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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Celtic Roads Group (Portlaoise) Ltd & Anor -v- The Valuation Tribunal & Anor [2013] IEHC 180 (29 April 2013) URL: http://www.bailii.org/ie/cases/IEHC/2013/H180.html Cite as: [2013] IEHC 180 |
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Judgment Title: Celtic Roads Group [Portlaoise] Ltd & Anor -v- The Valuation Tribunal & Anor Neutral Citation: [2013] IEHC 180 High Court Record Number: 2012 694 JR Date of Delivery: 29/04/2013 Court: High Court Composition of Court: Judgment by: Peart J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 180 THE HIGH COURT Judicial Review Record Number: 2012 No. 694JR Between: Celtic Roads Group (Portlaoise) Limited And Celtic Roads Group (Waterford) Limited Applicants And
The Valuation Tribunal Respondent And
The Commissioner of Valuation Notice Party Judgment of Mr Justice Michael Peart delivered on the 29th day of April 2013: 1. A single issue arises for determination in this case, namely whether the Valuation Tribunal when hearing an appeal to it against a decision of the Commissioner of Valuation has power to stay or adjourn the appeal when to do so inevitably results in the Tribunal’s decision being made more than 6 months after the date on which the appeal is lodged, in view of the provisions of Section 37 (2) of the Valuation Act, 2001 (“the Act of 2001”) which provides:
2. The reason why the Tribunal decided to adjourn or stay (expressions used interchangeably by the Chairman in his decision) these appeals was broadly speaking because in his view the appeal involved the same point of law as was the subject of a Case Stated to the High Court (Ashley Lodge case) and in respect of which a hearing was anticipated within a reasonably short period of time, and he felt that it was desirable to await the outcome of that Case Stated. A decision in the Ashley Lodge case has been given by Charleton J. by the time the present case came on for hearing and a date for the determination of the present appeals was given the Tribunal. In those circumstances one of the arguments by the Notice Party before me is that these proceedings are now moot and ought not to be decided by this Court. The applicants agree that the point of law which was the subject of Ashley Lodge has been determined, but submit that nevertheless the issue in the present proceedings ought to be decided as it is an issue that has arisen subsequently. In that regard, it appears from an affidavit of Ryan Ferry sworn on the 21st February 2013 herein that when the present appeals were listed for mention before the Tribunal on the 21st January 2013 the Commissioner of Valuation applied for a further stay or adjournment in order to await the outcome of two appeals listed before the Supreme Court in April 2013. It appears that a party to one of those appeals is a company related to the present applicants (Celtic Roads Group (Dundalk) Limited). It is submitted therefore that this issue is likely to continue to arise before the Tribunal, and the public interest would be well served if the jurisdiction of the Tribunal to adjourn an appeal beyond the period permitted by Section 37 (2) of the Act of 2001 was clarified by a decision of this Court. Mootness: 4. He has referred to the judgment of Henchy J. in Doyle v. Carr [1971] IR 87. Those proceedings were commenced arising from an alleged frailty in the hearing which led to the granting of an Ad Interim Transfer of an intoxicating liquor licence by the respondent District Justice, since neither the nominee nor any person was examined on oath at the hearing of the application, and this had already been held by the Supreme Court to be a requirement. The impugned Ad Interim Transfer was by nature only temporary, and endured only until the next Annual Licensing District Court in the normal way later that same year when an application was made in the usual way for confirmation of the transfer of the licence to the new owner. By the time the judicial review proceedings came on for hearing therefore, the Ad Interim Transfer was spent and had been replaced by the confirmed transfer order. No issue as to statutory interpretation arose for determination in the proceedings. It was simply an issue as to whether the legal requirements for a proper hearing of such an application had been complied with in that case. 5. It is easy to see why in these circumstances Henchy J. decided that no useful purpose would be served by determining whether the hearing which had resulted in the making of the Ad Interim Transfer Order was in accordance with law. He concluded by saying:
7. Finally, Mr Mohan referred to the judgment of Mr Justice Clarke in P.V. v. Courts Service [2009] 4 IR 264. That was a case where the mother of the applicant had sought to move an ex parte application in the District Court seeking the surrender to her of the applicant’s passport which was in the possession of the child’s father. However, the District Court registrar apparently refused to list the application and told her that her application would not be heard as it was not a proper application under the Guardianship of Infants Act, 1964. Subsequently, however, the High Court granted an injunction restraining the father from removing the applicant child from the jurisdiction and ordered that the passport be returned to the child’s mother. Nevertheless, the applicant sought to pursue a judicial review of the decision by the District Court registrar to refuse to accept the mother’s application to the District Court. Clarke J. concluded that the proceedings were by that stage moot. 8. In so concluding, Clarke J. stated:
