Teniola v Brady & or

JurisdictionIreland
JudgeMs. Justice Baker
Judgment Date11 December 2014
Neutral Citation[2014] IEHC 604
CourtHigh Court
Date11 December 2014
Teniola v Brady & Ors
JUDICIAL REVIEW

BETWEEN

JASMINE TENIOLA
APPLICANT

AND

FRANK BRADY, PRIVATE RESIDENTIAL TENANCIES BOARD, IRELAND,

AND

THE ATTORNEY GENERAL
RESPONDENTS

AND

COLLETTE CONNOLLY

AND

JACINTA HESLIN
NOTICE PARTIES

[2014] IEHC 604

[No. 206 J.R./2014]

THE HIGH COURT

Landlord and Tenant – Rent Arrears – Private Residential Tenancies Act 2004 – Order of Certiorari – Declaratory Relief – Judicial Review – Fair Procedures – Relief – Breach – Practice and Procedures

Facts: In the case under consideration the applicant had been a tenant of the notice parties (landlords), who had made an application for dispute resolution pursuant to s. 78 of the Private Residential Tenancies Act 2004 to the Private Residential Tenancies Board. Their complaints were that the applicant was in arrears of rent, and was over-holding following the service of a notice of termination arising from such arrears. This judicial review related to the conduct of the hearing on the 6th March, 2014 before the first respondent. The applicant obtained leave to apply for judicial review in the form of an order of certiorari quashing the order of the first respondent, and for declaratory relief that certain of the orders made by him, in particular the order refusing to adjourn the adjudication hearing, were ultra vires and reached in breach of fair procedures. The applicant also claimed that she was denied the opportunity of presenting her case fully at the adjudication hearing because some documentation which she had gathered for that purpose was in the possession of her solicitor who was unable to attend on that day.

Held by Justice Baker in light of the submissions presented and the available evidence, that the applicant was not entitled to seek a judicial review of the decision of the adjudicator in this case. It was determined that she had failed to establish any basis upon which such an appeal might not have dealt fully with her stated defence to the over-holding proceedings and/or her stated complaint that she was refused an adjournment and required to conduct the hearing without the presence of her chosen solicitor. It was reasoned that the complaints made were to some extent complaints of absence of jurisdiction or fairness, classic judicial review complaints, but each of them were capable of being adequately dealt with at an oral hearing before the Tribunal in the course of a statutory appeal under s. 100, and the applicant had not established to the Courts satisfaction that any of her complaints were of such a fundamental nature that they could not have been addressed and if necessary rectified on appeal. It was further determined that there was no evidence of bias. Consequently, the relief sought failed.

RESIDENTIAL TENANCIES ACT 2004 S78

CANTY v ATTORNEY GENERAL & ORS UNREP SUPREME 19.7.2011 2011/8/1747 2011 IESC 27

RESIDENTIAL TENANCIES ACT 2004 CHAP 3

RESIDENTIAL TENANCIES ACT 2004 PART VI

RESIDENTIAL TENANCIES ACT 2004 S75(3)

RESIDENTIAL TENANCIES ACT 2004 S164(2)

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORPORATION 1984 IR 381 1982 ILRM 590

O'CONNOR v PRIVATE RESIDENTIAL TENANCIES BOARD UNREP HEDIGAN 25.6.2008 2008/48/10439 2008 IEHC 205

EMI RECORDS (IRL) LTD & ORS v DATA PROTECTION CMSR & EIRCOM LTD 2014 1 ILRM 225 2013/18/5315 2013 IESC 34

KOCZAN v FINANCIAL SERVICES OMBUDSMAN UNREP HOGAN 1.11.2010 2010/26/6385 2010 IEHC 407

RESIDENTIAL TENANCIES ACT 2004 S100

RESIDENTIAL TENANCIES ACT 2004 S99(4)

RESIDENTIAL TENANCIES ACT 2004 S21

RESIDENTIAL TENANCIES ACT 2004 S104(2)

RESIDENTIAL TENANCIES ACT 2004 S104(6)

RESIDENTIAL TENANCIES ACT 2004 S94

RESIDENTIAL TENANCIES ACT 2004 S104(7)

RESIDENTIAL TENANCIES ACT 2004 S97

RESIDENTIAL TENANCIES ACT 2004 S97(5)

RESIDENTIAL TENANCIES ACT 2004 S12

RESIDENTIAL TENANCIES ACT 2004 S21(3)

RESIDENTIAL TENANCIES ACT 2004 S126

USK & DISTRICT RESIDENTS ASSOCIATION LTD v BORD PLEANALA & ORS 2010 4 IR 113 2010 2 ILRM 235 2009/56/14186 2009 IEHC 346

1

1. The applicant was at all material times the tenant of a residential dwelling at 24 Hampton Green, Navan Road in the City of Dublin and the notice parties were her landlords. The landlords made application for dispute resolution pursuant to s. 78 of the Private Residential Tenancies Act 2004 ("the Act of 2004") to the Private Residential Tenancies Board (the "Board") and their complaints were that the applicant was in arrears of rent, and was overholding following the service of a notice of termination arising from such arrears. This judicial review relates to the conduct of the hearing on the 6 th March, 2014 before the first respondent, Frank Brady, the adjudicator. The two landlords and the applicant herself attended the hearing, and neither side to the dispute had legal representation at the hearing.

