479 / 822
GAZETTE
SEPTEMBER 1988
decision of a District Court clerk
some eighteen months previously
to issue a summons under s. 10(4)
of the Petty Sessions (Ireland) Act,
1851. The applicant had been
convicted of assault, but his appeal
was pending in the Circuit Court.
While Barr J. did not, as such, deal
w i t h the point, he did indicate that
t he a p p l i c a nt w o u l d a l mo st
certainly be able to establish the
invalidity of the summons before
the Circuit Court.
21
Barr J. was,
however, required to deal w i th a
preliminary point. The applicant
was clearly out of time, but were
there " g o od reasons" w i t h in the
meaning of 0.84, r. 21(1) justifying
an extension of the six months
time-limit within wh i ch to apply for
certiorari?
The applicants relied on the
principles to be found in
The State
(Furey) -v- Minister for Defence
and
argued that he was, despite his
delay en t i t l ed to an order of
certiorari
to quash the decision
ex
debito justitiae.
Barr J. concluded
that there were three features to
the present case wh i ch rendered
inapplicable the reasoning in
Furey.
First, unlike the applicant in
Furey,
Mr. So l an had p r o v i d ed no
e x p l a n a t i on
f or
t he
delay.
Accordingly, there was no material
before the court wh i ch could guide
it in the exercise of its discretion.
Secondly, the applicant in
Solan
sought to take refuge in a technical
point, a factor wh i ch weighed
heavily against the exercise of a
discretion in his favour. Finally,
Furey had no alternate remedy,
whereas in the present case the
applicant could apeal
de novo
to
t he
C i r c u it
Co u r t.
In
t he
circumstances, Barr J. considered
there were no good reasons for
extending time under 0.84, r.21(1).
Nor could he accept that the mere
fact that Johnson J. had granted
leave to apply for judical review
was sufficient to dispose of the
delay argument. A l t hough he had
no way of know i ng the extent of
the argument on this issue at the
granting of leave stage, the fact
remained that he had the benefit of
a much fuller argument and of
hea r i ng b o t h s i des. In t he
circumstances, Johnson J.'s order
should be regarded as being in the
nature of interim relief to enable all
aspects of the case to be opened,
and not as having conclusively
settled the issue of delay.
The manner in wh i ch
Furey
was
distinguished by Barr J. is, perhaps,
open to question. It is true that
Furey
p r o v i d ed
a
de t a i l ed
explanation for his delay, but this
does not appear to have been an
essential feature of the decision. As
McCarthy J. said in a crucial
passage at the conclusion of his
judgment:
" I see no logical reason why
delay, however long, should, of
itself, disentitle to
certiorari
any
applicant for that remedy who
can demonstrate that a public
wr ong has been done to him -
that, for instance, a conviction
was obtained w i t h o ut juris-
diction or that, otherwise, the
State has wronged him and that
the wr ong continues to mark or
mar his life."
22
The applicant in this case had
sought to quash a conviction which
was almost certainly given without
jurisdiction. Is he to be shut out in
these circumstances by reason of
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