The Supreme Court has dismissed two appeals brought by David Kavanagh in judicial review proceedings concerning a Social Welfare Appeals Officer’s refusal to grant an oral hearing and a later application for an injunction.
In the first appeal, the court upheld an order made by Hedigan J. allowing the respondent to serve a statement of opposition and file and serve a replying affidavit. The Supreme Court held that Order 122, rule 7 of the Rules of the Superior Courts gave the court power to extend time, including after a deadline had passed and after an earlier extension. Kavanagh’s lack of consent did not remove that power.
The court also rejected the argument that the respondent’s failure to file opposition papers on time meant Kavanagh had won by default. It said judicial review does not produce an automatic order when a respondent does not oppose an application: the applicant must still persuade the judge at a hearing that the requested relief is appropriate. No such hearing on the merits had taken place.
The second appeal concerned the refusal by Charleton J. to grant an injunction sought in August 2011. Kavanagh argued that the grant of leave to bring judicial review had frozen the social welfare process. The Supreme Court said a stay required a separate direction by the court, and Peart J.’s order granting leave had included no such direction. It therefore imposed no stay on the social welfare process and did not require officials to take or refrain from any particular step.
The Supreme Court stressed that the judicial review itself remained limited to whether it was premature for the Appeals Officer to refuse an oral hearing before Kavanagh had submitted written grounds of appeal. The original social welfare decision’s correctness or lawfulness was not before the court, which expressed no view on whether Kavanagh was genuinely seeking employment or whether the relevant social welfare decision was lawful.
The court recommended that the High Court case be case-managed and brought to an early hearing. It said any new request for an injunction based on later events should be made first in the High Court. A separate injunction application initiated in the Supreme Court in March 2015 no longer arose after both appeals were dismissed.