O'Brien v Mr. Justice Michael Moriarty
|Mr. Justice Herbert
|26 November 2004
| IEHC 362
|26 November 2004
 IEHC 362
THE HIGH COURT
CONSTITUTION ART 40
& FUNDAMENTAL FREEDOMS
O'CALLAGHAN V MAHON & ORS (PLANNING TRIBUNAL) UNREP O'NEILL 7.7.2004
MCDONNELL V BRADY
G V DPP
GOODMAN INTERNATIONAL V HAMILTON
RSC O.84 r20(2)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(b)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S82
RSC O.84 r20(7)
GARDA REPRESENTATIVE ASSOCIATION V IRELAND UNREP SUPREME 18.12.1987
CAMPUS OIL LTD V MIN FOR INDUSTRY (NO 2)
MASS ENERGY LTD V BIRMINGHAM CITY COUNCIL 1994 ENV LR 298
R V COTSWOLD DISTRICT COUNCIL EX PARTE BARRINGTON PARISH COUNCIL 75 P & CR 515
R (PORTLAND PORT LTD) V WEYMOUTH & PORTLAND BOROUGH COUNCIL 2001 EWHC ADMIN 117
R V DERBYSHIRE CO COUNCIL EX PARTE WOODS 1997 JPL 958
GORMAN V MIN ENVIRONMENT
CUSSEN, STATE V BRENNAN
RSC O.84 r21(1)
KSK ENTERPRISES LTD V BORD PLEANALA
ETHICS IN PUBLIC OFFICE ACT 1995
KING V WHITAKER
REDMOND V FLOOD
HAUGHEY, IN RE
GOODMAN V HAMILTON
KIELY V MIN SOCIAL WELFARE
TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921
TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979
HAUGHEY V MORIARTY
MURPHY V FLOOD (PLANNING TRIBUNAL)
TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S2(a)
BAILEY & ORS V FLOOD UNREP MORRIS 6.3.2000 2000/2/457
TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 s1(1)(a)
LAWLOR V FLOOD
Tribunal of Inquiry - Judicial review - Fair procedures - Mandamus - Whether the applicant was guilty of such delay that he should be debarred from obtaining relief by way of Judicial review.
The respondent was the sole member of a Tribunal of Inquiry into payments made to Mr. Charles Haughey and Mr. Michael Lowry. The applicant sought leave to seek judicial review of the decision of the respondent to proceed to, or continue with, public hearings by the Tribunal of evidence relating to the Doncaster Rovers Football Club Limited Transaction (DRFCL) on the grounds that two specific witnesses who had provided material and documents to the Tribunal would not be available to give evidence before the Tribunal and further that the decision was ultra vires the Terms of Reference of the Respondent’s Tribunal and was unreasonable. The applicant also sought leave to apply by way of judicial review for declarations that the carrying out of an interview of one of those witnesses by counsel for the Tribunal showed bias on the part of the respondent and was a conscious and deliberate violation of the applicant’s rights under Article 40 of the Constitution and was an infringement of his rights to fair procedures, to natural and constitutional justice and, of his rights under the European Convention on Human Rights as incorporated into Irish Law. The applicant sought further relief on the grounds that the Tribunal delayed in concluding its Inquiry and failed to furnish him with certain documents.
Held by Herbert J in refusing leave:
1. That the applicant was guilty of such extraordinary and unexplained delay and failure to act promptly, that he could not reasonably be said to have any arguable case why such failure to act promptly should be disregarded in the circumstances of this application. In any event, the applicant failed to establish an arguable case that the investigation by the Tribunal of the DRFCL Transaction was outside the Terms of Reference of the Tribunal.
2. That the applicant established an arguable case that it would be irrational and flying in the face of common sense and altogether beyond the range of responses open to a reasonable decision maker, for the Respondent to conclude that two specific witnesses did not have very relevant and material evidence to offer regarding the DRFCL Transaction. Furthermore, the applicant established an arguable case that the Tribunal was obliged to exert all its powers to procure the evidence viva voce of those witnesses and that the applicant be afforded a reasonable opportunity of cross examining those persons. There was no evidence that that would be impossible. However, the applicant failed to establish an arguable case for halting all public hearings of the Tribunal in relation to the DRFCL Transaction.
