Property Services Regulatory Authority v Dooley

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 17 July 2023
• Neutral Citation: [2023] IEHC 419
• Court: High Court
• Docket Number: [2023 No. 93 M.C.A.]

In the Matter of Section 71 of the Property Services (Regulation) Act 2011

And in the Matter of a Licensee and on the Application of the Property Services Regulatory Authority

Between

Property Services Regulatory Authority

Applicant

and

Gabriel Dooley

Respondent

[2023] IEHC 419

[2023 No. 93 M.C.A.]

THE HIGH COURT

NO REDACTION NEEDED

JUDGMENT of Mr. Justice David Barniville, President of the High Court, delivered on the 17 ^th July, 2023

INDEX

1. Introduction	2
2. Relevant Factual Background	2
3. The Authority's Confirmation Application and Mr. Dooley's Application for Extension of Time	4
4. Summary of Decision	4
5. Relevant Provisions of 2011 Act and RSC	5
(a) O.84C	5
(b) The 2011 Act	6
6. Mr. Dooley's Position	8
7. The Authority's Position	13
8. Analysis and Decision	16
9. Conclusion	24

1. Introduction

1 . This is my judgment on an application by the respondent, Mr. Dooley, for an order pursuant to O. 84C, r. 2(5)(b) of the Rules of the Superior Courts extending the time for Mr. Dooley to issue and file a notice of appeal from a decision made by the applicant, the Property Services Regulatory Authority (the “Authority”), in relation to Mr. Dooley on 28 ^th October, 2022.

2. Relevant Factual Background

2 . Briefly stated, the circumstances in which Mr. Dooley has brought this application are as follows. Mr. Dooley was registered on the Property Services Register maintained by the Authority under the Property Services (Regulation) Act 2011 (the “2011 Act”). Mr. Dooley was the holder of two licenses, the last of which expired in December 2021.

3 . The Authority received a complaint against Mr. Dooley under the 2011 Act in 2019. Inspectors were appointed and they prepared an investigation report which was submitted to the Authority in February 2022. The inspectors reported that Mr. Dooley had engaged in improper conduct in two respects within the meaning of that term in subparagraphs (a) and (b) of the meaning of that term in s. 2(1) of the 2011 Act.

4 . On 5 ^th April, 2022, the Authority decided that “improper conduct” within the meaning of that term in subparagraph (b) of s. 2(1) had occurred. The Authority accepted the findings in the investigation report that Mr. Dooley withdrew money between 19 June 2014 and 20 April 2015 from a sum held in his client account as a booking deposit for the sale of land before contracts for the sale of the land were signed or finalised and further, that, despite Mr. Dooley stating that the vendors had consented to his keeping the deposit as payment for his fees, Mr. Dooley had failed to provide any documentary evidence to support that claim, despite having been formally required to do so by the inspectors.

5 . The Authority was not, however, satisfied that “improper conduct” within the meaning of subparagraph (a) of s. 2(1) of the 2011 Act had occurred. The Authority was not satisfied that Mr. Dooley's actions in respect of the giving of a particular undertaking and the contents of that undertaking rendered him no longer a fit and proper person to provide property services. The Authority, therefore, made one finding of improper conduct against Mr. Dooley.

6 . Mr. Dooley was informed of the Authority's decision by letter dated 22 April 2022. He was informed that the Authority would convene a meeting on 9 May 2022 to consider the sanction to be imposed in respect of the finding of improper conduct pursuant to s. 68(4)(a) of the 2011 Act. Mr. Dooley was invited to attend that meeting for the purpose of making submissions in relation to sanction. He was also invited to make written submissions in relation to sanction. That meeting was postponed on a number of occasions and was ultimately rescheduled for 3 October 2022.

7 . In the meantime, Mr. Dooley made a number of written submissions to the Authority setting out matters which he wished the Authority to take into account at the meeting on 3 October 2022. It was clear from those submissions that Mr. Dooley did not agree with the Authority's decision of 11 April 2022. Mr. Dooley attended the meeting of the Authority on 3 October 2022 and made submissions on his own behalf. Again, it was clear that Mr. Dooley did not accept the Authority's decision that he had engaged in “improper conduct” and contended that if a sanction was to be imposed it should be a “minor sanction” under the 2011 Act. Mr. Dooley made a number of further submissions to the Authority following the meeting on 3 October 2022, as a result of which the Authority reconvened in private session on 20 October 2022 before reaching its decision on sanction.

