[2002 No. 357 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Between:
McD
Applicant
and 

THE COMMISSION TO INQUIRE INTO CHILD ABUSE 
and THE INVESTIGATING COMMITTEE
Respondents

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 7th February, 2003.

	This is an application brought by the respondents to discharge an order made by this Court (Murphy J.) on the 24th June, 2002, giving the applicant leave to apply by way of an application for judicial review to seek the relief of an order of certiorari quashing the decision of the first respondent (hereinafter referred to as ‘the Commission’) dated the 24th October, 2001 refusing the applicant’s request to give evidence to the second respondent (hereinafter referred to as ‘the Investigating Committee’).

In the applicant’s grounding statement he sought the relief of an order pursuant to O. 84 r. 21 (1) of the Rules of the Superior Courts, 1986 extending the period for the relief sought in these proceedings. 
The grounds upon which the applicant was given leave are as follows:
1.	By virtue of the Commission to Inquire into Child Abuse Act, 2000 (hereafter also referred to as the Act of 2000), the respondent, the Commission to Inquire into Child Abuse (hereafter referred to as “the Commission”) was established and is a body corporate with perpetual succession with power to sue and be sued in its corporate name.
2.	Section 1 of the Act of 2000 provides that the relevant period means the period from and including the year 1940 or such earlier year as the Commissions may determine to and including the year 1999 and such later period (if any) as the Commission may determine.
3.	Section 4 of the Commission to Inquire into Child Abuse, 2000 provides that the principal functions of the Commission are (subject to the provisions of the Act):-
(a)	to provide, for persons who have suffered abuse in childhood in institutions during the relevant period, an opportunity to recount the abuse, and make submissions, to a Committee 
(b)	through a Committee:
•	to inquire into abuse of children in institution during the relevant period;
•	where it is satisfied that such abuse has occurred, to determine the causes, nature, circumstances and extent of such abuse;
•	without prejudice to the generality of any of the foregoing, to determine the extent to which (the institutions themselves in which such abuse occurred, the systems of management, administration, operation, supervision, inspection and regulation of such institutions, and, the manner in which those functions were performed by the persons or bodies in whom they were vested) contributed to the occurrence or incidence of such abuse and to prepare and publish reports.
4.	The aforementioned inquiry is to be conducted in such manner and by such means as the Commission considers appropriate.
5.	Section 4(3) of the Commission to Inquire into Child Abuse Act, 2000 provides that the Commission shall have all such powers as are necessary or expedient for the performance of its functions.
6.	Section 4(5) of the Commission to Inquire into Child Abuse Act, 2000 provides that the Commission may invite and receive oral or written submissions.
7.	Section 4(6) of the Commission to Inquire into Child Abuse Act, 2000 provides that in performing their functions the Commission and the Committees shall bear in mind the need of persons who have suffered abuse in childhood to recount to others such abuse, their difficulties in so doing and the potential beneficial effect on them of so doing and, accordingly, the Commission and the Committees shall endeavour to ensure that meetings of the Committees at which evidence is being given are conducted so as to afford to persons who have suffered such abuse in institutions during the relevant period an opportunity to recount in full the abuse suffered by them in an atmosphere that is as sympathetic to, and as an understanding of, them as is compatible with the rights of others and the requirements of justice, and as informally as is possible in the circumstances. 
8.	Section 7 of the Commission to Inquire into Child Abuse Act, 2000 provides for meetings and the procedure of the Commission. 
9.	Section 10 of the Commission to Inquire into Child Abuse Act, 2000 provides that on the establishment day there shall stand established a committee of the Commission which shall be known as the Confidential Committee and a committee of the Commission which shall be known as the Investigation Committee.  The meetings and procedures of the Committees are provided for in s. 11 of the Act of 2000 which inter alia provides that a Committee may invite and receive oral or written submissions.
10.	Section 12 of the Act of 2000 provides that the principal functions of the Investigation Committee are (subject to the provisions of the Act):
•	to provide, for reasons who have suffered abuse in childhood in institutions during the relevant period, an opportunity to recount the abuse and make submissions to the Committee;
•	to inquire into the abuse of children in institutions during the relevant period;
•	to determine the causes, nature, circumstances and extent of such abuse; 
•	to determine the extent to which the institutions themselves in which such abuse occurred, the systems of management, administration, operation, supervision and regulation of such institutions and the manner in which those functions were performed by the persons or bodies in whom they were vested, contributed to the occurrence or incidence of such abuse and to prepare and furnish reports.
