 2022. Therefore, Bradley J held that the applicants were in time to challenge the decision dated 1st December2022. He held that it was for the court hearing the substantive matter to assess the consequences, if any, of a challenge to the decision of the respondent dated 1st December 2022. Turning to the question of arguability, which applied to the leave threshold and was the first matter to be considered in the stay application (having regard to the series of steps outlined by Clarke J in Okunade v Minister for Justice & Ors [2012] IESC 49), Bradley J was of the view that the applicants’ main claim in the proceedings was ‘arguable’ or ‘stateable’ in the sense understood by the decision of the Supreme Court in G v The DPP [1994] 1 I.R. 374. In assessing where the greatest risk of injustice would lie, Bradley J considered the consequences for the applicants of being required to comply with the respondent’s decision of the 1st December 2022 in circumstances where it may be found to be unlawful. Bradley J held that this was not a case where damages (or an undertaking as to damages) was applicable. He held that the applicants’ sole ground for challenge in the case raised an ‘arguable’ ground as to the respondent’s jurisdiction having regard to decisions such as Killeen v DPP [1997] I.R. 218.
Bradley J granted the applicants leave to seek certiorari of the respondent’s decision dated 1st December 2022. Bradley J considered it just and convenient to grant an order pursuant to O. 84, r. 20(8) of the RSC 1986 staying the further hearing of the appeals limited to the applicants only in respect of tax appeals reference numbers TAC Ref:-184/16, TAC Ref:-185/16; TAC Ref:-186/16, TAC Ref:-187/16, TAC Ref:-188/16 until the matter was determined by the High Court.
Application granted.
JUDGMENT ( ex tempore) of Mr. Justice Conleth Bradley delivered on the 1 st day of November 2023
The present application is a contested inter partes hearing (between the applicants and the notice party) where the applicants seek leave to challenge by way of judicial review, pursuant to O.84 of the Rules of the Superior Courts, 1986 (as amended) (“RSC 1986”), a decision of the respondent dated 1 st December 2022.
The following two primary reliefs 1 are sought by the applicants in their Statement of Grounds in relation to this decision.
First, an order of certiorari is sought quashing the decision of the respondent made on the 1 st December 2022. This decision is characterised in the applicants' Statement of Grounds (at paragraph D. Reliefs Sought) as concerning “ Tax Appeals reference numbers TAC Ref:-184/16, TAC Ref:-185/16; TAC ref:-186/16, TAC ref:-187/16, TAC Ref:-188/16 relating to
each of the Applicants respectively and refusing to alter her decision of [sic.,]…13 th October 2022 that the burden of proof of non-residence in the jurisdiction was for the Applicants to discharge rather than for the Respondent to establish that the Appellants were chargeable persons.”Second, the applicants seek an “ Order pursuant to O.84, r. 20(8) of the RSC 1986 staying the further hearing of the Appeals before the respondent pending the determination of the proceedings.”
The following single ground subtends each of the above reliefs.
The applicants argue (at paragraph E(a). Grounds upon which relief is sought of the Statement of Grounds) that the “… Respondent's decision contains an error of law on the face of the record in holding that when an appellant, appealing a tax assessment on themselves, raises an issue of tax residency before the Tax Appeals Commissioner, the onus of proving that the tax payer is not within the jurisdiction of the State is on the appellant rather than on the Revenue Commissioners to show that they have jurisdiction to raise an assessment to tax on that person.”
Counsel for the applicants (Tim Dixon BL) and counsel for the notice party (Benedict Ó'Floinn SC and David Quinn BL) agree that the applicable threshold for this leave application is the standard of ‘arguability’, namely a stateable case – an arguable case in law. Thus, notwithstanding that this is a contested leave application, the applicable threshold remains that set out in G v The DPP [1994] 1 I.R. 374 which is, relatively speaking, a low threshold. 2
What this means in terms of the present application is that the applicants have to persuade the court that the single ground (quoted above at paragraph 6 of this judgment) is ‘arguable’ or ‘stateable’ in the manner in which that term is understood in G v The DPP. In her judgment in G v The DPP [1994] 1 I.R. 374 at 381, Denham J. (as she then was) observed that the preliminary process of requiring leave to apply for judicial review was to effect a preliminary screening or filtering process to prevent an abuse of the process, trivial or unstatable cases proceeding, and thus impeding public authorities unnecessarily (in a similar vein to the prior procedure of seeking conditional orders of the State-side/ prerogative writs).
Denham J. adopted the following passage from Lord Diplock in R v IRC, ex p. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at pp 643 and 644 in describing the lighter burden of proof which applies at the leave stage compared to the altogether heavier burden at the substantive hearing:
“The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.” 3
As mentioned above, the fact that leave application is on notice and is opposed, in this case, by the notice party does not change the applicable threshold.
The central issue which arises, at this stage, in this contested application for leave to apply for judicial review can be simply put.
The applicants seek to challenge the decision of the respondent dated 1 st December 2022. They maintain that after the first decision in time was given on the 13 th October 2022, the respondent was prepared to ‘revisit’ matters which had been addressed in that first decision and thereafter invited and received submissions and then determined the application in the second decision in time dated the 1 st December 2022.
Against the aforesaid contention, it is submitted on behalf of the notice party that the grounds for the applicants' challenge first arose on the 13 th October, 2022 and that no application for leave to apply for judicial review was brought within 3 months of the date of that decision and that the time limit for that decision was not extended by asking the respondent to revisit its ruling and furthermore no application has been made to extend time (pursuant to O.84 RSC 1986). The notice party in oral and written argument submits that time runs from the date of the impugned decision – which it argues was the 13 th October 2022.
While it is common case that the applicants have challenged the decision made on the 1 st December 2022 within 3 months of the date...
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