Neutral Citation:  IEHC 554
THE HIGH COURT
[2013 No. 418 MCA]
THE PRIVATE RESIDENTIAL TENANCIES BOARD AND MYRTLE ROBERTS
JUDGMENT of Mr. Justice Keane delivered on the 6th November 2014
3. At the request of the appellant and in accordance with the Act, the matter was referred in the first instance to an adjudicator. After a hearing on the 18th July 2013, the adjudicator concluded that the Board has no jurisdiction to consider the appellant's application.
4. In accordance with his entitlement to do so under s. 100 of the Act, the appellant submitted an appeal against that decision to the Tribunal on the 21st August 2013. The Tribunal heard the appeal on the 3rd October 2014, at which hearing the appellant was represented by a solicitor. The Tribunal made its determination on the 6th October 2014, holding:
The jurisdiction on appeal
(4) The determination of the High Court on such an appeal in relation to the point of law concerned shall be final and conclusive."
6. In mounting the present appeal, the appellant, who is a litigant in person for the purpose of these proceedings, relied initially on a notice of motion, dated the 19th December 2013, in which the relief sought was "an order appealing the whole of the determination of [the Board] given on the 18th October 2013." That application was grounded on an affidavit sworn by the appellant on an unspecified date in December 2013, enumerating eight separate errors of law that he was then alleging had been made by the Tribunal in its determination of his case. In the same affidavit, the appellant also averred to various facts that he obviously considers would, if accepted, support his contention that the Board does have jurisdiction to entertain his application. The report of the Tribunal is exhibited to the appellant's affidavit.
7. However, in what the appellant has termed a "supplementary" notice of motion dated the 14th February 2014, grounded upon a supplemental affidavit that the appellant swore on the 12th February 2014, he now identifies the point (or points) of law that he wishes to raise on appeal in the following terms:
9. In its statement of opposition, the Board joins issue with the appellant in respect of each of the two points of law that he now identifies (and, perhaps for the avoidance of doubt, also in respect of the eight separate legal issues averred to in the appellant's original grounding affidavit). That statement of opposition is grounded on an affidavit of Dervla Quinn, sworn on the 21st February 2014. Ms Quinn was the Chairperson of the Tribunal the determination of which is under appeal. Ms Quinn has exhibited the following documents: the appellant's original application form for dispute resolution; the adjudicator's report on that application; the appellant's appeal form to the Tribunal from that decision; and a copy of the transcript of the hearing of that appeal before the Tribunal on the 3rd October 2013.
10. While a memorandum of appearance has been entered on her behalf, the landlord has taken only a limited part in this appeal.
The determination under appeal
12. Section 3, ss. 1 of the Act provides that it applies "to every dwelling, the subject of a tenancy." By way of derogation from that provision, s. 3, ss. 2(g) of the Act states as follows (in relevant part):
(g) a dwelling within which the landlord also resides"
14. The only guidance provided by the Act in respect of the meaning of the term "self contained residential unit" is that set out in s. 2, ss. 1 whereby it is defined to include "the form of accommodation commonly known as 'bedsit' accommodation."
15. In the penultimate section of its report, headed "Findings and Reasons", the Tribunal found as follows:
Finding: The agreement between the Landlord and the Tenant is not for the rent of a self contained unit within the meaning of the Act. The Landlord although accessing the Dwelling through a separate entrance had full access to and use of the entire of the Dwelling excluding only the Tenant's bedroom. Section 3(2)(g) of the Act states that the Act does not apply to a dwelling within which the landlord also resides.
The tenant had access to and the use of a kitchen and dining area but this use was not exclusive and was shared by the other tenant and in particular by the Landlord who carried out the cleaning of all areas herself excluding only the Tenant's bedroom. The Landlord made use of the dining room for her B&B business and the sitting room for carrying out her work. The Tenant had a key to his bedroom which was personal to him but all other areas of the Dwelling are shared with the Landlord, another tenant and guests of the B&B business. The Tribunal notes that the Dwelling is a large building and separate entrances are used by the Landlord and the Tenant but notwithstanding this the Landlord does have access to and in fact used all areas of the Dwelling excluding only the Tenant's bedroom. The decision of the Tribunal in Zang and Holohan TR168/2011, although informative on the question of what constitutes a self-contained unit, concerns a letting where the landlord was not ordinarily resident in the Dwelling. In this matter the Tribunal is satisfied that the Landlord is in fact also resident in the Dwelling which brings the matter outside of the jurisdiction of the PRTB pursuant to section 3(2)(g)."
