Supporting Documents:
 
SUPREME COURT
DETERMINATION
BETWEEN
OWEN V. McGINTY
APPLICANT/APPELLANT RESPONDENT AND
GALWAY MAYO INSTITUTE OF TECHNOLOGY NOTICE PARTY
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court does not grant leave to the applicant/appellant to appeal to this Court from the Court of Appeal.
REASONS GIVEN:
1. This determination concerns an appeal brought by the applicant/appellant (hereafter referred to as “the Applicant”), from the judgment of the Court of Appeal delivered on 22nd July, 2015 and the order of the Court of Appeal dated 22nd July, 2015. The Court of Appeal dismissed the Applicant’s appeal with no order as to the costs of the appeal. As is explained later, the notice party (hereinafter referred to as “the Notice Party”), not the respondent, was the contradictor on the appeal.
2. This Court has jurisdiction to hear an appeal from the Court of Appeal, in the circumstances described in Article 34.5.3° of the Constitution, which states:
3. The decision of the Supreme Court under Article 34.5.6 is, in all cases, “final and conclusive”.
4. The constitutional framework established by the Thirty-third Amendment to the Constitution, accordingly, requires that, in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal, it has to be demonstrated that either a “matter of general public importance” arises, or that “in the interests of justice it is necessary that there be an appeal” to this Court.
5. The statutory framework for the exercise of the right to appeal to this Court is to be found in the Court of Appeal Act 2014, and, in particular, in the provisions of s.44 of that Act, which inserts a new s.7 into the Courts (Supplemental Provisions) Act, 1961.
6. The relevant Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.
7. The Constitution has retained the entitlement to have one appeal as a right from the High Court to the Court of Appeal, subject to express exclusions or regulation by statute. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined, principally, to cases where, as a result of the determination of the Court of Appeal, the decision of that court is such that the issues raised on a proposed appeal would involve a matter of general public importance, or would be such that it is in the interests of justice that there should be a further appeal to this Court.
Underlying High Court proceedings
8. The underlying judicial review proceedings in the High Court arose out of a claim by the Applicant against the Notice Party pursuant to the Employment Equality Acts 1998 to 2011 to the Equality Tribunal that the Applicant has been discriminated against by the Notice Party on the basis of his age. Following a hearing, the Equality Officer assigned to hear the case issued her decision on 28th March, 2012, finding against the Applicant. The Applicant sought to appeal that decision and lodged his appeal with the respondent on 9th May, 2012. The Notice Party challenged the jurisdiction of the respondent to hear the appeal on the basis that the notice of appeal was not served within the prescribed statutory time limit. The respondent did not hear the appeal. In the judicial review proceedings in the High Court the Applicant sought and was granted leave to seek judicial review of the decision of the respondent to decline to hear the appeal. The respondent did not participate in the judicial review proceedings. Accordingly, the Notice Party was the real contradictor on the judicial review proceedings.
9. The judicial review application was heard in the High Court by Kearns P. on 22nd March, 2013. He refused the relief sought in his judgment delivered on 30th March, 2013. He quoted s. 83(1) of the Employment Equality Act 1998 (the Act of 1998), which sets out the statutory time limit for an appeal by the Applicant to the respondent and provides:
“Not later than 42 days from the date of a decision of the Director under section 79, the complainant or the respondent may appeal to the Labour Court by notice in writing specifying the grounds of the appeal.”
Kearns P. stated that the legislation did not give the Court any discretion to extend the time to appeal. He stated that it was not in dispute that the Applicant’s notice of appeal to the respondent arrived forty three days after the decision of the Equality Officer. He then outlined the Applicant’s submission on the meaning of s. 83(1) and his contention that the meaning of the words “Not later than 42 days from the date of a decision” must mean from the day following the decision. In reliance on the application of s. 18(h) of the Interpretation Act 2005 (the Act of 2005), Kearns P. rejected that submission. He quoted s. 18(h) which provides:
“Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall be deemed to be included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall be deemed to be included in the period.”
Kearns P. held that it was abundantly clear what the legislature intended in the enactment of the foregoing provisions. On the basis that the Applicant’s notice of appeal was not served within the statutory time limited prescribed by s. 83(1), Kearns P. refused the relief sought by the Applicant and he awarded the Notice Party its costs of the proceedings when taxed in default of agreement. Those decisions are reflected in the order of the High Court, which was perfected on 2nd April, 2013.
Appeal to the Court of Appeal
10. The Applicant appealed the decision of the High Court to the Court of Appeal. The appeal was heard on the 22nd July, 2015 by Ryan P., Irvine J. and Mahon J. The ex tempore judgment of the Court was delivered on 22nd July, 2015. In the judgment (at para. 14) the Court of Appeal held that the decision of the High Court that the appropriate mode of construction of s. 83(1) of the Act of 1998 was to look at s. 18(h) of the Act of 2005 is in accordance with relevant legal authorities. Accordingly, the Court of Appeal held that the only result open to it was to confirm the correctness of the conclusion of Kearns P. In the order of the Court of Appeal made on 22nd July, 2015 the Applicant’s appeal was dismissed with no order as to the costs of the appeal.
Application for leave to appeal
11. The Applicant seeks leave to appeal against the entire decision of the Court of Appeal.
12. The Applicant appeared in person before the High Court and before the Court of Appeal and has brought the application for leave to appeal in person.
