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You are here: BAILII >> Databases >> Irish Court of Appeal >> Alamazani v A Judge of The District Court (Approved) [2025] IECA 82 (03 April 2025) URL: https://www.bailii.org/ie/cases/IECA/2025/2025IECA82.html Cite as: [2025] IECA 82 |
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THE COURT OF APPEAL
Court of Appeal Record No: 2024 272
High Court Record No.: 2024 595 JR
Neutral Citation No.: [2025] IECA 82
Faherty J.
Binchy J.
Butler J.
BETWEEN/
ROBERTO ALAMAZANI
APPLICANT/
APPELLANT
- AND -
A JUDGE OF THE DISTRICT COURT
RESPONDENT
JUDGMENT (ex tempore) of Mr. Justice Binchy delivered on the 3rd day of April 2025
1. This is an appeal from a judgment of the High Court (Gearty J.) of 25th November 2024, refusing the appellant leave to issue proceedings by way of judicial review seeking an order of certiorari quashing the decision and order of the respondent delivered on 15th April 2024, and related orders. That decision, which I shall hereinafter refer to as the "impugned order" was one granting Dublin City Council an order for possession of a dwellinghouse, the subject of a lease made between Dublin City Council and the appellant, together with a decree of €13,663.865 in respect of arrears of rent.
Background
2. Pursuant to its statutory functions, Dublin City Council appointed the appellant as a tenant to a dwelling house situate at 27 Beech Hill, Donnybrook, Dublin 4 at the weekly rent of €37.00. The appellant maintains that from the very outset he was dissatisfied with the condition of this dwelling house and that he sent a letter to Dublin City Council, on 18th January 2020, informing the Council that he did not want the house and requested a full refund of money paid. Notwithstanding this, the appellant remained in possession of the dwelling house, and fell into arrears with his rental obligations and, as a result, the Council made an application for possession of the dwelling house which application, according to the impugned order, was served on the appellant on 9th November 2022. That application was not finally determined by the District Court until 15th April 2024, when the respondent made the impugned order, the terms of which required that it should be executed between 15th June 2024 and 15th January 2025. As mentioned above, the District Judge also granted a decree of €13, 663.865 in respect of arrears of rent due and owing by the appellant to the Council as of 15th April 2024. Assuming that the weekly rent did not change since the grant of the lease, this sum represents a little more than 369 weeks or seven years arrears of rent, during the course of which the appellant remained in occupation of the dwellinghouse, notwithstanding that he maintained he did not want the same.
3. The appellant did not appeal the decision of the District Judge to the Circuit Court. Instead, he elected to issue these proceedings. Although the Court was not provided with any ex parte docket, it appears that the proceedings were first before the High Court on 1st May 2024, and were then adjourned to 31st July, when the court (Bolger J.) ordered that the appellant should have liberty to issue and serve a notice of motion returnable for the judicial review list on 9th October 2024 and further ordered that the appellant should serve a sworn copy of the statement of grounds and grounding affidavit on the Chief State Solicitors Office representing the respondent and on the Council. It appears that the appellant was also afforded an adjournment on this date so that he could apply for legal aid. The appellant brought no appeal from the orders made by Bolger J. On the same day, the Council undertook to the court not to execute the impugned order before 15th October 2024.
4. The appellant did not issue and serve the notice of motion, grounding affidavit and statement of grounds as ordered by Bolger J. and has indicated to this court that he experienced problems in the Central Office when he attempted to do so. On 9th October Gearty J. extended the time for the appellant to do so to close of business on 11th October and fixed 4th November as the return date for the motion. The appellant had still not lodged his papers in court by that date, and so the matter was adjourned further to 12th November 2024. On that date, while the appellant had served the motion and related documents, he sought a further adjournment so that he could obtain legal advice from the Legal Aid Board. Gearty J. heard the application for the adjournment and the leave application simultaneously and did not rule on the former until she delivered her final judgment. The question of whether the leave application was fully heard on 12th November was the subject of considerable debate at the hearing of this appeal and is more fully addressed below. However, the appellant made submissions in support of the application, and the Court also heard submissions from counsel for the respondent, who sought to have the application dismissed. Gearty J. reserved judgment until 25th November when she handed down the judgment from which the appellant now appeals.
