Leave to seek judicial review should have been granted where the grounds had been considered arguable in another case

Dunne J (nem diss): Three related claims by judicial review - refusal of asylum - refusal of leave in High Court ex parte - respondent put on notice of appeal to Court of Appeal - refusal of certificate of leave to appeal - 'leapfrog' appeal to Supreme Court - whether it was arguable that the Refugee Applications Commissioner (RAC) had not carried out the investigation required - s.11 of the Refugee Act, 1996 - whether trial judge had properly applied the law concerning the obligation not to depart from a decision of a colleague judge of the same rank - investigation carried out by "case processing panel of legal graduates" - delegation of function of Refugee Applications Commissioner - leave granted on same point by other judge of High Court.

"It is the contention on behalf of the appellants that the RAC has unlawfully delegated the function under s. 13 to contractors, as opposed to members of the staff of the RAC. The point made on behalf of the respondent is that the process of gathering information pursuant to s. 13 can properly be carried out by assistants. It is further pointed out that the fact that the RAC approves the narrative provided by the contractor does not mean that the RAC did not investigate the application.
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Whether the steps taken by the contractor in a s. 13 investigation is ultimately found to be an unlawful delegation or not can only be determined on an application for judicial review, having heard evidence and argument from both sides. Thus, it seems to me that the point raised on behalf of the appellants in this case is one which meets the test provided for in McNamara referred to above and I am satisfied that the grounds raised by the appellants are reasonable, arguable and weighty and are not trivial or tenuous.
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Nevertheless, in circumstances where one judge of the High Court has granted leave to apply for judicial review on a net legal issue which arises in more than one case, it is difficult to see how the requirements of judicial comity would permit another judge of the same level to express a different view on an ex parte application for leave to apply for judicial review. The point having been raised in a number of cases in which leave has been granted seems to me to merit the grant of leave in all cases where the same issue of law arises unless there is a cogent reason for not doing so."

O'Donnell J (concurring): Whether the issue of an earlier determination by the High Court was necessary to be determined - whether a matter of guidance rather than a rule - judicial humility.

"I also agree that what was involved here raised questions of prudence, practicality, and the necessity for judicial humility: the recognition that it is possible that the decision which seems obvious might be wrong. It is difficult to see (especially in the circumstances which have transpired) that the simpler route would not have been to have granted leave, even while expressing doubts as to the merits of the point and its substance. That would have allowed all the cases raising this point to be decided in the High Court giving rise if necessary then, to a single appeal to the Court of Appeal and/or if appropriate to this Court. Any appeal would then seek to ensure that all cases were aligned and treated in the same way, I also agree with Dunne J. that in addition there are important considerations in play, derived from the requirement that citizens be held equal before the law. An understandable sense of injustice at inconsistent treatment of the same issue, and an unavoidable sense that the administration of justice has been arbitrary, can too easily follow from diametrically opposed judgments on the same issue, particularly if not the subject of detailed reasons."

"However, these are considerations of prudence and practicality. The rule as I conceive it, is that a court is not bound by the decision of a court of coordinate jurisdiction in such a way that the subsequent court must as a matter of law or stare decisis follow the first decision."