The Gazette 1988

SEPTEMBER 1988

GAZETTE

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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