5. In the intervening period, the appellant sought to have the matter listed again, and it was listed and mentioned before the Court on 21st November 2024. I understand that this was for the purpose of having a stay placed on the impugned order, but this was not necessary as the Council gave a further undertaking not to execute the impugned order prior to 25th November 2024.
Judgment of the High Court
6. At the outset, the High Court judge noted that an applicant for judicial review must demonstrate arguable grounds for the remedies sought: G v. DPP [1994] 1 I.R. 374. The judge also observed that it is well-established that the remedy of judicial review is one that is available only when other remedies have been exhausted. She referred to the decision of Murray J. in Chubb European Group v. HIA [2020] IECA 91, wherein Murray J. held that if there is an alternative remedy, relief should be refused unless that remedy is not adequate, or it is otherwise in the interests of justice to allow leave instead. The High Court judge held that on this ground alone the application should be struck out unless there is a reason as to why judicial review is in the interests of justice. However, she also observed that where there has been a fundamental lack of fair procedures at the first decision making stage, then judicial review may be appropriate.
7. The Judge then proceeded to address the substantive case made by the appellant, which was that the District Judge should have recused herself because the appellant had made a complaint about the District Judge to the Judicial Council. The Judge noted that the only evidence of this complaint was an email apparently from the Judicial Council to the appellant, naming the respondent, and stating that the appellant is "directly affected by the conduct complained of." The Judge also noted that, on the face of the impugned order, it is recorded that the appellant did not appear before the District Court on the day that the impugned order was made, and nowhere does he claim that he made an application that the respondent should recuse herself. The Judge concluded that there was no evidential basis for an argument that the Judge was biased. Moreover, the Judge noted that in the recent case of Smith v. Cisco Systems Internetworking (Ireland) Ltd [2023] IECA 186, this Court held that a recusal application on the basis of apprehended bias must demonstrate the reasonable apprehension of bias. The Judge held that it was for the appellant to put all evidence and facts before the court to support his claim of objective bias. The mere fact of a complaint to the Judicial Council, will not, without more, create a perception of unfairness.
8. The Judge then proceeded to address the appellant's fair procedures complaints. The appellant had submitted that, in the District Court, the Council had submitted a misleading inspection report to the Court, that did not reflect matters that he brought to the attention of the Council engineers who had conducted the inspection. However, the Judge concluded, the fundamental claim of the appellant was untenable. She held: -
"The applicant argues that his unwillingness to accept the tenancy is sufficient grounds to take possession of the property, refuse to pay rent, fail to fully defend the District Court proceedings, complain about the Judge and then apply for judicial review to quash the possession order made. To make matters worse, he does not appear to want possession, but he wants a refund. If he continued to pay rent, he was entitled to possession. Not having paid rent, the landlord was entitled to begin possession proceedings. When the Applicant failed to appear after being notified of the hearing date, once the arrears of rent had been proven, the Judge was entitled to make the order sought."
9. The Judge further observed that the appellant's complaint that he had not been accorded fair procedures was difficult to reconcile with the known facts of the case as recorded on the face of the impugned order, i.e. that he had been served with notice of the proceedings, but did not appear before the Court on the date that the order was made.
10. The Judge also addressed the appellant's application for an adjournment. The appellant had sought an adjournment so that he could obtain legal advice. However, the Judge had regard to the number of occasions on which this matter had already been in court, and noted that the impugned order was time sensitive and was due to expire in under two months (i.e., January 2025). The Judge did not consider that all court proceedings must be adjourned while a legal aid application is pending. She noted that, pursuant to s. 28 of The Civil Legal Aid Act, 1995, one of the factors to be taken into account in the consideration of an application for legal aid is the prospect of success in an action. The Judge said that she could not see any basis on which the appellant could succeed in an application for leave to judicially review the impugned order, having failed to appear to contest it and then having failed to appeal it. For all of these reasons, the Judge refused the application.