2

2. The applicant obtained leave to apply for judicial review in the form of an order of certiorari quashing the order of the first respondent made on the 6 th March, 2014, and for declaratory relief that certain of the orders made by him, in particular the order refusing to adjourn the adjudication hearing, were ultra vires and reached in breach of fair procedures. The applicant also claims that she was denied the opportunity of presenting her case fully at the adjudication hearing because in particular some documentation which she had gathered for that purpose was in the possession of her solicitor who was unable to attend on that day.

The statutory framework
3

3. The Act of 2004 was established with the aim inter alia of facilitating the speedy and cost effective resolution of disputes between landlords and tenants of residential dwellings. Denham J. (as she then was) in Canty v Attorney General & Ors [2011] I.E.S.C 23 addressed the object of the Act of 2004, and quoted with approval the judgment of McKechnie J. in the High Court delivered ex tempore on 17 thDecember, 2007 as follows:

"the legislature, by virtue of the 2004 Act, established a framework by which disputes between landlords and tenants could be resolved, with the intention of that being done informally, expeditiously and as cheaply as possible. Bodies with particular expertise were set up within this framework to discharge the functions assigned to them."

4

4. The Board established by the legislation has the exclusive jurisdiction to determine disputes between landlords and tenants of residential tenancies. The applicant held the subject premises under a fixed term letting described in the letting agreement as a "minimum of 12 months" from the 1 st March, 2013, at a monthly rent. The circumstances in which a tenancy governed by the legislation may be terminated are set out in Chapter 3 of the Act and include inter alia the relevant ground which is alleged to have arisen in this case, namely where the landlord serves a notice of termination grounded on an alleged failure of the tenant to pay the agreed rent.

5

5. Part 6 of the Act created a machinery of dispute resolution in respect of "disagreements", defined in s. 75(3) as including any issue between the parties with regard to the compliance by either party with his or her obligations as landlord or tenant under the tenancy, and any matter with regard to the legal relations between the parties, including whether the tenancy has been validly terminated.

6

6. The landlords sought to avail of the adjudication process provided under the Act and Mr Brady was appointed adjudicator pursuant to s. 164(2). Adjudication is the first part of the dispute resolution process, and is intended to be a speedy and cost effective means of resolution, the second stage involving a more formal type of hearing before the Tribunal itself.

Failure to exhaust remedies
7

7. Counsel for the respondent makes a preliminary objection that the applicant has failed to exhaust all remedies available to her and that in the circumstances judicial review does not lie. The applicant argues, correctly in my view, that there is no absolute rule of law that mandates an aggrieved party in all cases to appeal in lieu of making application for judicial review. The case law is well established. As O'Higgins C.J. observed in State (Abbenglen Properties Ltd) v. Dublin Corporation [1984] I.R. 381 the court may grant judicial review even in circumstances when the appellate mechanism has not been exhausted if that is necessary in the interests of justice. The central proposition was stated by him as follows:-

"The court ought to take into account all the circumstances of the case, including the purpose for which certiorari has been sought, the adequacy of the alterative remedy and, of course, the conduct of the applicant. If the decision impugned is made without jurisdiction or in breach of natural justice then, normally, the existence of a right of appeal or of a failure to avail of such, should be immaterial. Again, if an appeal can only deal with the merits and not with the question of the jurisdiction involved, the existence of such ought not to be a ground for refusing relief."

8

8. The test so stated by the Supreme Court is whether the appeal is adequate to deal with the complaint. Hedigan J. in O'Connor v. PRTB [2008] I.E.H.C. 205 addressed this question with regard to the specific statutory appeals mechanism provided under the Act of 2004, and held that the entirety of the case made by the applicant could have been made by way of an appeal under the statutory scheme, what he described as "a procedure specifically designed for that purpose for the legislature and, in this particular case, capable of dealing with each and every one of his complaints".

9

9. The Supreme Court recently considered the appropriateness of judicial review in the case of EMI Records (Ireland Ltd) and Others v. Data Protection Commissioner and Another [2014] 1 I.L.R.M. 225("EMI"). The...

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