A Supreme Court judge said he would refuse Michael Rowan’s application for leave to appeal, citing the delay and the entitlement of Kerry County Council and notice party Timothy Mulvihill to treat the underlying matter as determined.
In a judgment delivered on 30 January 2018, O’Donnell J said he would not extend time for the application. He also said he would not consider it appropriate for the court to exercise its jurisdiction in the case. He agreed with the orders proposed by Dunne J, whose judgment was to set out the facts and procedural background.
The application arose from a High Court decision made almost six years earlier. O’Donnell J said the unusual procedural history meant the oral hearing focused on jurisdiction. Earlier panels had considered the legal significance of the issue Rowan sought to appeal and the question of extending time.
The judgment discussed the effect of the 33rd Amendment, which introduced a route for leapfrog appeals to the Supreme Court. O’Donnell J said the amendment did not revive controversies already determined. He noted that the underlying case had proceeded without an application to the High Court judge for a certificate, which had previously been required for an appeal on a point of law of exceptional public importance. He described launching the appeal without even a precautionary certificate application as, at minimum, misconceived.
O’Donnell J said that meeting the constitutional threshold for an appeal did not require the Supreme Court to grant leave in every case. The court retained discretion over whether to exercise its jurisdiction. He declined to set a bright-line jurisdictional rule, preferring to address the issue through discretion.
The supplied judgment is O’Donnell J’s opinion and records his agreement with Dunne J’s proposed orders. It does not include Dunne J’s judgment or the text of the court’s formal order, so the precise collective disposition is not set out in this source.