11.	Section 12(2) of the Act of 2000 provides that the Investigation Committee shall have all such powers as are necessary or expedient for the performance of its functions. Section 13 of the 2000 Act makes provisions for the report of the Investigation Committee and s. 14 of the Act of 2000 provides for the powers of the Investigation Committee.
12.	Section 15 of the Act of 2000 provides that the principal functions of the Confidential Committee are (subject to the provisions of the Act):
•	to provide, for persons who have suffered abuse in childhood in institutions during the relevant period and who do not wish to have that abuse inquired into by the Investigation Committee, an opportunity to recount the abuse, and make submissions, in confidence to the Committee,
•	to receive evidence of such abuse,
•	to make findings of a general nature, based on the evidence and to prepare and furnish reports.
13.	Similarly s. 15(2) of the Act of 2000 provides that the Committee shall have all such powers as are necessary or expedient for the performance of its functions.
14.	Section 23 of the Act of 2000 provides for the appointment of inquiry officers by the Commission and details their particular functions including inter alia the carrying out of a preliminary inquiry.
15.	The long title to the Commission to Inquire into Child Abuse Act, 2000 inter alia states that the Commission is to investigate child abuse in institutions in the State, to enable persons who have suffered such abuse to give evidence to the Commission’s Committees, to provide for the preparation and publication of a report by the Commission containing the results of its investigation and any recommendations it considers appropriate for the prevention of child abuse, the protection of children from it and the actions to be taken to address any continuing effects of child abuse on those who have suffered it.
16.	By the manner in which it carries out its functions proceedings, procedures, discretions and adjudications the Commission, its Committees are authorised officials, are required to comply with the requirements of natural and constitutional justice and fair procedures.
17.	The decisions of the respondents dated the 12th September, 2001 and 24th October, 2001 in refusing the applicant an opportunity to give evidence to the Investigation Committee represent a denial of fair procedures and natural and constitutional justice.
18.	Arising from the provisions of the Commission to Inquire into Child Abuse Act, 2000 (including the provisions set out above) and the contents of the grounding affidavit in these proceedings, the applicant has a legitimate expectation(s) that he would be entitled to and/or afforded every opportunity to give evidence to the Investigation Committee. 
19.	Further and/or in the alternative arising form the correspondence entered to with, and received from, the Commission and the contents of the ‘Request to meet the Investigation Committee’ the applicant has a legitimate expectations(s) that he would be entitled to and/or afforded every opportunity to give evidence to the Investigation Committee.
20.	In the premises the applicant has a legitimate expectation that the respondents would afford him every reasonable opportunity to give evidence to the Investigation Committee and vindicate his constitutional right to procedural fairness.
21.	In its decision dated the 12th September, 2001 the Investigation Committee stated that while the closing date for receipt of requests to give evidence to the Investigation Committee was the 31st July, 2001, the Commission had allowed a period of grace up to the 10th August, 2001 to take account of postal ‘and like exigencies.’  Given the detailed explanation set out by the applicant’s solicitor, the reasonableness of the request and the particular time periods involved the decisions of the Commission and Investigation Committee dated the 12th September, 2001 and 24th October, 2001 were ultra vires and/or were in breach of the statutory objectives of the Commission to Inquire into Child Abuse Act, 2000 and/or were in breach of the applicant’s right to fair procedures in the circumstances.  
22.	Further and/or in the alternative and without prejudice to the aforementioned, the decisions of the respondents dated the 12th September, 2001 and 24th October, 2001 in refusing the applicant an opportunity to give evidence to the Investigation Committee is unreasonable in the circumstances. 
23.	The manner of the respondents decision refusing the applicant’s request for an opportunity to give evidence (and in particular the reason set out in paras. (a), (b), (c) and (d) of its letter dated the 24th October, 2001) offends against the principle of proportionality and/or amounts to an unlawful fettering of its statutory powers given that the relevant statutory period for substantive complaints is the period from and including the year 1940 or such earlier year as the Commission may determine to and including the year 1999 and such later period as the Commission may determine.