8 . The Authority made its decision on sanction on 25 October 2022. It was satisfied that, for the reasons set out in its decision, it was appropriate and proportionate that a major sanction be imposed on Mr. Dooley. Accordingly, the Authority directed Mr. Dooley to pay the sum of €10,000 to the Authority by way of financial penalty for the “improper conduct” committed by him and required that that payment be made within 90 days of the decision. Mr. Dooley was informed of the Authority's sanction decision by letter dated 28 October 2022. That letter was sent by recorded delivery and by email to Mr. Dooley. It informed him of the sanction imposed by the Authority and the reasons for that decision. At the conclusion of the letter under a bold heading “ Right of Appeal”, the letter stated:

“In accordance with section 70 of the Act you have 30 days from the date that you received this notice to appeal the decision of the Authority to impose a major sanction on you, to the High Court.”

9 . The letter then quoted in full the provisions of s. 70(1) of the 2011 Act which provides that the licensee who is the subject of a decision under s. 68(4)(a) of the 2011 Act by the Authority to impose a major sanction on the licensee:

“may, not later than 30 days from the date the licensee received the notice under section 68(7) of the decision, appeal to the High Court against the decision”.

10 . Mr. Dooley did not appeal to the High Court against the sanction decision within 30 days from the date on which he received notice of the decision under s. 68(7) of the 2011 Act. He has explained why that was so in two affidavits which he has sworn in the proceedings. In essence, he maintained that he was mistaken in not appealing within that period and stated that he was “not aware of the cut off point for an application to seek an appeal”. He stated that he was “expecting a formal notice” from the Authority.

3. The Authority's Confirmation Application and Mr. Dooley's Application for Extension of Time

11 . The Authority issued an originating notice of motion on 28 March 2023, returnable for 24 April 2023, seeking an order under s. 71(2) of the 2011 Act confirming the Authority's sanction decision made on 28 October 2022. On the return date of that motion on 24 April 2023, Mr. Dooley sought and obtained an adjournment to 15 May 2023 to file a replying affidavit in response to the Authority's confirmation application. Mr. Dooley filed his replying affidavit on 10 May 2023. In that affidavit, Mr. Dooley sought to appeal to the High Court from the Authority's sanction decision. On 15 May 2023 I informed Mr. Dooley, who at that time was still representing himself, that if he wished to appeal he would have to bring a motion seeking an extension of time to appeal and that the court would have to consider, in the context of any such motion, whether it was open to the court to extend the time in light of s. 70(1) of the 2011 Act, which provides that such an appeal had to be brought “not later than 30 days” from the date Mr. Dooley had received notice of the Authority's sanction decision. I gave directions for the bringing of that motion to be returnable to 19 June 2023. Mr. Dooley was unable to comply with those directions as he was seeking legal representation. I gave further directions for the bringing of that motion on 19 June 2023, and it was ultimately issued on 28 June 2023, and was heard earlier this week on 10 July 2023. Mr. Dooley was by that stage represented by solicitors and counsel.

12 . I received written submissions and heard oral submissions from counsel for Mr. Dooley and from counsel for the Authority on 10 July 2023. It was submitted on behalf of Mr. Dooley that s. 70(1) of the 2011 Act did not preclude the court from granting an extension of time for Mr. Dooley to appeal and that such extension should be granted under O. 84C, r. 2(5) RSC. The Authority opposed Mr. Dooley's application and submitted that the court did not have jurisdiction to extend time for Mr. Dooley to appeal from the sanction decision and that, in the alternative, even if it did, the court should nonetheless refuse to grant such an extension.

13 . Having considered the written submissions and having heard from counsel at the hearing of the application on 10 July 2023, I indicated I would give my judgment shortly on the application. I am now in a position to do so.

4. Summary of Decision

14 . Having considered the applicable statutory provisions and the relevant case law as well as the helpful submissions from counsel for Mr. Dooley and counsel for the Authority, I have concluded that the proper interpretation of s. 70(1) of the 2011 Act is that if a licensee who is the subject of a decision imposing a major sanction upon him wishes to appeal to the High Court from that decision, that appeal must be brought “not later than 30 days from receipt of notice of the decision”. There is no provision for the court to grant an extension of time in which to bring such an appeal. The section, correctly interpreted in accordance with the relevant principles of statutory interpretation recently outlined by the Supreme Court, does not permit the court to grant an extension of...