Sfar v Revenue Commissioners: applicant for mandamus must first call on the administrative body concerned to do its duty, and this must have been refused

Here, the Supreme Court confirmed the High Court finding that Sfar’s judicial review application was out of time and that the High Court was therefore correct to dismiss her action, as she had not applied for an extension of time. However, the Court overturned the High Court Judge’s finding that Sfar lacked candour in her submissions.

Background

Sfar is an employee of the Revenue Commissioners since 1978. She holds a BA Degree and an LLB. In 2004, Revenue issued a circular titled “Refund of Academic Fees Scheme” to its employees. To convert her LLB into a professional qualification, Sfar undertook a Bar Vocational Course with a private London college. In 2007, she applied, under the Refund scheme, for a refund of her course fees.

In March 2008, Revenue informed Sfar that the business case did not support her application. Sfar entered correspondence with Revenue seeking to have that decision reversed. Revenue issued two further refusals in 2008. In January 2009, the Assistant Secretary reviewed the case and issued a final refusal. Sfar continued to correspond with Revenue until February 2010, when Revenue stated that it had set out its final decision in January 2009 and requested she halt correspondence on the matter. In March 2010, the High Court granted Sfar leave to issue judicial review proceedings seeking an order of mandamus directing Revenue to review its decision.

In the High Court, MacMenemin J dismissed Sfar’s application on grounds of delay. Under Order 84, rules 18 -21 of the Rules of the Superior Courts, a judicial review application must be made within three months (six months for certiorari). MacMenamin J determined that Sfar’s grounds for action arose with Revenue’s decision in January 2009, therefore her application was out of time. MacMenamin J went on to find that Sfar had lacked candour in not outlining the full sequence of exchanges between herself and Revenue in her application. Sfar appealed the High Court decision to the Supreme Court.

Supreme Court

On appeal, Sfar argued that she could not apply for judicial review until she had exhausted alternative remedies, and, therefore, for the purposes of her application, Revenues final decision was February 2010.

Upholding the decision of the High Court, McKechnie J adopted the rule from Hogan & Morgan, Administrative Law in Ireland that for a cause of action to arise “the applicant for mandamus must first call on the administrative body concerned to do its duty, and this must have been refused” [21].Therefore, Sfar’s cause of action arose with Revenue’s decision of January 2009. Order 84 requires that an application for an order of mandamus must be moved promptly; but Sfar did not apply for judicial review within the prescribed three months.  Order 84 allows for an extension of time where the applicant shows “good reason”. McKechnie stated that “good reason” was best defined by Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301, 315:

The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

However, Sfar had not applied for leave to extend time to issue proceedings, therefore the High Court was correct to dismiss her application.

On the issue of lack of candour, McKechnie J overturned the decision of the High Court. He found that Sfar was prima facia justified in arguing that  her cause of action arose in 2010–even though that was incorrect.

Clarke J and Dunne J concurred.

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