Reasons advanced by the Applicant as to why leave to appeal should be granted
13. In support of his contention that the decision of the Court of Appeal involves a matter of general public importance, the Applicant makes many assertions alleging erroneous application by the Court of Appeal of s. 83(1) of the Act of 1998 by reference to s. 18(h) of the Act of 2005, including the following:
(a) that there is non-compliance by the State with various instruments of European Union law from Treaties to Directives and Regulations, without, however, identifying the precise provisions of the instruments or how non-compliance therewith arises;
(b) that there is non-compliance by the State with “Conventions of the Council of Europe”;
(c) that there is failure to provide Irish citizens with the protection afforded by the EU principles of equivalence and effectiveness and a denial of the rights of Irish citizens by imposing a provision that conflicts with European Union laws;
(d) that a measure is being implemented counter to the basic principle of law, generalia specialibus non derogant, and in a manner repugnant to Article 40.3.1° and Article 40.3.2° of the Constitution; and
(e) that the first canon of statutory interpretation, the literal one, is being abandoned in a manner repugnant to Article 40.3.1° and Article 40.3.2° of the Constitution.
14. In support of his contention that in the interests of justice it is necessary that there be an appeal from the Court of Appeal to this Court, the Applicant has advanced reasons which generally overlap with the reasons advanced in support of his contention that there is a matter of general public importance involved, in that he asserts that the decision under appeal involves a denial of rights to Irish and other European Union citizens under European Union law. He also asserts that the interpretation of the relevant provisions of the Act of 1998 and the Act of 2005 in the decision of the Court of Appeal is incorrect and that it is a denial of the rights of the citizens and is detrimental to their rights. He further asserts that the interpretation “is probably repugnant to an article of the Constitution that guarantees to safeguard and vindicate rights”.
Reasons advanced by Notice Party for opposing leave to appeal
15. The Notice Party opposes the Applicant’s application because it is contended that the substantive grounds set out by the Applicant and outlined earlier are entirely new and were not raised by the Applicant either in the High Court or on the appeal to the Court of Appeal. In particular, it is pointed out that the allegations of unconstitutionality of the Act of 2005 and of breaches of European Union law were matters which were not addressed in either court below.
16. However, the Notice Party submits that, in any event, the decision in respect of which leave to appeal is sought does not involve matters of general public importance, nor is it necessary in the interests of justice that there be an appeal to this Court.
17. The Notice Party submits that the decision of the Court of Appeal on the interpretation of s. 83(1) of the Act of 1998 is not a matter of general public importance. No novel legal issue has been identified by the Applicant. The decisions of both the High Court and the Court of Appeal relied on basic principles of statutory interpretation and existing jurisprudence. Notwithstanding the Notice Party’s objection to the Applicant raising issues of European Union and constitutional law, the Notice Party outlines its response to the Applicant’s assertions pointing to the following factors –
(a) the necessity for statutory time limits for providing certainty in law;
(b) that the statutes under consideration enjoy a presumption of constitutionality;
(c) that the relevant provisions of the statutes are clear, unambiguous and explicitly set out the intention of the legislature;
(d) that the Act of 2005 does not contravene the rule generalia specialibus non derogant and it does not override the relevant provisions of the Act of 1998, but rather provides guidance as to the interpretation of common statutory terms; and
(e) that the application of the Act of 2005 provides consistency in statutory interpretation which is in the public interest.
It is emphasised by the Notice Party that the underlying proceedings concern the refusal of the respondent to hear the Applicant’s appeal from the decision of the Equality Officer because notice of appeal was out of time. In short, it is contended, that is the Applicant’s problem and it is not a matter of general public importance.
18. The Notice Party also submits that an appeal to this Court is not necessary in the interests of justice, given that the Applicant has had two full hearings in relation to substantially the same issues as form the subject matter of this application, in the course of which he had an opportunity to and made submissions on what is described as “a large body of Irish, European and USA jurisprudence, authorities on the principles of interpretation of law and general legal principles”. On the basis that the Applicant’s submissions have been fully and comprehensively aired, addressed and dismissed by both the High Court and the Court of Appeal, it is submitted that the interests of justice do not require a further hearing of these issues. Further, the Notice Party submits that on the issue of the interpretation there is jurisprudence from this Court which supports the interpretation of s. 83(1) of the Act of 1998 applied both in the High Court and by the Court of Appeal, referring to the decision of this Court in Hegarty v. Labour Court [1993] 3 I.R. 603, which concerns the proper interpretation of an analogous statutory provision, which imposes a time limit on an appeal to the Labour Court under a provision of the Anti-Discrimination (Pay) Act 1974.
Decision
19. In the light of the decision of the High Court and the decision of the Court of Appeal in this matter, the law on the interpretation of s. 83(1) of the Act of 1998 in the context of the relevant provisions of the Act of 2005 and, in particular, s. 18(h) thereof is settled law. That being the case, the decision which the Applicant seeks leave to appeal against does not involve a matter of general public importance.
20. Further, having regard to the fact that the Applicant has had two full hearings in the Superior Courts on the issue of his entitlement to have his appeal to the respondent heard, it is not necessary in the interests of justice that the Applicant be given leave to appeal the decision of the Court of Appeal.
21. That being the case, the Applicant has not demonstrated that either of the criteria stipulated in Article 34.5.3° of the Constitution is complied with.
22. Consequently, the Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal.
AND IT IS HEREBY SO ORDERED ACCORDINGLY.
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