24.	Given the serious sensitive nature of the matters referred to herein, the within application has been made promptly in all the circumstances.
25.	In the alternative, the affidavit and exhibits grounding this application for judicial review set out good reason(s) why this Court should extend the period for the seeking the reliefs sought. 

The essential basis upon which this application is brought is that there was no basis advanced by the applicant to this Court at the state of applying for leave such as could constitute ‘good reason’ for extending the period within which the application for leave should be made, having regard to the primary obligation contained in O. 84 r. 21(1) that an application for leave to apply for judicial review be made promptly and within six months of the date when grounds for the application first arose insofar as the relief sought is certiorari.
The respondents apply not based merely upon technical non-compliance with the Rules but stress that these proceedings seek to challenge a decision of the respondents to enforce a final deadline for the notification of intention to give evidence to the Commission, which deadline was missed by the applicant. The respondents rely upon the fact that this deadline was conceived and imposed so as to lead to finality in the proceedings of the respondents and having regard to the rights of other persons involved in their processes.  The respondents rely upon the fact that the applicant was advised that his application to the Commission was not being accepted some nine months before he sought leave for judicial review of the decision.  On this basis it is submitted that there was a particular onus on the applicant to apply to the Court promptly.
The applicant applied ex parte to Murphy J. on the 24th June, 2001 for leave and the only matter advanced in the grounding affidavit of his solicitor in the verifying affidavit filed at the time which might have been advanced as a reason for the court to extend time for the bringing of the application ex parte was a statement at para. 17 of the affidavit of Gerald Griffin which reads:
“17.  The applicant has been attending a psychotherapist for the past five years. However, recently he has experienced suicidal tendencies and I say and believe that he would have proceeded to take his life but for the intervention of his wife and the gardaí.  The recent and widely publicised revelations of child abuse have and the demonstration outside the bi-centenary celebration of the Christian Brothers have in particular exacerbated his condition.”

The grounding affidavit of Gerald Griffin refers to the applicant’s history and the fact that at a meeting on the 24th June, 2001 the applicant instructed him that during his childhood and whilst he was a resident-inmate of three state run institutions he was physically and sexually abused by certain members of staff of those institutions.  As a result of this and on the applicant’s instructions he issued High Court proceedings on his behalf claiming damages for injury caused to him as a result of the said abuse.  Mr.Griffin says that he informed the applicant that the Commission had been established and that the applicant expressed a wish to recount his experiences to the Commission.  Mr. Griffin indicates the steps taken by him to obtain the necessary forms and that he noted the expiry date for receipt of completed request forms was the 31st July, 2001.  Mr.Griffin outlines the circumstances in which the deadline was missed by the applicant and the fact that he did not learn until it was too late that the Commission had allowed a ‘period of grace’ of up to the 10th August, 2001 to take account of postal delays and the like. In fact it was not until the 23rd August, 2001 that he sent the completed form of request to the Commission by courier.  He was informed by letter of 12th September, 2001 from the Commission that the applicant’s request was refused on the grounds that it was out of time and of the period of grace that had been allowed.  Mr. Griffin indicates that following receipt of this letter he telephoned the Commission in an effort to urge upon it what he describes as ‘the special and particular circumstances’ of the applicant’s request and that it was suggested to him by a member of the Commission’s staff that he might make a further written submission asking the Commission to receive his client’s request.  This he did by letter of 11th October, 2001.  This was replied to by letter of the 24th October, 2001 whereby the Commission returned the request form to him and declined the applicant’s request for reasons set out in the letter.
	Mr. Griffin says that the letter of refusal from the Commission stresses the necessary pressing reasons for adherence to time limits in the work of the Commission.  He says that save for issues of time it fails to address his submission. He advances reasons why he believes the Commission failed to properly consider his clients application for late delivery of his request to give evidence.  He adds that the refusal of the Commission is causing the applicant great emotional distress and upset.
