Caldwell v Mahon Tribunal

• Jurisdiction: Ireland
• Judge: Macken J.
• Judgment Date: 09 June 2011
• Neutral Citation: [2011] IESC 21
• Court: Supreme Court
• Date: 09 June 2011

[2011] IESC 21

THE SUPREME COURT

Macken, J.

Finnegan, J.

O'Donnell, J.

[S.C. No. 258 of 2006]

Caldwell v Mahon Tribunal

BETWEEN

JOHN CALDWELL

Applicant/Appellant

AND

JUDGE ALAN MAHON, JUDGE MARY FAHERTY AND JUDGE GERALD KEYS, MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS

Respondents/Respondents

BAILEY & BOVALE DEVELOPMENTS LTD v FLOOD (PLANNING TRIBUNAL) UNREP MORRIS 6.3.2000 2000/2/457

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

REDMOND v FLOOD (PLANNING TRIBUNAL) 1999 3 IR 79 1999 1 ILRM 241 1998/36/13814

HAUGHEY, IN RE 1971 IR 217

HAUGHEY & MULHERN v MORIARTY & ORS 1999 3 IR 1

O'CALLAGHAN v MAHON & ORS 2006 2 IR 32

LAWLOR v FLOOD 1999 3 IR 107 1999/16/4678

DELLWAY INVESTMENTS LTD & ORS v NATIONAL ASSET MANAGEMENT AGENCY (NAMA) & ORS UNREP SUPREME 12.4.2011 2011 IESC 14

WISEMAN v BORNEMAN & ORS 1971 AC 297 1969 3 WLR 706 1969 3 AER 275

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921

RSC O.84 r21(1)

JUDICIAL REVIEW

Audi alteram partem

Tribunal procedures - Margins of discretion - Refusal to hear submissions on exercise of discretion - Natural and constitutional justice - Relevant factors to be taken into account in exercising discretion - Whether tribunal entitled to refuse to hear submissions - Importance of tribunal adhering to rules of natural justice -Whether decision to move from private to public hearings based on assessment of evidence can be challenged by judicial review - Whether body commencing proceedings against individual must give opportunity to make submissions - Redmond v Flood [1999] 3 IR 79 distinguished; Wiseman v Borneman [1971] AC 7 considered - Whether rights adequately protected by hearing afforded - Whether individuals should be allowed make submissions given final nature of tribunal's decision - Distinction between assessment of evidence and application of criteria - Whether appropriate to consider written submissions only - Whether tribunal had power to make appropriate enquiries - Whether application within time - Appeal allowed (258/2006 - SC -9/6/2011) [2011] IESC 21

Caldwell v Mahon

1 Judgment of Macken J. delivered on the 9th day of June, 2011

2 JUDGMENT DELIVERED BY MACKEN, J. [NEM DISS]

3 This is an appeal from the judgment of the High Court (Hanna, J.) delivered on the 28 ^th day of June, 2005. The respondents to the appeal comprise, as to the first named, the Chairman, and as to the remaining persons, the other members of the Tribunal of Inquiry into Certain Planning Matters and Payments ("the Tribunal") commonly known for some years (since it was originally established in November, 1997 under the Chairmanship of Flood, J.) as "the Mahon Tribunal". The appellant is a former practising solicitor and former managing partner of a firm of solicitors in Dublin. At the time relevant to the events the subject of this appeal the appellant had an interest in or a connection with certain lands at Carrickmines in County Dublin, which, inter alia, were the subject of what was called the Carrickmines Module of part of the work of the Tribunal.

4 On the 13 ^th December, 2004 by order of the High Court (McKechnie, J.), the appellant was granted leave to apply for judicial review of a decision of the respondents to embark on, or continue, certain public hearings. The reliefs in respect of which leave was granted included:

5 (i) a declaration that the respondents decision to embark on the above public hearings without giving the appellant an opportunity to make submissions thereon, acted unlawfully and in breach of the requirements of natural and constitutional justice;

6 (ii) in the alternative, an order of mandamus directing the respondents to hear such submissions prior to holding any, or any further, public hearings;

7 (iii) a declaration that the respondents, in deciding to hold such public hearings, acted and/or was acting ultra vires and/or without or in excess of jurisdiction;

8 (iv) a declaration that the respondents, in deciding to hold such public hearings had acted, or was acting, irrationally and without or in excess of jurisdiction; and

9 (v) the costs of the proceedings,

10 all of which reliefs are set out in the High Court Order made on that date.