Mr. Justice Herbert delivered the 26th day of November, 2004
Five of the Reliefs sought in this Application for leave to seek Judicial Review, challenge on various grounds the decision of the Sole Member of the Tribunal of Inquiry into payments to Mr. Charles Haughey and Mr. Michael Lowry, to proceed to, or to continue with, public hearings by the Tribunal of evidence relating to the Doncaster Rovers Football Club Limited Transaction. Two other Reliefs relate to the interview of a Mr. Christopher Vaughan, in London by Counsel for the Tribunal on 9 th September, 2004. Declarations are sought, that the carrying out of this interview showed bias on the part of the Respondent and was a conscious and deliberate violation of the Applicant's rights under Article 40 of the Constitution and, was an infringement of his rights to fair procedures, to natural and constitutional justice and, of his rights under the as incorporated into Irish Law.
A further relief is sought in the form of a Declaration that the procedures adopted by the Respondent and the delay by the Tribunal in concluding its Inquiry have further infringed the Applicant's rights to fair procedures, to natural and constitutional justice and, his rights under the as incorporated into Irish Law. The Applicant seeks additionally, relief by way an Order of Mandamus directing the Respondent to report back forthwith to the Clerk of Dail Eireann. It is claimed that the failure of the respondent to so report for a period of seven years is in breach of the Terms of Reference establishing the Tribunal and a breach of the Applicant's rights to fair procedures, to natural and constitutional justice, and to his rights under the as incorporated into Irish law. The Applicant also seeks Orders by way of injunctive relief requiring the respondent to furnish him with all documents furnished to, and all correspondence with the Tribunal together with all documents and memoranda generated by the Tribunal in respect of conversations, meetings or consultations with persons during the course of its private inquiries into what have been termed the, "Money Trail" and the, "G.S.M.", Modules and the Doneaster Rovers Football Club Limited, (hereinafter referred to as D.R.F.C.L.) Transaction.
It was accepted during the hearing of this Application, that following upon the Judgment of this Court (O'Neill, J.,) delivered on 7 th July, 2004 in the matter of O'Callaghan v. Judge Alan Mahon and Others  7 th July (unreported), and pending the decision of the Supreme Court on Appeal taken against that decision that large quantities of documents in respect of the D.R.F.C.L. Transaction were furnished on a strictly confidential basis by the Tribunal to the Solicitors for the Applicant. The Court was advised by Counsel for the Respondent that the Tribunal would abide by the decision of the Supreme Court in determining whether or not to furnish the, "Money Trail" and the, "G.S.M." Module documents to the Applicant.
At the hearing of this Application the grounds principally advanced by Counsel for the Applicant as a basis for obtaining leave to seek Judicial Review were the reliefs sought at sub paras. (iv) and (i) in that order, of para. D of the Statement required to ground the Application for Judicial Review dated the 17 th September, 2004. These are as follows:-
(iv) "A Declaration that the decision of the Respondent to proceed to public hearings in respect of the purchase of Doncaster Rovers Football Club in the knowledge that neither Christopher Vaughan nor Kevin Phelan is available to give evidence before the Tribunal, has denied the Applicant of his constitutional right to cross examine the witnesses who have given material and documents to the Tribunal that the Tribunal considers relevant to the issue of the purported “connection” of Michael Lowry with the purchase of Doncaster Rovers Football Club and is a breach of the Applicant's rights to fair procedures and to natural and constitutional justice and his rights under the as incorporated into Irish Law."
(i) "An Order of Certiorari by way of an Application for Judicial Review quashing the decision of the Respondent to proceed the public hearings in respect of the purchase of Doncaster Rovers Football Club and the purported “connection” of Michael Lowry to the said purchase on the grounds that the said decision is ultra vires the Terms of Reference of the Respondent's Tribunal and is unreasonable in that no sufficient evidence exists justifying proceeding to public hearings."
In the case of MacDonnell v. Brady and Others, the former Chief Justice, Keane C.J., at page 598 of the Report adverted to the fact that, "the threshold for granting leave [to seck Judicial Review] in the first instance is relatively low". In the decision in "G" v. The Director of Public Prosecutions and Judge Kirby... , the Supreme Court per the former Chief Justice Finlay, C.J., at page 378 and per Denham, J., at 382 defined the burden of proof on a
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