Property Services Regulatory Authority v Dooley

• Jurisdiction: Ireland
• Judge: Ms. Justice Butler
• Judgment Date: 21 October 2024
• Neutral Citation: [2024] IECA 251
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number: 2023/269

Between/

The Property Services Regulatory Authority

Applicant/Respondent

and

Gabriel Dooley

Respondent/Appellant

[2024] IECA 251

Costello P.

Pilkington J.

Butler J.

Court of Appeal Record Number: 2023/269

High Court Record Number: 2023/93 MCA

THE COURT OF APPEAL

CIVIL

Time limits – Statutory interpretation – Extension of time – Appellant seeking to appeal against a decision of the respondent outside of the 30-day time limit fixed by s. 70(1) of the Property Services (Regulation) Act 2011 – Whether the time limit contained in s. 70(1) of the Property Services (Regulation) Act 2011 is absolute

Facts: The respondent, the Property Services Regulatory Authority (the PSRA), following an investigation into a complaint made against the appellant, Mr Dooley, who was at the time a licenced property professional, found that the appellant was guilty of improper conduct and imposed a major sanction on him – a fine of €10,000. The particular questions before the High Court were whether the appellant could seek to appeal against that decision outside of the 30-day time limit fixed by s. 70(1) of the Property Services (Regulation) Act 2011 and, if so, whether time should be extended to permit the intended appeal to be brought. Both of those questions were decided against the appellant by the President of the High Court ([2023] IEHC 419) on the 17th July 2023. However, since the date of the High Court decision a seminal judgment had been delivered by the Supreme Court in the case of Kirwan v O’Leary [2023] IESC 27 (Murray J) which examined an ostensibly similar statutory provision in s. 7(12A) and (12B) of the Solicitors (Amendment) Act 1960. The Supreme Court overturned the decision of the then-President of the High Court (Irvine P, [2022] IEHC 152) which had held that the relevant time limit is absolute and does not permit of an extension. In so holding, Irvine P relied on many of the same authorities which were opened to and relied on by Barniville P in the High Court in this case. Consequently, much of the argument on the appeal to the Court of Appeal concerned the application of the principles set out in the judgment of Murray J in Kirwan to the circumstances of this case. The appellant relied on Kirwan to contend that the time limit contained in s. 70(1) of the 2011 Act is not absolute and can be extended by the High Court in accordance with O. 84(C), r. 2(5)(b) of the Rules of the Superior Courts. The respondent contended that the statutory scheme in issue in this case is very different to that in issue in Kirwan and, when the relevant provisions are construed in accordance with the principle set out in Kirwan, that it is clear the time limit is an absolute one which is not capable of extension.

Held by Butler J that she was satisfied, firstly, that Barniville P was correct in his interpretation of s. 70(1) of the 2011 Act albeit that the approach to the interpretation of such sections is informed by the decision of the Supreme Court in Kirwan. However, even when the Kirwan approach was factored into this case it did not change what is, in Butler J’s view, the correct interpretation of the section. Butler J was satisfied that the time limit created by s. 70(1) of the 2011 Act is absolute and does not permit of an extension. Secondly, even if Butler J was wrong in this and the court has jurisdiction to extend the time to bring an appeal under s. 70(1), she was satisfied that this jurisdiction should not be exercised in favour of the appellant on the facts of this case.

Butler J held that the appellant’s appeal should be dismissed and the order of the High Court affirmed.

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT of theMs. Justice Butlerdelivered on the 21 ^st day of October 2024

Introduction

1 . This appeal arises out of a decision made by the respondent (the PSRA) following an investigation into a complaint made against the appellant who was at the time a licenced property professional. The PSRA found that the appellant was guilty of improper conduct and imposed a major sanction on him, in this case a fine of €10,000. The particular question before the court is whether the appellant can seek to appeal against that decision outside of the 30-day time limit fixed by s. 70(1) of the Property Services (Regulation) Act, 2011 (the “2011 Act”) and, if so, whether time should be extended to permit the intended appeal to be brought.

