THE SUPREME COURT
[Appeal No: 88/2011]
Judgment of the Court delivered the 28th April, 2015 by Mr. Justice Clarke.
1.2 In order to better understand the precise issues which arise on these appeals it is appropriate to start by setting out the procedural history of this case insofar as it is relevant to the issues which now arise.
2. Procedural History
2.2 The order of Peart J. further required that an originating notice of motion be brought returnable for the 26th January, 2011 and also provided for service of that motion together with copies of Mr. Kavanagh's statement of grounds and verifying affidavit on the Chief State Solicitor "on behalf of the Minister for Social Protection" by the 10th January, 2011.
2.3 It is important to emphasise, therefore, that the scope of these judicial review proceedings are quite narrow. The only decision in respect of which leave to challenge has been given is the decision, contained in the letters referred to in the order, to refuse an oral hearing. The only grounds on which leave was given to challenge that decision was, in substance, on the basis that it is said to be premature to make a decision on whether an oral hearing is or is not required until the grounds of appeal have been submitted in writing by the applicant.
2.4 The motion seeking judicial review was served and came before the Court, as had been required by the order of Peart J., on the 26th January, 2011. The judge dealing with the judicial review motions list on that day was Kearns P. In passing, because some of the documents filed by Mr. Kavanagh on these appeals make serious allegations arising out of the identity of judges who have heard various applications relevant to his case, it is important to emphasise that s.10(3) of the Courts (Supplemental Provisions) Act, 1961 confers on the President of the High Court the function "to arrange the distribution and allocation of the business of the High Court". It is, thus, the lawful function of the President of the High Court to decide what judge will attend to what business of the Court and on what day. The organisation of the listing of cases and the decision as to what judge will hear such cases is a jurisdiction which has been conferred by statute on the President.
2.5 In any event, the motion came before the President on the 26the January, 2011. It would appear that counsel for the respondent indicated that he needed time to prepare opposition papers. While there is no written order to that effect, it appears to be accepted both by Mr. Kavanagh and by counsel who appeared on behalf of the respondent on the occasion in question, that Kearns P. indicated that he would extend time for the filing of the opposition papers and also adjourned the motion for four weeks until the 23rd February. It is also clear that Mr. Kavanagh did not consent to that course of action. The Court will return to some issues raised by Mr. Kavanagh in respect of what happened on that occasion in due course. In any event, the matter came before Hedigan J. on the 23rd February being the adjourned date. On that occasion counsel indicated that, while an affidavit verifying a statement of opposition had been sworn, it had not been filed. On that basis Hedigan J. ordered that:-
(ii) That the respondent do have four weeks file and serve a replying affidavit"
2.7 Thereafter Mr. Kavanagh took the view that the judicial review proceedings either should not or, perhaps, could not progress in the High Court. On the view which he took of the law the failure of the respondent to file opposition papers in time meant that he had, in substance, won his case by default. In addition, he took the view that because the matter was the subject of an appeal to this Court it could not progress in the High Court. These are issues to which it will be necessary to return.
2.8 However, in August of the same year Mr. Kavanagh did bring an application seeking injunctions "stopping the social security office at King's Inn Street from preventing the applicant signing on in the usual fashion and from having ended his monies" and also "that the status quo be maintained while this case stands in the offing". It would seem that, Mr. Kavanagh applied ex parte to Hedigan J. on the 25th August, 2011 and was given leave to issue a notice of motion returnable for Monday 29th August. It would also seem that on Friday the 26th August, the Chief State Solicitor's office was served with a copy of the order of Hedigan J. but no other documents. When the motion came before the Court on Monday the 29th August, counsel for the respondent appeared for the purposes of indicating that the respondent had not been served with any documents other than the order giving leave. On that basis Hogan J. put the matter to Wednesday the 31st August when it came on for hearing before Charleton J.