	A Statement of Grounds of Opposition has been filed on behalf of the respondents.  While it sets forth specific grounds in opposition to the grounds advanced on behalf of the applicant, at paragraphs one to three thereof it is pleaded as follows:
1.	The decision which the applicant seeks to impugn in the within proceedings was made and notified to the applicant on or about 12th September, 2001 and confirmed on 24th October, 2001.  The application for leave to seek judicial review herein was made on or about 24th June, 2002.  The application has thus failed to comply with the provisions of 
O. 84 r. 21(1) and/or has failed to seek the within relief promptly.  The applicant has tendered no reason to the Court for the aforesaid delay and the respondents have been prejudiced or shall be prejudiced in or about the discharge of their statutory functions as a consequence of this delay.  In the premises, the applicant is not entitled to the relief claimed herein.
2.	In particular (and without prejudice to the generality of the foregoing) the Order granting the applicant leave to seek judicial review herein does not on its face extend the period within which the application for leave to seek judicial review shall be made, as required by O. 84 r. 21(1) of the Rules of the Superior Courts, and the applicant has failed as required by the said provision to show any good reason for extending such period.
3.	The within Statement of Opposition is delivered without prejudice to the right of the respondents to apply at or before the hearing hereof for orders striking out and/or setting aside the grant of leave herein consequent upon the aforesaid non-compliance by the applicant with the provisions of 
O. 84 r. 21 and/or his delay in seeking the relief claimed.  
An affidavit verifying the Statement of Opposition was sworn by Pat Curley, Registrar of the Commission in which the applicant’s delay is addressed as follows:
3.	As is apparent from the Statement of Grounds herein the decision which it is sought to impugn in these proceedings was made by the second named respondent on the 12th September, 2001 and was confirmed on the 24th October, 2001. that decision comprised a refusal to accept the applicant’s request to give evidence to the Investigation Committee on the basis that it was not received within the time limit stipulated by the Commission to Inquire into Child Abuse (hereafter ‘the Commission’).  The correspondence of the 24th October, 2001 was in fact a mere repeat of the original determination and I am advised and believe that the actual relief sought by the applicant herein is directed to the former decision. 
4.	It will be apparent that that decision was made nine months before the applicant proceeded to seek leave from this Court to seek judicial review herein.  No explanation is proffered in the affidavit of Mr. Griffin or this delay.  In fact there was no correspondence from nor communication from the applicant or his adviser in relation to the matters in issue in these proceedings, between 11th October, 2001, and the receipt by the Commission of the pleadings herein.
5.	The determination which was made by the Commission and which it is sought to impugn herein arose from the fact that the Commission imposed time limits for the receipt of requests by persons to give evidence to the committees of the Commission.  Those time limits were reasonable and, as I will explain later in this affidavit, were advertised well in advance of the expiry thereof they existed for a particular purpose, namely to ensure that at a particular point in time the Commission would be in a position to know of all complaints with which it would have to deal, and – of course – to notify the various persons against whom allegations were made by those persons of that fact.  It was also a requirement viewed by the Commission as being necessary to operate within the statutory time frame imposed upon the Commission to ensure that the rights of persons responding to such allegations were respected and was overall in the interest of persons who wished to give evidence to the Commission.
6.	The applicant failed to comply with those time limits.  I do not believe that the respondents acted in any way unreasonably in refusing the applicant’s application to give evidence, his having so failed to comply with the well advertised time limits imposed by the Commission.   However, for the applicant now nine months after the event to seek to disturb the respondents’ decision, not least of all in circumstances in which no reason is given for this delay in moving this Court will cause the respondent some considerable inconvenience.  Thus, in all the circumstances, I say believe and am advised that the applicant should not be entitled to seek the relief claimed herein consequent upon the failure to comply with the Rules of the Superior Courts and/or to act promptly in connection with his complaint herein.  This, of course, is all the more so in a context where the decision which he seeks to impugn was itself one arising from the delay of the applicant in notifying this intention to give evidence in the first place.  The within affidavit and Statement of Opposition delivered by the respondents herewith are without prejudice to this overriding objection to the within application.
The respondents thereafter caused the within notice of motion to issue on the 12th September, 2002, which was initially returnable for the 21st October, 2002.  This motion is grounded upon the affidavit of Michael Crowe, Solicitor, of Daly, Lynch, Crowe and Morris, solicitors for the respondents. He traces the recent history of these proceedings and expresses the view that the applicant’s delay should be viewed in the context of the complaint which has given rise to these proceedings and in the light of the nature of the functions which are being discharged by the Commission. This affidavit is essentially devoted to submissions or argument and not to statements of fact.