The Appeal
11. In his notice of appeal filed on 2nd December 2024, the appellant claims that the High Court judge erred in failing to apply Order 84 of the Rules of the Superior Courts correctly. Specifically, he claims that by ordering the appellant to issue and serve a notice of motion together with a statement of grounds and grounding affidavit on the Chief State Solicitors Office, representing the respondent, and the Council, before granting leave to apply for judicial review, the High Court judge violated Order 84 of the Rules of the Superior Courts, which, the appellant submits, states that judicial review proceedings can only be initiated after leave to proceed has been granted by the court. Therefore, the appellant claims, in requiring the appellant to place the respondent and the Council on notice of the application, the High Court judge violated his constitutional rights of equality before the law and his right to fair procedures.
12. Secondly, the appellant claims that at the hearing of 12th November 2024 the High Court judge erred in hearing the respondent's application to dismiss his application for judicial review, even though he had not yet applied for leave to initiate the same. At hearing today, the appellant forcefully and repeatedly submitted to the court that he was not afforded the opportunity to move his application for judicial review on this occasion. Instead, the appellant claimed, the High Court judge informed him that he would be afforded the opportunity to move his application on the 25th November, to which date she adjourned the application. The appellant claims that on that date, instead of allowing the application to proceed, the Judge handed down judgment, refusing his application for leave. The appellant submitted that in so doing, the High Court judge acted in breach of fair procedures and in violation of his constitutional rights.
13. However, the appellant failed to exhibit any transcript of the proceedings before Gearty J. on 12th November last. In circumstances where the respondent contended that the appellant's application had been fully heard by the High Court judge on 12th November, the court agreed, at the request of the appellant and exceptionally, in order to ensure that it had a correct understanding as to what occurred in the court on 12th November, to listen to the DAR of the proceedings on 12th November. Having done so individually, each member of the court was satisfied that the DAR unequivocally makes clear the following matters: -
(1) The appellant's application for leave was called on for hearing on the afternoon of 12th November and he duly moved the same;
(2) From the very outset, the High Court judge made clear this was the appellant's application, and she repeated this on two further occasions. She also made it plain that, while she was trying to help the appellant, his application needed to be grounded on evidence;
(3) She discussed the background to the proceedings with the appellant and also the grounds upon which he claimed that the District Court judge had conducted the proceedings in the District Court in violation of fair procedures and in breach of his constitutional rights;
(4) Having satisfied herself that she fully understood the grounds upon which the appellant sought judicial review, the High Court judge then heard from counsel for the respondent, and thereafter, in the usual way, afforded the appellant his right of reply;
(5) Having heard from both parties, the judge said that having regard to the complexities of the matter, she would not give a decision that day, but that she would adjourn the matter to a date suitable for the parties (which was fixed by agreement of all present for 25th November) on which date the judge expressly stated she would;
(i) Give a decision upon the appellant's application for an adjournment so he could obtain legal aid, and;
(ii) If the adjournment application was not granted, she would decide upon the application for leave on the basis that the appellant had appeared and had been able to make his case.
14. On resuming the appeal hearing today, the court informed the appellant that each member of the court had listened to the DAR, and that it plainly did not support his version of events. The court summarised for the appellant what occurred on 12th November before Gearty J., as outlined above. The appellant declined to accept that this represented an accurate account of what happened on 12th November, and has asked for a copy of the DAR. The court then heard from counsel for the respondent and from the appellant in reply, in the usual way.
15. Finally, the appellant also raised an issue, in his notice of appeal, about the application that he made ex parte, on 15th November 2024, for a stay on the execution of the impugned order, which application was adjourned to 21st November 2024. However, this really has no bearing at all on the on the judgment under appeal, and does not require any consideration, not least having regard to the decision of the High Court to refuse the application for leave.
16. There are no grounds of appeal relating to the substance of the judgment of the High Court.
Decision
17. The first main premise of the appellant's appeal is that the High Court judge erred in requiring the appellant to place the respondent and Dublin City Council on notice of the application for leave. The first point to be made about this point is that the order directing the appellant to place the respondent on notice was made by Bolger J. on 31st July 2024, and this was not appealed by the appellant. On the contrary, he purported to comply with it, and eventually did comply with it, having been afforded two adjournments to do so.