2.9 It is again important to emphasise, having regard to some of the comments made in the documents filed before this Court by Mr. Kavanagh, that there was nothing at all unusual in this matter appearing before different judges during the month of August. As noted earlier, it is for the President of the High Court to determine how the business of the High Court is to be distributed. During vacation times, such as August, a duty judge or judges are allocated to hear all business of the High Court (or business of a particular type) on certain specified days. There is nothing, therefore, at all unusual in an ex parte application being made before one judge who decides to give leave to bring a motion on notice in circumstances where that motion will be listed for hearing before another judge who has been assigned to hear such motions on the return day. If, as happened here, there is good reason to put the motion back (because the documents had not been served on the respondent) then there is again every reason to believe that the case may well be heard by a different judge again being the judge assigned to be duty judge on the adjournment date. All of the above occurred, in the circumstances of this case, in accordance with normal practice and in accordance with the proper directions of the President of the High Court as to the distribution of the business of that court.
2.10 Charleton J. refused Mr. Kavanagh's application for an injunction. The second appeal before this Court (no. 370/2011) is against that refusal.
2.11 The Court will shortly turn to the issues which arise on the respective appeals. However, before so doing it is, in the Court's view, appropriate to note some background facts which, while not directly relevant to these appeals, are of some importance in appreciating the true nature of the issues which arise.
3 Background Facts
3.2 Furthermore, Mr. Kavanagh initiated proceedings in the year 2012 seeking wide ranging reliefs against the President and the Government of Ireland, regarding the constitutional amendment relating to the Fiscal Compact Treaty. In the course of his submissions on these appeals he indicated that he came back from England to “defend the Constitution”. Regrettably, when asked about his previous employment history, Mr. Kavanagh was not prepared to disclose any information as to where, when and in what circumstances he had been in employment previously. This is, presumably, a matter within the knowledge of the respondents to the appeal.
The Extension of Time
3.4 It is also of some relevance to note that Rule 8 of the same order provides that the time for delivering any document "may be enlarged by consent in writing, without application to the Court".
3.5 A number of matters are, therefore, absolutely clear. The first is that the Court is given a wide power to enlarge the time for serving any document including, as here, a notice of opposition. Secondly, there is no mention in Rule 7 of any requirement that the consent of the applicant be forthcoming before such an enlargement can be ordered. Indeed it is in that context the Rule 8 is of some importance for it is clear that, in a case where the applicant consents, time may be extended for the service of a notice of opposition without the need of a court order where the relevant consent is in writing. The fact, therefore, that Mr. Kavanagh did not consent to any extension of time does not affect the entitlement of the Court to nonetheless order an extension of time if the Court considers it appropriate in all the circumstances of the case.
3.6 Furthermore, it is absolutely clear from the wording of Rule 7 that an extension of time can be given even after the original time limit has expired. Finally, it is clear that the power of the Court to enlarge time extends to enlarging a time which is "fixed by any order enlarging time". Thus it is absolutely clear that the fact that time has been enlarged once does not operate as a barrier to a second or subsequent enlargement of time. The wording of the rule is absolutely clear and there can be no room for doubt about what it means. A court can extend time for any action required to be taken by the rules, can do so even if the time originally fixed has expired and can do so a second time even if there has already been one extension.
3.7 It should, of course, be noted that the fact that a court has a jurisdiction to extend time does not mean that the Court must extend time in all cases. The question of the extent of leeway which should be given to any party which is in default of complying with time limits set out in the rules of court is a matter to be considered on the merits in all the circumstances of the individual case. But there is a significant difference between the question of whether the Court has a power to extend time at all and the question of whether any such power as might exist was properly exercised in all the circumstances of the case in question.
3.8 Subject to one point to which I will shortly turn, Mr. Kavanagh, despite being asked by a number of members of the Court on a number of separate occasions, failed completely to provide any explanation as to how it might be said that O.122, r.7 did not apply to his case and did not permit an extension of time to be granted by the Court notwithstanding his failure to consent and notwithstanding that the original time for filing opposition papers had expired.