2 . Both of those questions were decided against the appellant by the President of the High Court ( [2023] IEHC 419) on the 17 ^th July 2023. However, since the date of the High Court decision a seminal judgment has been delivered by the Supreme Court in the case of Kirwan v. O'Leary (Murray J. [2023] IESC 27) (“ Kirwan”) which examined an ostensibly similar statutory provision in s. 7(12A) and (12B) of the Solicitors (Amendment) Act, 1960. The Supreme Court overturned the decision of the then-President of the High Court (Irvine P. [2022] IEHC 152) which had held that the relevant time limit was absolute and did not permit of an extension. In so holding, Irvine P. relied on many of the same authorities which were opened to and relied on by Barniville P. in the High Court in this case. Consequently, much of the argument on this appeal concerned the application of the principles set out in the judgment of Murray J. in Kirwan to the circumstances of this case.

3 . The appellant relies on Kirwan to contend that the time limit contained in s. 70(1) of the 2011 Act is not absolute and can be extended by the High Court in accordance with O. 84(C), r.2(5)(b) of the Rules of the Superior Courts. The respondent on the other hand contends that the statutory scheme in issue here is very different to that in issue in Kirwan and, when the relevant provisions are construed in accordance with the principle set out in Kirwan, that it is clear the time limit is an absolute one which is not capable of extension.

4 . I have given some thought to the structure of this judgment because normally it would be appropriate for the court to decide whether it had jurisdiction to extend a statutory time limit before deciding on the facts whether the time limit should be extended. However, for reasons which will become apparent in the course of this judgment I have, exceptionally, decided to take the opposite approach in this case. In particular, I am concerned that the provisions the court is required to construe are ones which are capable of impacting on the entitlement of a property professional to continue to practice as such and, therefore, in a different case might impact on the constitutional right of a licenced person to earn a living. This is not the case here as the sanction imposed, although classified under the legislation as a major sanction, consisted only of a fine and, therefore, did not impact on the appellant's entitlement to continue to hold a licence and to practice as a property professional. As shall be seen, the extent to which constitutional rights were engaged in the exercise of a right to appeal was the subject of some disagreement between the majority of the Supreme Court in Kirwan and the dissenting judgment of Woulfe J. ( [2023] IESC 27). Therefore, in circumstances where some of the constitutional rights which might be affected by the interpretation given by the court to the relevant provisions are not engaged in this case, it seems prudent to decide what is, in my view, the more clear-cut issue first.

5 . Before addressing the legal issues, I propose to briefly outline the circumstances in which this appeal arose and the legislative provisions to which it is subject.

Factual Background

6 . The appellant is an auctioneer and, on the introduction of a licencing regime for property professionals, he became the holder of a licence under Part 3 of the Property Services (Regulation) Act, 2011 (the “2011 Act”). The appellant has in fact held two separate licences between November 2012 and December 2021 with an interval in 2016. He is not currently licenced, but that status is unconnected with the decision the subject of these proceedings. The PSRA is the statutory authority established under Part 2 of the 2011 Act and is responsible for the issuing of licences under Part 3 and the investigation of complaints against licence holders under Part 7 of that Act.

7 . In October 2019, a complaint was made to the PSRA by the liquidator of a company called Granja Limited alleging that the appellant had refused to return a booking deposit of €50,000 paid by Granja in 2014 in respect of the intended purchase of lands in Kilpedder, County Wicklow which purchase did not proceed. The appellant was acting as the agent for the vendors of the land whom I will refer to collectively as the “McDonagh brothers”. The PSRA appointed two investigators to examine this complaint. Originally the investigators were appointed on terms which referred to the second of the appellant's two licences which was the one held at the time the complaint was made, but those terms were subsequently extended to cover the first licence which was the one in force at the time the deposit was initially paid.

8 . The background to this complaint is extremely complex and the underlying transaction is one which has given rise to much litigation. In brief, the purchase of these lands by the McDonagh brothers in 2007 was facilitated by a substantial loan from their bank, Ulster Bank, which in turn had relied on the report of a property valuer as to the value of the lands provided as security for the loan. The timing of the purchase was inauspicious in light of the collapse of the property market in 2008 and the economic downturn which followed. The intended residential development of the lands did not materialise and the McDonagh brothers were unable to meet repayments on their loan. A company owned by one of the McDonagh brothers subsequently obtained planning...