In reply to this affidavit, Mr. Gerald Griffin has sworn an affidavit filed the 19th October, 2002, in which he states that the reasons for the delay in instituting these proceedings were:
(a)	He was doubtful as to the likely successful outcome of such an application for judicial review and would have agreed initially with the view expressed by Mr. Crowe that the time limits in issue in these proceedings were imposed for good reason;
(b)	The applicant had informed him that he had written personally to the President of Ireland on the 1st January, 2002, in the hope that she might be able to intervene with the respondents on his behalf.  On the 18th April, 2002 the applicant advised Mr. Griffin that he had received an acknowledgment of his letter to the President by way of letters from the offices of the Minister for Education and Science and the Minister for Justice, Equality and Law Reform. Apart from these acknowledgements he had no further communication.
(c)	The applicant also advised him of a recent deterioration in his mental health.
(d)	At this stage he sought the opinion of counsel although the period provided for by O. 84 r. 21 (1) of the Rules had just expired.

Mr. Griffin refers to a letter from the applicant’s treating psychiatrist dated 16th August, 2002 who has expressed his opinion that the giving of the applicant’s account of his experiences to the Commission would be beneficial to the applicant.  
	Mr. Griffin expresses the view that the potential prejudice to the respondents’ statutory functions, to their processes and to those persons against whom the applicant may make allegations is at a minimum.
	The applicant has sworn an affidavit in which he indicates the circumstances in which he handed a letter to the Aide de Camp to the President on New Years Eve. However, it appears from the letter itself that it is dated 1st January 2002. He states that on 22nd February, 2002, he was so depressed that he decided to take his own life but he was persuaded by his wife to attend his doctor who prescribed him antidepressant medication and referred him to his psychiatrist.  He states that it took him some time to get over this and that it was not until 18th April, 2002 that he had a further meeting with his solicitor to review his case. He says that prior to this he would not have been able to discuss any of these matters with his solicitor without interrupting his recovery. 

Submissions

	On behalf of the respondents, Mr. Brian Murray S.C. having referred to the facts of the case, submits by reference to O’Donnell v. Dun Laoghaire Corporation (No. 2) [1991] ILRM 301, that the applicant has failed to show good reason for not applying promptly and in any event within the six month period commencing on the 24th October 2001. In this case Costello J. indicated as follows, at p. 315:
“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.”
It is indicated that this statement was approved by the Supreme Court in Slatterys Ltd.  v. Commissioner of Valuation [2001] 4 I.R. 91, at p.98.
Counsel refers to the dictum of Hederman J. in O’Flynn v. Mid Western Health Board [1991] 2 I.R. 223 at p. 236 where he stated:
“Where the time limit prescribed by the rules of court has passed (as was the case here) the judge should be furnished with the reasons for the delay in the grounding affidavit and he should decide whether there are grounds for excusing the delay.  Even if leave is granted at the ex parte stage, nonetheless, when the trial judge comes to hear the matter he must adjudicate on whether the delay was reasonable and such as may be excused or not.” 
This approach is somewhat qualified by the decision of the Supreme Court in the case of Slatterys Ltd.  v. Commissioner of Valuation [2001] 4 I.R. 91 where at p. 98 Keane C.J. indicated that “the trial judge at the substantive hearing must adjudicate, if asked so to do, on whether the delay was reasonable and such as might be excused or not.” (emphasis added).
Counsel further refers to the judgment of Denham J. in De Róiste v. Minister for Defence [2001] 1 I.R. 190 where she indicated factors which a court may take into account in determining whether there is good reason to extend time or to allow judicial review.  The factors identified were instanced as follows: (i) the nature of the order or actions the subject of the application; (ii) the conduct of the applicant; (iii) the conduct of the respondents; (iv) the effect of the order under review on the parties subsequent to the order being made and any steps taken by the parties subsequent to the order to be reviewed; (v) any effect which may have taken place on third parties by the order to be reviewed; (vi) public policy that proceedings relating to the public law domain take place promptly except where good reason is furnished.  It was indicated that this list is not exhaustive and that the discretion of the court has ever been to protect justice.