3.9 Before returning to the argument which was relied on by Mr. Kavanagh, it is also important to explain the procedure required by the rules in relation to judicial review applications. The merits of a judicial review application are, under the rules, to be determined on the hearing of an originating notice of motion unless the Court directs that the application for judicial review be brought by plenary summons. As Peart J. made no such later direction in this case, the question of judicial review being determined by plenary hearing does not arise.
3.10 However, it is important to emphasise that there is nothing in the rules which specifies that an applicant is automatically entitled to an order in judicial review proceedings even if there is no opposition. A judge hearing a motion for judicial review after leave has been granted is required to be satisfied that it is appropriate to make the order concerned irrespective of whether or not there is any opposition. Doubtless it may make the task of persuading the judge of the appropriateness of making an order much easier if there is no opposition. But that does not take away from the fact that there must be at least a hearing at which the judge considering the motion decides whether judicial review orders should be made. It is implicit in much of the argument put forward by Mr. Kavanagh that, if there had been no opposition papers filed, or properly filed, by the respondent, he must be taken to have won his case. That is simply not correct. The absence of any proper opposition papers being filed by the respondent would simply have meant that his application for judicial review would have gone ahead in the absence of the respondent but he would, nonetheless, have to have persuaded the judge hearing the application of the merits of his case.
3.11 It must be recalled that, in granting leave, Peart J. did not decide that Mr. Kavanagh had a good case but rather decided that Mr. Kavanagh had established, by reference to a very low threshold, that he had an arguable case. Even in the absence of opposition it would be necessary for the judge hearing the motion to be satisfied that Mr. Kavanagh actually had a good case. No such hearing ever took place and it, therefore, follows that there can be no basis for Mr. Kavanagh's suggestion that he has, in some way, obtained a form of default order by virtue of the absence of opposition. There is no such thing as a default order in judicial review.
3.12 I then turn to the point actually made by Mr. Kavanagh. He complains that the initial order of Kearns P. was what he described as a "ghost order" because it was never drawn up in writing. He says that this deprived him of the opportunity of appealing against the order. It is important to start by emphasising that an order made orally by a judge is an order of the Court. It does not require to be in writing to be valid and binding.
3.13 This much is clear from O.115 of the Rules of the Superior Courts which provides that an order "when drawn up, shall be dated the day of the week, month and year on which the same was made, unless such Court shall otherwise direct, and shall take effect accordingly. Every such order shall be passed and perfected with all convenient speed".
3.14 It is clear, therefore, that the rules speak of the order by reference to the order made in court by a judge rather than the document by which that order is "drawn up" or "perfected". The written document is simply a means of recording, in a very formal way, what the court order actually said. The court order is what the judge says in court. Indeed there are, in that context, from time to time, applications made by parties to court (sometimes successfully) to suggest that the written order as drawn up does not accurately reflect what the judge said in court and inviting the judge to direct that the written order be changed in some material respect. Such applications do not involve a party inviting a judge to change a judge's order after the case is over (that would neither be appropriate nor permissible) but rather seek to have it ensured that the written record of the judge's order is correct and properly reflects what the judge did say in court. This emphasises that it is the order made by the judge in court that is the order of the court. The drawn up or perfected document is simply a record of that oral order.
3.15 In any event it is also clear that Kearns P. adjourned the motion seeking judicial review from the 26th January, 2011 until February 23rd of the same year. A judge before whom a case is listed always has a power to adjourn it for any one of a whole range of reasons. Even if, therefore, Kearns P. had not given an extension of time to the respondent there would have been no reason why the motion could not have been adjourned for four weeks anyway.
3.16 It follows that Mr. Kavanagh's position on the order made by Kearns P. is misconceived in a number of fundamental respects. First, the fact that no written order was ultimately made up does not prevent what was said in court by Kearns P. from being an order. As an order of the High Court it was, at the relevant time, capable of being appealed to this Court. As a matter of practicality it is likely that this Court would have required sight of a written document before actually hearing any appeal. However, there have been many cases, not least cases where there is significant urgency, where efforts are made to ensure that a written version of an order made orally by the High Court is made available to enable an appeal to progress before this Court. The absence of a written order is purely an administrative matter which can easily be cured. It does not deprive anyone of any right or entitlement to appeal. A party who is affected by an order of the High Court was entitled, at the relevant time, to appeal to this Court and the absence of a written order did not present any insurmountable barrier even though it was likely, as a matter of practicality, that it would have been necessary to ensure that a written order was made up if there was to be an appeal. Indeed, it does require to be noted that it is frequently the case that very straightforward procedural orders, such as adjournments, are not made up unless some issue about the order arises requiring that a formal written order be drawn up and perfected.