11 The grounds upon which the order was sought were, briefly, the following: the respondent (a) in refusing to hear submissions on behalf of the applicant as to whether it should, or should not, exercise its discretion to hold, or not to hold, public hearings, acted in breach of the audi alteram partem rule, and of the requirements of fair procedures and natural and constitutional justice; (b) was acting ultra vires in deciding to hold such public hearings, because it was neither mandated nor empowered to inquire into, or establish, the beneficial ownership of the lands in question; (c) even if it had such power so to do, it was not necessary to conduct the same unless and until it had been concluded that corruption occurred in relation to those lands and that such corruption benefited the lands, which was not the case; (d) in deciding to hold such hearings, had acted irrationally because there was no rational basis on which it could be concluded that hearings into the phases in question would be other than of no, or very limited, probative value; (e) in deciding to hold such public hearings had failed to take into account relevant considerations and had thus acted without and/or in excess of jurisdiction, in particular in failing to consider (i) the likely duration and cost of such hearings; (ii) whether such hearings were likely to provide evidence which would enable the respondent to make findings of fact or recommendations, and to draw conclusions; and (iii) whether there were other factors which would, or would likely, render such hearings inappropriate, unnecessary, wasteful of resources, unduly costly, unduly prolonged or which would be of limited or no probative value.

12 The above reliefs all relate to a decision by the respondents made on the 27 ^th November, 2004 to embark upon, or to continue, public hearings into Phases 2 to 8 (inclusive) of the Carrickmines II and Related Issues Module ("the Carrickmines II Module"), without hearing submissions on behalf of the appellant, and to a second decision made to similar effect, in early December, 2004.

13 The High Court proceedings were subsequently determined after a hearing which lasted five days. By a judgment delivered on the 28 ^th June, 2005, the High Court dismissed the appellant's claims in their entirety. Consequential upon that judgment, and upon a supplemental judgment delivered on the 15 ^th February 2006, dealing with an issue of privacy and the retrospectivity or otherwise of provisions of the European Convention on Human Rights Act 2003, an order of the High Court was made on the 5 ^th April, 2006, by which order all the reliefs sought by the appellant were refused and he was directed to pay the costs of the proceedings. Notice of Appeal, dated the 29 ^th June, 2006, from the above two judgments and the order of the High Court, was filed on behalf of the appellant, on the grounds therein set out, seeking to have the same set aside.

The Scope of the Appeal

14 The matter now comes before this Court in unusual, but not unknown, circumstances. It is accepted by both parties that the subject matter of the appeal itself is now moot, by virtue of the passage of time, and the fact that events have overtaken the appeal. The Tribunal has already concluded its oral hearings of the relevant parts of the Carrickmines II Module. Because, however, the appellant also seeks to set aside the order for costs made against him, it is necessary to consider the main issues raised in the appeal, so as to determine if the findings of the learned High Court judge were correct, and whether the costs order was properly made, or ought be set aside. On the written as well as the oral submissions, there are three primary issues which arise on the appeal. They may be described in the following terms, as derived from the pleadings and the Notice of Appeal:

(1) The natural justice issue

"A declaration that the respondent, in deciding to embark upon public hearings in relation to Phases 2 to 8, inclusive, of the Carrickmines II and Related Issues Module without giving the applicant/appellant the opportunity to make submissions as to whether the respondent should hold such public hearings, acted unlawfully and in breach of the requirements of natural and constitutional justice."

(2) The ultra vires issue

"A declaration that the respondent, in deciding to hold or to continue public hearings into Phases 2 to 8, inclusive, of the Carrickmines II and Related Issues Module has acted and/or is acting ultra vires and/or without or in excess of jurisdiction."

(3) The delay issue

15 This issue arises from the respondent's Notice of Objection which raised a timing issue in the following terms:

"… the applicant's case must fail on grounds of delay for failure to comply with the provisions of Order 84 of the Rules of the Superior Courts".

The General Context giving rise to the Dispute

16 Before considering the issues, it is necessary to set out the factual context in which they arose. The original Terms of Reference, when the Tribunal was first established pursuant to resolution of the Oireachtas and a Ministerial Order in late 1997, were relatively narrow, and confined to examining, inter alia, the beneficial ownership of various lands in North Dublin, referred to in a letter from a Mr. Michael Bailey to a Mr. James Gogarty, their planning history, relationships between the owners of the various lands and the Planning Authority, and/or members of the Oireachtas, and the possible existence of...