With regard to the words of McCarthy J. in The State (Furey) v. Minister for Justice [1988] ILRM 89 at p. 100, where he stated, inter alia, as follows:
“… I see no logical reason why delay, however long, should of itself, disentitle to certiorari any applicant for the remedy who can demonstrate that a public wrong has been done to him – that, for instance, a conviction was obtained without jurisdiction, or that, otherwise, the State has wronged him and that the wrong continues to mark or mar his life.”
Denham J. indicated that the obiter dicta in question do not indicate an absence of discretion in the court. She considered that the words were not an absolute statement that delay cannot disentitle an applicant, but rather it should not, “of itself” disentitle an applicant.
	As the relief sought in this application is not an extension of time, but rather an order setting aside the order granting leave, counsel refers this court to the decision of the Supreme Court in Adam v. Minister for Justice [2001] 2 ILRM 452, where the court indicated the circumstances in which an order made ex parte by the High Court granting leave may be set aside. There the Supreme Court indicated that the court had discretion to set aside leave if it was satisfied on inter partes argument that the leave was one which plainly should not have been granted. In her judgment at p. 469 of the report McGuinness J. indicated that “…this jurisdiction should only be used very sparingly and in a very plain case.”
	As to whether the relief sought to set aside should ever be granted where there has been delay on the part of the applicant in moving for leave, counsel refers this court to the decision of the Queen’s Bench Division in R. v. H.M. Customs and Excise, ex p. Eurotunnel (The Independent, 17 February, 1995).
	In this case the Queen’s Bench Division set aside an order giving leave to Eurotunnel to challenge decisions of the Commissioners for Customs and Excise.  An application was brought on behalf of parties directly affected by the order granting leave, to have the leave set aside.  The Court considered whether the application had been moved promptly and ruled that it had not. It accepted that it had jurisdiction to set aside the order granting leave on the basis of the delay complained of.  The Court ruled that it would set aside the order granting leave unless there were grounds for extending the period.  It then addressed the grounds advanced for extending the period and considered the position of the parties directly affected and concluded that save for a limited aspect of the order granting leave that it would set aside the order.
	Counsel referred to the form of order made by Murphy J. in the instant case and the fact that on its face it does not appear that the Court extended the time for granting leave to the applicant.
	Counsel submitted that it was manifest on the affidavit grounding the application that there was nothing advanced which could constitute “good reason for extending the period within which the application shall be made.”
	With regard to the reasons advanced by the applicant in response to the motion brought by the respondents, it is submitted that the same do not constitute good reasons for extending the period, and in the circumstances that this Court should set aside the leave. It is submitted that the affidavits filed disclose no good ground at this stage for extending the period.  It is submitted that the matters advanced are reasons why the application was not moved in the first place and that the further grounds advanced cannot constitute good reason.
	In reply it is submitted by Mr. Dodd of counsel that no evidence of prejudice has been shown by the respondents and that this is the relevant factor to be addressed.  It is submitted that insofar as the respondents have advanced a suggestion of prejudice to their operations and procedures that this must be negligible in the context of the whole work of the respondents.  It is further submitted that the delay argument can be raised at the substantive hearing by the respondents and any other party directly affected.
	Counsel refers to the authorities of Adam v. Minister for Justice [2001] 2 ILRM 452 and Gordon v. Director of Public Prosecutions (Unreported, Supreme Court, 7th June, 2002) Counsel refers to the fact that in no other reported case has leave been set aside in this jurisdiction based on delay and on this basis it is submitted that the grounds of delay are outside the established jurisprudence of the courts to set aside an order giving leave in judicial review proceedings in Ireland. On this basis it is submitted that this is an issue that should be left to the substantive hearing of the motion for judicial review.
	Counsel advances a number of reasons why this Court should refuse the respondents’ motion.  It is submitted that the delay in the present case is not excessive or extraordinary.  Furthermore, it is submitted that there are good reasons to extend time in this case. Counsel submits that the applicant has not been personally to blame for the delay complained of; the proceedings  have grave importance for the applicant, which is important to his psychological well being; the applicant had taken other steps to resolve matters though political channels, and there is no real prejudice to the respondents or to third parties.