3.17 But, in any event, the fact remains that Kearns P. was entitled to adjourn the motion seeking judicial review for four weeks and that motion was, therefore, perfectly properly before Hedigan J. on the 23rd February. The validity of the matter being before Hedigan J. was not in any way dependent on whether an extension of time had or had not been granted. As noted earlier, the rules give, in clear terms, the Court a jurisdiction to extend time even after the initial time period has elapsed. The rules, therefore, expressly contemplate that a judge has the power to extend time to file opposition papers in judicial review even after the period provided for in the rules, or any earlier order, for the filing of those papers has expired. What happened before Kearns P., therefore, had no effect on the entitlement of Hedigan J. to further extend time when the matter was before him on the 23rd February. Hedigan J. had the power, under the rules, to extend time whether or not Kearns P. had previously extended time. It follows that the order of Hedigan J. was made within jurisdiction.
3.18 It is finally important to note that no argument was put forward by Mr. Kavanagh as to why the order should not have been made on the merits. The only argument which he sought to raise before this Court was a technical one which suggested that Hedigan J. had no power to make the relevant order. As noted earlier the fact that a court has the power to extend time does not mean that it should necessarily do so in all cases. There may well be circumstances where the delay on the part of a party to litigation is such that a court feels justified in not extending time even though there may be significant consequences. But as Mr. Kavanagh has not chosen to make any argument to suggest why Hedigan J., even though having jurisdiction, was wrong to exercise that jurisdiction in favour of the respondent, it is unnecessary for this Court to consider the merits of the extension of time in this case. However, suffice it to say that allowing a respondent to file opposition papers at a time which, in substance, was only a small number of weeks after the statement of grounds and verifying affidavit was served would be quite a normal order for a court to make unless there were some strong countervailing circumstances which would weigh heavily against an extension of time. No such circumstances were put forward in this case.
3.19 Before concluding on this appeal the Court should address two further matters which were raised in oral argument by Mr. Kavanagh but which did not form part of any of the grounds of appeal which he had placed before this Court and which are not, therefore, properly aspects of the appeal. However, for completeness, the Court proposes to deal with them.
3.20 First, Mr. Kavanagh suggested that there was no "perfection stamp" on the order of Hedigan J. against which he had appealed. Mr. Kavanagh suggested that it was necessary that there be such a "perfection stamp" so that a party affected by the relevant order would know the date from which it was operative. That view involves a significant misunderstanding of procedural law. As noted earlier an order is effective as soon as it is made (unless the order, by its terms, is not expressed to come into effect immediately). It is true that the rules of court require that a written order should be made up and perfected in a timely fashion and also require that the date on which that happened should appear on the order. In some cases the words "perfected on (date)" appear but no specified formula of words is required by the rules. Once it is clear on its face as to the date on which the order was made up and perfected then the rules have been complied with. It is absolutely clear from the order of Hedigan J. in this case that it was made up and perfected on the same day as the order was orally made in court. Even if that point were properly before the Court it is a point of no merit whatsoever.