10. In the present case Mr Mohan submits that similarly the issue as to whether the Tribunal Chairman acted ultra vires his powers in adjourning or staying the appeals in question to await the outcome of the Case Stated in the Ashley Lodge case is now hypothetical and therefore moot, given that the Ashley Lodge case has now been decided, and an early date for the hearing of the appeals in question has been given. He submits that there is no live controversy between the parties, that no further benefit can be gained by the applicant, and that in so far as the applicant seeks an order of mandamus directing the Tribunal to hear and make a decision on the appeals in question in addition to an order quashing the decision to adjourn the appeals, that such an order would now be futile and ought not be made by this Court in circumstances where a date was allocated already by the time this case was heard before me. 11. In such circumstances, he has submitted that policy requires that the scarce resource of court time should not be expended needlessly, and that this Court should therefore not engage upon the giving of an advisory opinion on what is now a hypothetical matter or at least is no longer an issue the resolution of which can yield any benefit to any of the parties. It is submitted that there are no exceptional circumstances whereby it is desirable in the public interest to decide the issue. 12. Maurice Collins SC for the applicant has pointed to the fact that the effect of having adjourned these appeals to await the determination of the Ashley Lodge Case Stated was to delay the hearing of the appeals to 18 months after the appeals were lodged, making it impossible for the applicant to benefit from the requirement in Section 37 (2) of the Act of 2001 that a decision be made within six months. While Mr Collins did not go on to contemplate what delay would result if an appeal against the decision of Charleton J. was taken to the Supreme Court, some years’ further delay could ensue, but clearly that is not an unimaginable scenario under present circumstances. He referred to the evidence of Ryan Ferry already referred to, and which stands uncontradicted, that when these appeals were listed before the Tribunal for mention in January 2013 an application was made to the Tribunal (chaired by a different Chairman) by the Commissioner of Valuation to adjourn these appeals further pending the outcome of two appeals to the Supreme Court in other cases. That application was refused, as it turned out, but when so refusing on the basis that no exceptional circumstances had been established, the Chairman in her ruling apparently confirmed the Tribunal’s view that it has jurisdiction to adjourn to a date beyond the 6 month period referred to in Section 37 (2) of the Act of 2001. In these circumstances, Mr Collins submits that the issue is still live and in controversy and therefore one upon which this Court should pronounce in these proceedings as it is likely to continue to arise. 13. Mr Collins has sought support from the judgment of Murray C.J. (as he then was) in Irwin v. Deasy [2010] IESC 35. That is a case where the issue concerned the operation of a judgment mortgage against the interest of a co-owner in the property, and where the appellant (the Revenue Commissioners) sought to have the appeal heard and determined even though the proceedings in question had been settled between the parties beforehand. The reason urged against a finding that the proceedings were by then moot was that the issue the subject of the appeal could have relevance in about twenty other cases involving the Revenue Commissioners. In the event, the Supreme Court decided that the appeal should be determined. In his judgment, the learned Chief Justice (as he then was) stated:
The appellant indicates in his submissions that the Revenue Commissioners have under their care and management an estimated minimum of 20 similar cases in which this issue arises, and also states his understanding from Counsel dealing with other cases that a number of actions which raise the same issue have either come before the High Court but have not yet been determined, or have been deferred pending the outcome of the present appeal before this Court. It must also be noted that the issues raised in this appeal have also important implications for the property rights of co-owners of registered land in a similar position to the second named defendant in these proceedings, whose cases are pending before the courts.” The issue: 16. I will again set forth the provisions of Section 37 (2) of the Act of 2002 for convenience:
18. Rule 23 of the Rules provides:
20. In so far as the Tribunal Chairman placed reliance on the said judgment of Dunne J, Mr Collins submits that such reliance was misplaced, as the judgment did not address the question of what if any jurisdiction the Tribunal has to adjourn beyond the limit of 6 months, but was a case rather where the applicant rating authority sought to argue that because an appeal decision had been given outside the 6 month period it should be quashed as an invalid decision. That submission was rejected by Dunne J. He distinguishes the present case from that decision since in the present case there is no issue arising as to whether a decision made outside six months from the date of receipt of the appeal is valid or not. The present issue is a different issue entirely. In concluding that the decision in question was not invalidated by the having been made outside the period allowed, Dunne J. stated as follows:
21. Mr Collins also makes the point that in the present case the adjournment was not dictated or required because of any lack of staff or pressure on the list because of the volume of appeals, or illness of any party or member of the Tribunal. It was solely because the Chairman considered it sensible to await the outcome of a Case Stated on a point that to him seemed similar to the issue in those appeals. 22. It has been submitted that to adjourn in such circumstances flies in the face of the clear wording of the Act and the Rules made thereunder, and that those are intended to ensure that decisions are made speedily and within an outer limit of six months from the date on which the appeal is received. Even Rule 23 specifies that a party to the appeal may only apply for an adjournment in exceptional circumstances. It would seem to me that the intention of the Oireachtas was clearly stated to be that these appeals should be disposed of with a degree of expedition, and that in exceptional circumstances only should appeals be adjourned, and even then only for periods consistent with the Act. Mr Collins points to the sense of this, given that even when a Certification of Valuation is being appealed, the ratepayer is obliged to pay the rates in question pending the determination of the appeal, and therefore it is necessary that the appeal be determined expeditiously in order to minimise any prejudice to the ratepayer in the event that the appeal is successful. 23. Mr Mohan for the Notice Party has submitted that the Tribunal must be entitled to regulate its own procedures, and that where, as is the case here, the applicants, as part of their appeal against the Certificates of Valuation, had raised the very issue that was the subject of the Case Stated in the Ashley Lodge case, namely whether the decision of the Commissioner of Valuation was invalid because it was issued outside a six month time limit for such certificates to issue, it must have jurisdiction to decide at its discretion that these appeals should await the outcome of that Case Stated, even where the applicant was not consenting to the adjournment or stay. 24. He submits that the Act is directory only despite the use of the word “shall”, and that Dunne J. has already so found. He submits that in order to give the Act and the general scheme for the issue of certificates of valuation, and the efficient disposal of appeals therefrom, proper efficacy so that it works efficiently and smoothly, one should read section 37 and Rule 23 in the light of the whole Act and give it a generous and purposive interpretation so that the powers of the Tribunal are not unnecessarily restricted by a strict interpretation. He submits that the adjournment of these appeals until after the Case Stated in Ashley Lodge was decided was sensible, and that it was within the power of the Tribunal to do so when the section and the Rule are considered in the context of the whole Act. He submits that it cannot have been the intention of the Oireachtas that there would be a proliferation of Cases Stated to the High Court on the same point, and that the Tribunal was correct to deal with the matter in the way it did. 25. I can readily see the sense and pragmatism of what the Chairman of the Tribunal decided to do. However, that is an insufficient basis for doing so, no matter how commendable from the point of view of efficiency. The Tribunal has no inherent jurisdiction. The Tribunal has only such powers as are conferred upon it by the Oireachtas. The words used by the Oireachtas are the best source for determining the intention of the Oireachtas when enacting legislation. If those words are clear and unambiguous, then one does no more that read the words and give to them the ordinary meaning of the words used. The same is equally applicable to the words of the Rules made thereunder. Of course, in the case of ambiguity or obscurity as to the meaning of the words used, the normal canons of construction can be resorted to, or indeed Section 5 of the Interpretation Act, 2005 which gives guidance as to what to do where a provision is obscure or ambiguous. But in the present case, the meaning of Section 37(2) of the Act of 2001 is not in the least obscure. In fact it is crystal clear. It means simply what it says. I agree that it should be read as being directory in nature rather than mandatory in the sense that a decision made outside that period specified should not be regarded as invalid. But it is another matter altogether to read it as conferring a jurisdiction on the Tribunal to voluntarily ignore the provision where there is no exceptional circumstance which would make that necessary. 26. It seems to me that the words of Rule 23 also support this. An appellant for many reasons may seek to have his/her appeal adjourned. It happens all the time that applications to adjourn are made. In order to prevent the wholesale adjournment of appeals the rule, consistent with the intention and aspiration expressed in Section 37 (2), specifically provides that the Tribunal may adjourn or postpone an appeal in exceptional circumstances. In addition, a party may seek an adjournment only where some exceptional circumstances exist. To impute a further jurisdiction in the Tribunal in the face of such a provision and such a Rule so that an appeal could be adjourned sine die, and potentially for several years, seems to me to be going further than giving sensible efficacy to the statutory code. It would amount to changing the legislation and the Court cannot do that. It is for the Oireachtas to legislate, and for the Courts to interpret that legislation, but not to alter it. 27. Given the provisions of Section 37(2) and the wording of Rule 23, I believe that the Act would need to express in clear terms any situation in which the provision of the Act is not to apply. It is silent in that regard. 28. Given that a day for resumption of the appeals had been given by the time this matter came before me, and given in all likelihood that by now the appeals have been determined, I will not grant any of the reliefs by way of certiorari or mandamus as sought in the Statement of Grounds. But I grant a declaration that the Tribunal acted ultra vires by adjourning these appeals to a date which was outside the period specified in Section 37 (2) of the Act of 2001 in order to await the outcome of the Case Stated in the Ashley Lodge case. That declaration suffices for present purposes. However, I will hear the parties in the event that either or both parties consider that the declaration should be differently worded.
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