18. Secondly, the appellant has clearly acquainted himself with O. 84 Rules of the Superior Courts, and it seems somewhat surprising that he makes no reference at all to O. 84, r. 24(1) of the Rules which provides: -
"24. (1) The Court hearing an application for leave to apply for judicial review may, having regard to the issues arising, the likely impact of the proceedings on the respondent or another party, or for other good and sufficient reason, direct that the application for leave should be heard on notice and adjourn the application for leave on such terms as it may direct and give such directions as it thinks fit as to the service of notice of the application for leave (and copies of the statement of grounds, affidavit and any exhibits) on the intended respondent and on any other person, the mode of service and the time allowed for such service".
19. As counsel for the respondent has correctly submitted, the entitlement of a court to direct that an application for leave be heard on notice, pursuant to O. 84, r. 24(1) has very recently been affirmed by the Supreme Court in O'Doherty v. Minister for Health and Ors. [2022] 1 ILRM 421. This ground of appeal is therefore entirely misconceived, and it is difficult to imagine that the appellant could not have been aware of O.84, r. 24(1) given his familiarity with other provisions of Order 84. I would therefore dismiss this ground of appeal.
20. It will be apparent from para. 13 above that the appellant's second ground of appeal, which effectively is that his application was not heard on 12th November 2024, should also be dismissed. The Court is satisfied beyond any doubt that the appellant's leave application was heard by the High Court judge on 12th November last. She made it very plain to the appellant that she was hearing his application, and she afforded him great latitude in the manner in which she conducted the hearing, in light of clear evidential deficits. She also made abundantly clear at the conclusion of the hearing the purpose for which she was adjourning the proceedings to 25th November, and the appellant could have had no reasonable doubt in this regard.
21. Since the appellant has not attempted to appeal from or address in any way the substantive conclusions of the High Court judge, the foregoing conclusions are sufficient to dismiss the appeal. When invited by this Court to address the respondent's argument that the High Court decision was, in any event, substantively correct the appellant merely repeated the claims made in his pleadings and did not engage with the High Court judge's analysis of or treatment of those issues. However, even had the appellant sought to engage meaningfully with the judgment under appeal, the result would have been just the same. The appellant plainly failed to meet the standard of an arguable case, per G v. DPP, as alluded to by the High Court judge. Moreover, in failing to appeal the order of the respondent to the Circuit Court, the appellant failed to exhaust an alternative remedy, and having failed in his argument that the respondent should have recused herself, he failed to demonstrate any reason as to why an appeal was not an adequate remedy.
22. It is no small irony that the appellant claims, repeatedly in the documentation submitted with this appeal, that the proceedings issued by the Council in the District Court were frivolous and vexatious. It is difficult to imagine a more frivolous and vexatious application for judicial review than the one advanced by the appellant herein, and that observation applies with even greater force to this appeal. The passage that I have quoted from the judgment of the High Court at para. eight above succinctly sums up the absurdity of the appellant's claim in relation to his dispute with the Council. His claim that the respondent should have recused herself from entertaining the application for possession - which it may be noted had been ongoing for a period in excess of two years - in circumstances where he did not even attend court on the date that the order was made and in which no application was made on his behalf to the District Judge that she should recuse herself, is an even greater absurdity. Had he attended however, and had he made an application to the respondent to recuse herself, it would, as the High Court judge held, have required more than the mere fact of the appellant having made a complaint about the respondent to the Judicial Council to require the respondent to recuse herself. As the High Court judge held, this has very recently been affirmed by this Court in its decision in Smith v. Cisco Systems Internetworking (Ireland) Ltd [2023] IECA 186, and there was no error in the High Court judge's conclusion on this issue.
23. There was no violation of the appellant's constitutional rights, his right to fair procedures or equality before the law. The appellant has not sought to challenge the substance of the judgment of the High Court, but in any case it is plain that that judgment is of the High Court is unimpeachable. I have no hesitation in dismissing this appeal, which is manifestly unsustainable.
Result: Appeal Dismissed