3.21 Second, Mr. Kavanagh became involved in an argument as to whether the notice of opposition was in fact filed within the time specified in the order of the High Court. Counsel for the respondent produced a copy of the statement of opposition which was stamped by the Central Office as having been filed well within the time provided. Mr. Kavanagh's assertion to the contrary was based on a print out which he produced at the oral hearing without giving any party, or indeed the Court, an opportunity to consider same. It must be emphasised that the production of documents in the middle of an appeal hearing before this Court is contrary to all proper procedure and unacceptable. But even if the production of such a document were proper and permissible and even if some issue concerning the timing of the service of the notice of opposition were before the Court, the production by counsel for the respondent of a stamped copy of the statement of opposition which recorded that it was filed within time would have been more than sufficient to deal with the matter. Furthermore, it requires to be recorded that the only issue which was before this Court on this particular appeal was whether Hedigan J. had power to extend time in all the circumstances of the case. The question of whether any party who had the benefit of an extension of time had actually complied with the extended time limit was, therefore, in any event, completely irrelevant to the issues which the Court had to consider.
3.22 The Court is, therefore, fully satisfied that the motion seeking judicial review was properly before Hedigan J. on the 23rd February. The case had not come to an end because default orders do not arise in judicial review. The case was still alive. Whether or not an earlier extension of time had been given by Kearns P., Hedigan J. was more than entitled, if he considered it appropriate, to extend time further. He had jurisdiction so to do and Mr. Kavanagh's arguments to the contrary fly in the face of the clear wording of O.122, r.7. As no argument on the merits of the extension of time was advanced the Court must, therefore, dismiss Mr. Kavanagh's appeal against the order of Hedigan J. The Court then turns to the appeal in respect of the injunction application.
4 The Injunction Application
4.2 His principal argument was again technical. He argued that the fact that Peart J. had given leave to seek judicial review had the effect of freezing or staying any process within the social welfare system so that, he suggested, it was impermissible on that basis alone to prevent him from signing on in the usual fashion.
4.3 That argument is entirely misconceived. The provisions of O.84, r.20(7) of the Rules of the Superior Courts, as it applied at the relevant time, read as follows:-
(a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders;
4.5 In any event the natural meaning of the rule is that two separate requirements must be in place before there is a stay. First, leave must be granted. Second, and separately, the Court must direct. That is why the rule uses the word "and" between those two requirements. "And" means that both elements must be present.
4.6 Mr. Kavanagh's argument, therefore, is completely at variance with the ordinary meaning of the rule and is also completely contrary to the requirement that the Court should assume that the words "and the Court so directs" were included for some purpose and were not, in effect, meaningless and of no effect.
4.7 Peart J., when granting leave, did not provide for any stay. The Court did not, therefore, so direct. It follows that there is no stay on any process which is in being within the social welfare system. It was a matter for Mr. Kavanagh to decide how he wanted to deal with that social welfare process but there is nothing in the order of Peart J. which places any stay on that process or which either prevents or requires relevant social welfare officials from taking any particular steps which they may otherwise lawfully take.
4.8 It must also be recalled that the only grounds on which Mr. Kavanagh was given leave to bring judicial review concerned the question of whether it was right for the respondent to decide not to give an oral hearing before the applicant's grounds of appeal in writing had been furnished. The question of whether the original decision taken within the social welfare system was correct or lawful does not, therefore, arise in these judicial review proceedings. There is no existing challenge to the original decision. All there is is a challenge to the question of whether the appeal should involve an oral hearing or not.
4.9 The remainder of the grounds of appeal set out by Mr. Kavanagh are no more than bare assertion. He argues that the decision of Charleton J. is so clearly incorrect that it must be the result of "corrupt collusion" between Charleton J. and Hedigan J. No basis whatsoever for this suggestion is put forward let alone any evidence. It is Mr. Kavanagh's interpretation of the rules which is incorrect not that of Charleton J. Charleton J.'s view that there was no stay was correct in law and provides no basis for any suggestion that he was wrong, let alone wrong for any improper purpose.
4.10 For completeness it should be added that Mr. Kavanagh sought at the oral hearing to argue that, in some way, decisions made by either the social welfare office or by the courts have had the effect of depriving him of his citizenship. That argument is completely ill-founded and, unfortunately, reflects yet another fundamental misunderstanding by Mr. Kavanagh of the legal situation.