	Counsel submits that there is a public interest element in evidence such as that of the applicant being given.
	Counsel refers to the reason why the application was not brought at an earlier stage- namely the advice given to the applicant.  Counsel refers to the decision of the Supreme Court in S. v. Minister for Justice (unreported, Supreme Court, 5th March, 2002) which concerned an application to extend time for leave under the terms of the Illegal Immigrants (Trafficking) Act, 2000.  Counsel refers to that portion of the judgment of Denham J. at p. 4, point 11 where it was indicated that the delay at issue was essentially that of the legal advisors. While Denham J. indicated that in general delay by legal advisors will not prima facie be a good and sufficient reason to extend time, it is submitted that in the light of the initial advice given to the applicant this must be a sufficient reason to extend time in the instant case. In her conclusions Denham J. indicates the factors which influenced the Court in extending time and these included “…that the reasons for the delay are largely the culpability of legal advisors.”
	Counsel refers to R. v. Stratford on Avon District Council, Ex.p. Jackson [1985] 1 W.L.R. 1323 in the context of the other steps taken by the applicant, including writing to the President. In that case at p. 1323 of the report the Court of Appeal indicated that it would not criticise the applicant for seeking the intervention of the Secretary of State for the Environment, in circumstances where the Court stated that it accepted that the prospect of the Secretary of State intervening was remote.
	Counsel refers to the applicant’s psychiatric problems and indicates that this must be an effect of the decision itself. Counsel stressed the medical opinion that it would be beneficial for the applicant to be able to be heard.
	While counsel for the respondent had referred to the existence of the redress committee and the fact that the applicant still had an opportunity of being heard by it, he submitted that this was irrelevant to the instant case.
	In reply counsel for the respondents stresses that this is still a case where it is clear that nothing had been advanced to the High Court granting leave which would have entitled the court to grant leave.  While the applicant stresses that he did nothing wrong, the essential fact is that he delayed in moving to this Court.
	While the applicant seeks to blame his legal advisor there is no suggestion of any fault on his part in tendering the advice which he gave to the applicant following upon the respondents decision in October, 2001.  While the applicant wrote to the President there is no suggestion that at the time a decision to proceed to the court was being shelved to await the outcome of the approach to the President.  It is submitted that the medical evidence before the court does not show that the applicant was precluded from applying to the court at an earlier stage by reason of his condition. It is submitted that on the evidence it is clear that a decision had been taken not to apply to the High Court long before February, 2000.
	Counsel says that it is up to the applicant to choose if he wishes to make application under the Residential Institutions Redress Act, 2000.
	With regard to the delay, counsel submits that a decision to set aside the leave at this stage will save time and expense, including the discovery which the applicant has indicated he proposes to seek.  Counsel stresses that there will be prejudice to the administrative operations of the respondents which are public bodies and that in this context over 1800 statements have been received by the respondents from applicants.  Furthermore, counsel submits that the respondents are not required to show prejudice at this stage to succeed.  With regard to the suggestion that the Court should extend time on the basis that the Court has already concluded that the applicant has an arguable case, counsel refers to the fact that the Supreme Court refused the relief sought in The State (Cussen) v. Brennan [1981] I.R. 181, notwithstanding the fact that it concluded that the decision in question was unlawful.

Conclusion

	It is important to note that this Court is not concerned with the merits of the applicant’s case for judicial review insofar as it has already been determined that he has established an arguable case in regard to the impugned decision.  
	While the order drawn up following the decision of Murphy J. suggests that he did not extend time but gave leave for an extension of time, this Court must consider that he did in fact purport to extend the time and no reliance is accordingly placed on the form of the order in question.
	It is clear, when one considers the matters put forward in the initial affidavit of Mr. Griffin, that what was advanced in same cannot constitute good reason for not applying promptly and for extending the time under O. 84 r. 21.  However, I am satisfied that in considering an application such as this, this Court should not limit itself to the material advanced to the High Court at the leave application, but may, in the exercise of its discretion, consider other grounds advanced.