16. In the case of Ashford Castle v. SIPTU  4 IR 70, the High Court had to consider the nature and scope of its jurisdiction in an appeal on a point of law from an expert tribunal. Clarke J. began his conspectus of the authorities in that regard by citing the following passage from the judgment of Hamilton C.J. in Henry Denny & Sons (Ireland) Ltd v. Minister for Social Welfare  1 IR 34 (at pp. 37-8):
(a) it cannot set aside findings of primary fact unless there is no evidence to support such findings;
(b) it ought not to set aside inferences drawn form such facts unless such inferences were ones which no reasonable decision making body could draw;
(c) it can however, reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect; and finally;
(d) if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that is also a ground for setting aside the resulting decision: see for example Mara v. Hummingbird Ltd.  2 I.L.R.M. 421, Henry Denny & Sons (Ireland) Ltd v. Minister for Social Welfare  1 IR 34 and Premier Periclase v. Commissioner of Valuation (Unreported, High Court, Kelly J., 24th June 1999)."
The appropriate evidence to consider
22. That observation leads, in turn, to a consideration of the question whether it is appropriate to receive any further or additional evidence on that jurisdictional issue in the context of the present appeal. The question arises because the appellant deposes to the merits of that issue at some considerable length in both the first affidavit and, more particularly, the second affidavit that he swore for the purpose of the present appeal. While many of the relevant averments might more properly be characterised as argument than evidence (and would, of course, be inappropriate as such), at least some of them are plainly intended to be the latter. One averment in particular, in the appellant's second affidavit, states that "the Appellant Deponent hopes to be able to procure an accurate plan of the premises from Wicklow County Council Planning Department in the near future and begs leave to submit it when he can." The appellant did indeed produce such a plan to the Court in the course of the hearing.
23. In the case of Ashford Castle Ltd v. SIPTU to which I have already referred, one of the issues that Clarke J. had to address was an attempt by the appellant in that case to exhibit a chart or table that it was claimed was derived from materials that had had been before the Labour Court when it had made the decision then under appeal on a point of law. The appellant in that case wished to argue that the exhibit concerned helped to demonstrate that there was no evidence to support a particular component of the Labour Court's decision. Clarke J. recorded that, in the course of the hearing of the appeal before the High Court, it became apparent that the relevant chart or table contained significantly misleading information that did not, in fact, accurately reflect the material that had been before the Labour Court.
24. In commenting on that aspect of the appeal, Clarke J. stated (at p. 90 of the report):
26. I share the view expressed by Clarke J. that it is not appropriate for affidavits filed either in support of or against appeals of this type to include any new or additional materials, whether by way of argument or background, and I do not propose to consider any such material for the purpose of the present appeal.
The first point of law raised
28. Insofar as I can ascertain, this argument derives from, or is inextricably bound up with, the assertion that the Tribunal either misinterpreted or misapplied its own earlier decision in the case of Zhang v. Holohan (17th January 2012, Reference No. TR168/2011/DR92/2011). In that case, the patties were in agreement concerning the following essential facts: the property at issue was a two-bedroom apartment; the tenant had exclusive occupation of one bedroom and non-exclusive occupation of the common areas (in that she shared them with the other tenant); and that the only period during which the landlord had occupied the premises was for a period of three nights after the parties fell into dispute.
29. While the landlord in that case gave evidence that the apartment had previously been his home and while it was agreed that the landlord had resided in the apartment for one period of three nights after the parties fell into dispute, the Tribunal noted that the landlord did not press the argument that the apartment comprised a dwelling within which the landlord was also residing, thereby taking the dwelling outside the scope of the Act by operation of s. 3, ss. 2(g). Nevertheless, in light of the landlord's claim that all of his possessions were in the apartment, the Tribunal did go on to briefly address that point. In doing so, it recorded its finding, as a matter of fact, that the landlord stayed in the dwelling for only three nights during the 16 month duration of the tenancy at issue. By reference to that finding, the Tribunal expressly rejected the landlord's claim that he also resided in the dwelling and that, in consequence, the tenant's claim fell outside the scope of the Act.
30. The primary jurisdictional issue considered by the Tribunal in Zhang v Holahan was the landlord's argument that the property concerned fell outside the scope of the Act because it was not a "dwelling", as that term is defined under s. 4, ss. 1 of the Act, on the basis that it was not "a self-contained residential unit".