4.11 Mr. Kavanagh is a citizen of Ireland. As such he is entitled to the benefit of such social welfare entitlements as the law provides. While the concept of "signing on" is well known as a colloquial term, it involves, as a matter of law, the making of a statutory declaration of unemployment as contemplated by ss. 141 and 245 of the Social Welfare Consolidation Act, 2005 ("the 2005 Act"). A person is only entitled to a job-seeker's' allowance under the 2005 Act if he or she complies with the statutory conditions set out in that legislation which include, under s.141(4)(c), a requirement that the person is "genuinely seeking employment". It is important to emphasise that this Court is not, on these appeals, in any way concerned with the question of whether Mr. Kavanagh was, at the relevant time, genuinely seeking employment or whether the decision made by the relevant social welfare officer, to decide that he was not genuinely seeking employment, was lawfully made. The Court, therefore, expresses no view on that issue. It is, however, important to note that a person who is properly found not to be genuinely seeking employment is not entitled to job-seeker's allowance and is not, it follows, entitled to "sign on". A finding that a person is not entitled to "sign on" does not, therefore, carry with it a finding that the person concerned is not a citizen of Ireland. On the contrary it simply means that the person has not met the criteria which the law requires for job-seeker's allowance.
4.12 Finally, it should be noted that Mr. Kavanagh sought, at the hearing of the appeal, to make reference to an allegation which related to the question of whether various persons (not, it should be recorded, including the respondent) were, at various times, properly appointed to appeal panels in the social welfare system. No evidence of those matters was put before the High Court when the application for an injunction was being heard by Charleton J. The respondent was given no opportunity to consider the allegations and, if necessary, to put in evidence in relation to same. It must be emphasised that the requirement that the Court provides fair procedures applies equally to both sides. It was fundamentally unfair of Mr. Kavanagh to try and pull a rabbit out of the hat by throwing in an accusation in the course of a hearing in relation to a matter where no evidence had been placed before either the High Court or this Court (for the avoidance of doubt the production of a document said to have been obtained under freedom of information does not, in itself, amount to giving evidence). It would have been totally wrong for the Court to have placed any reliance on Mr. Kavanagh's arguments under those headings. The Court has no means of knowing, because Mr. Kavanagh chose not to put in any evidence before the High Court or, indeed, this Court, whether there is any potential substance to the arguments which he puts forward under this heading. If there is some point to what he says and if it has any bearing on his case, then it is a matter for him to consider how to proceed when his judicial review is heard before the High Court. It is important, however, to emphasise that the judicial review which remains for hearing before the High Court is based on one very narrow ground and, in accordance with judicial review law, Mr. Kavanagh is confined to that ground.
4.13 Mr. Kavanagh put forward no further grounds of appeal beyond those already addressed. Those grounds demonstrate a complete misunderstanding of the law and, quite frankly, frequently a refusal to try and understand the legal principles when the Court sought to explain them to him. No grounds were put forward for suggesting that the decision of Charleton J. was anything other than correct. The Court will, therefore, also dismiss appeal 370/2011.
5 Some Final Observations
5.2 Second, it is important to emphasise that the injunction with which this Court was concerned was one sought and refused in August, 2011. If there are new events which might give rise to a separate basis for a new or different injunction then that is a matter to be raised as a fresh application for an injunction before the High Court. The Court would emphasise that the Court is not suggesting that there is or is not any basis for bringing the matter back before the High Court. The Court simply emphasises that the Supreme Court (and now the Court of Appeal) are appellate courts. It is not appropriate to bring new applications for the first time before appellate courts. New applications should be brought before a court of first instance such as the High Court.
6.2 It should also be noted that Mr. Kavanagh had, before the Court, an application initiated in the Supreme Court in which he sought a further injunction. That application was initiated in this Court on the 16th March, 2015, and was stated to be brought in appeal 370/2011. In the light of the decision of this Court to dismiss both appeals there no longer remain any proceedings pending before this Court (as opposed to the High Court) and the question of this Court granting any form of injunction no longer arises. That being said, the Court would wish to emphasise that the proper place in which to seek a new injunction (as opposed to appealing against the grant or refusal of an injunction in the High Court) is in the High Court and not in an appellate court.