	I am conscious of the personal difficulties which the applicant has experienced.  However, I do not consider the approach of writing to the President of Ireland to have been an alternative approach to applying to this Court for leave and it cannot be considered as equivalent to the approach of other parties in other cases who pursued what might be described as a political route.  It is clear that the applicant took an initial decision in or about the month of October, 2001 not to seek to challenge the decision of the Commission by way of an application for judicial review.
	I am satisfied furthermore, that while the applicant’s psychiatrist has indicated that it may be beneficial to his health if the Commission were to entertain his complaint, this cannot constitute good reason to extend time.  
	I am satisfied that delay in applying to the Court for leave can constitute a ground upon which leave will be refused and I am also satisfied that it may be a central factor in an application such as this.  However, in light of the observations of Denham J. in De Róiste v. Minister for Defence [2001] 1 I.R. 190, I am satisfied that while delay of itself may not be sufficient for this court to set aside an order granting leave, it is a matter that may be addressed in light of other circumstances in the case.
	I am satisfied, in approaching the instant case, that it is not sufficient merely to have regard to the period in question but to consider the delay in the circumstances of this case.  In this regard the fact that in other cases the court may have extended time after a much greater passage of time is irrelevant.  I believe that the delay in the instant case has to be seen in the context of the nature of the impugned decision which was one following the application by the Commission of a time limit.  It is clear that this is a particular feature of this case and the delay in applying to this court must be seen in the context of the manner in which the Commission has sought to regulate its affairs.  While I am conscious of the purposes for which the Commission has been established, in setting time limits it has sought to regulate its affairs. In so acting it indicated to the potential complainants and potential respondents to allegations of abuse that there would be a ‘cut-off’ point at the end of July 2001.
	While it is submitted that the prejudice to the respondents must be minimal, I am satisfied that were the applicant permitted at this stage to proceed with his application it will result in a further delay which will possibly not be resolved until after an appeal from this decision.  In all the circumstances it is likely that a period of close on two years will have elapsed from the date of the initial time limit and I am satisfied that this will result in prejudice not only to the respondents but also as a matter of probability it will result in prejudice to those against whom complaints may be made (assuming that they are alive) in circumstances where it has not been established that they bear any responsibility for the delay of the applicant in these proceedings.
	While the respondents might have brought this application before filing a statement of opposition, I am satisfied that in the manner in which this application was signposted in the opposition filed and was brought very soon thereafter, it cannot be said that the respondents are disentitled by delay in moving to this court for the relief which they seek.
	While delay is indeed a factor that may be addressed at a substantive hearing, I am satisfied that this fact is not such as to disentitle the respondents to the relief which they seek in the circumstances of this case.
	With regard to what the applicant advances as good reason for an extension of time, I am conscious that the considerations advanced by Denham J. in De Róiste v. Minister for Defence [2001] 1 I.R. 190  are not exhaustive and in fact may be more readily assessed in a substantive hearing.  Nevertheless, insofar as the applicant has approached this application by reference to the headings advanced by Denham J. I propose to examine the same matters in this application, insofar as they have not already been addressed by me in this judgment.
	With regard to the nature of the action the subject of the application, one must bear in mind that this was the application of a time limit itself and I am satisfied that this is a factor in assessing whether the applicant has moved promptly in the first place and furthermore whether time should be extended.
	With regard to the conduct of the applicant I am satisfied that he initially decided not to move to this court to seek leave for judicial review, and did so in light of the legal advice available to him at the time.  I am satisfied that this shows that the subsequent ill health of the applicant was not the reason why he did not apply promptly to this Court but it may well have delayed the ultimate application.  As indicated herein, I am satisfied that the action of writing to the President was not such as to excuse the delay in moving to this court promptly and in any event within the period of six months.
	While I have addressed to some extent the issue of prejudice, I am satisfied that the respondents will be prejudiced to a limited extent if the issue of delay is left over to the substantive hearing in this case.  However, if I considered that on the facts of this case there were real issues to be resolved in regard to the matters advanced by the applicant as constituting good reason for an extension of time I would be disposed to allow the matter to continue to the substantive hearing, I am satisfied on the uncontroverted material advanced by the applicant, that he has failed to establish good reason why the time should be extended in these proceedings and I am satisfied that in my discretion I should grant to the respondents the relief which they seek.