31. In its decision in Zhang v. Holohan, the Tribunal held itself bound to give the term "self-contained residential unit" its ordinary and colloquial meaning, on the authority of the decision of the Supreme Court in Inspector of Taxes v Kiernan  IR 117. In doing so, it concluded:
Consequently, a "self-contained' residential unit must mean a unit which enables the person residing there to have all the essentials for living i.e. for sleeping, washing, cooking, toiletry and relaxing."
33. Insofar as it may be argued that a consideration of the extent to which the appellant's accommodation comprises a "self-contained residential unit" is a necessary element in considering the wider question of whether the landlord resides in that accommodation with the appellant, it is important to note that the facts of the present case (as found by the Tribunal) were quite different from the facts found or agreed in Zhang v. Holohan. At paragraph 15 of this judgment, I have already set out the Tribunals findings of fact in this case, and at paragraphs 28 and 29 I have described the much more straightforward facts that were agreed between the parties or found by the Tribunal in Zhang v. Holohan.
34. Even if l were persuaded that I should take a different view of the facts than the one reached by the Tribunal in this case (and I am not so persuaded), it is clear, by reference to the principles already considered, that it would be entirely wrong to do so.
35. That is because, as Gilligan J. put it in ESB v. Minister for Social Community and Family Affairs, supra, the Court's own view of the decision arrived at is irrelevant. The court is not retrying the issue but merely considering the primary findings of fact and as to whether there was a basis for such findings and as to whether it was open to the Tribunal to arrive at any inferences drawn and, adopting a reasonable and coherent view, to arrive at its ultimate decision. I am satisfied that there was a basis in evidence for the Tribunal's primary findings of fact; that it was open to the Tribunal to draw an inference from those facts that the notice party was residing within the same dwelling as the appellant for the purpose of s. 3, ss. 2(g) of the Act; and that it was open to the Tribunal, adopting a reasonable and coherent view, to arrive at its ultimate decision that it did not have jurisdiction under the Act to consider the appellant's appeal.
36. Finally on this point, it is necessary to add that I have been unable to identify any error of law in the approach adopted by the Tribunal in this case. More particularly, I am satisfied that the Tribunal did not err in law in its interpretation (or application) of the provisions of s. 3, ss. 2(g) of the Act.
The second point
38. Section 170, ss. (1)(c) of the Act requires various persons associated with the Board, including Tribunal members, to take no part in the consideration of a matter if the person concerned has a pecuniary interest or other beneficial interest in, or material to, that matter. Accordingly, it would appear that the appellant is asserting that the Chairperson of the Tribunal that heard his appeal had a pecuniary interest or other beneficial interest in, or material to, that appeal, such that she should have recused herself from hearing it.
39. The basis for this assertion, in so far as there is one, is set out in a single paragraph of the appellant's first affidavit, in which he avers:
42. As regards, the appellant's allegation of bias on the part of the Chairperson and, by extension, the Tribunal in the consideration of his appeal, I must apply the accepted test in that regard, being that set out by the Supreme Court in Bula Ltd v Tara Mines Ltd (No. 6)  4 I.R. 412. It is whether the relevant facts would give rise to a reasonable apprehension of bias in a reasonable person. I am quite satisfied that neither the fact that the Chairperson lives in the same locality as the parties, nor the fact that a sister in law of one of the parties is a neighbour of the Chairperson, nor the fact that the Chairperson has an interest in equestrian pursuits in common with any relation of any of the parties, nor the fact that the Chairperson has previously encountered any of the parties (if that has occurred) is sufficient to give rise to a reasonable apprehension of bias in a reasonable person, whether those facts are considered individually or in combination. I conclude, therefore, that the appellant's argument must fail on this point also.
43. For the sake of completeness I should add that it is evident from the transcript of the hearing before the Tribunal that no issue of bias (or breach of s. 170, ss. 1(c) of the Act) was raised on the appellant's behalf by the solicitor who represented the appellant at that hearing. Were it necessary to do so, I would also be disposed to find that the appellant is not entitled to raise the issue of bias for the purpose of the present appeal, in circumstances where he failed to raise it before the Tribunal and there is no suggestion that the facts upon which he now seeks to rely (such as they are) were not within his knowledge at that time. That finding is based upon the doctrine of waiver, the rationale behind which was explained in the following way by Henchy J. in Corrigan v. Irish Land Commission  I.R. 317 (at 326):