O'Callaghan and Others v Judge Alan Mahan and Others
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE TC SMYTH |
| Judgment Date | 10 October 2006 |
| Neutral Citation | [2006] IEHC 311 |
| Court | High Court |
| Docket Number | 324 JR/2004 |
| Date | 10 October 2006 |
[2006] IEHC 311
THE HIGH COURT
HAUGHEY, IN RE 1971 IR 217
O'KEEFFE v AN BORD PLEANALA 1993 1 IR 39
FAULKNER v MIN FOR INDUSTRY UNREP SUPREME 10.12.1996 1997/3/953
BAILEY v FLOOD (PLANNING TRIBUNAL) UNREP MORRIS 6.3.2000 2000/2/457
R v EAST SUSSEX CO COUNCIL EX PARTE TANDY 1998 2 AER 769 1997 3 WLR 884
KIELY v MIN SOCIAL WELFARE 1977 IR 367
CONSTITUTION ART 40.3
BULA v TARA MINES 2000 4 IR 412
PRESIDENT OF REPUBLIC OF SOUTH AFRICA v SOUTH AFRICAN RUGBY FOOTBALL UNION 1999 7 BCLR 725 1999 4 SA 147
WEBB v THE QUEEN 1993 181 CLR 41
R v GOUGH 1993 AC 646
RADIO LIMERICK ONE LTD v INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) 1997 2 IR 291 1997 2 ILRM 1
ORANGE LTD v DIRECTOR TELECOMS (NO 2) 2001 4 IR 159
JP LENIHAN, RE 1943 138 F (2D) 650
O'NEILL v BEAUMONT HOSPITAL BOARD 1990 ILRM 419
LOCABAIL v BAYFIELD PROPERTIES LTD 2000 1 AER 65
R (DONOGHUE) v CORK JJ 1910 2 IR 271
DINEEN v DELAP 1994 2 IR 228
MCDONALD v BRADY 2001 3 IR 589
DELANEY JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2001
O'NEILL v BEAUMONT HOSPITAL 1990 ILRM 419
TRIBUNALS:
Tribunal of inquiry
Fair procedures - Objective bias - Prejudgment - Whether bias can be inferred from pattern of previous decisions - Extent of prejudicial statements required to satisfy test for prejudgment - Whether objective bias established - Judicial review refused(2005/1289JR - Smyth J - 10/10/2006)[2006] IEHC 311 O'Callaghan v Judge Mahon
Facts: The applicants sought by way of judicial review an order of prohibition preventing the respondents from further investigating or making any finding in relation to matters affecting the applicants in the Tribunal of Inquiry, of which the respondents were members. The applicants also sought an order of certiorari quashing the decision of the respondents refusing to desist from further investigating or making findings in relation to matters affecting the applicants. The applicants submitted that certain documents received by them as a result of earlier judicial review proceedings (JR 324) demonstrated that they had not been treated fairly by the Tribunal, were denied fair procedures, in that they were treated in an unequal manner compared to Mr. Gilmartin, who was a person that had made very serious allegations against the applicants, and further that their rights had been infringed and there was an appearance of bias on the part of the Tribunal. Specifically, the applicants claimed that the disclosed documentation demonstrated that Mr. Gilmartin had on many occasions made statements which were glaringly and significantly inconsistent with the statements he made in evidence before the Tribunal.
Held by Smyth J. in refusing the application:
1. That the Tribunal had adopted its policies arising out of the decision of the Supreme Court in the earlier judicial review proceedings (JR 324) and the applicants now had the opportunity to exploit any inconsistencies in Mr. Gilmartin’s evidence by way of cross-examination. The evidence in relation to the inquiry was incomplete and it would be premature for the court to inhibit the Tribunal from discharging the task imposed upon it to hear the evidence. Furthermore, there was no inequality of treatment by the Tribunal.
2. That the applicants failed to establish that a reasonable observer might conclude that there was a real possibility that the Tribunal wished to vindicate Mr. Gilmartin at the expense of the applicants. Notwithstanding the finding that a case on bias had not been made out, even if it had the doctrine of necessity would apply in this case.
Reporter: L.O’S.
JUDGEMENT OF MR. JUSTICE TC SMYTH DELIVERED ON TUESDAY, 10TH OCTOBER 2006
JUDGMENT OF MR. JUSTICE TC SMYTH, DELIVERED ON TUESDAY, THE 10th DAY OF OCTOBER, 2006
The Applicants seek, by way of judicial review, Orders of -
(a) Prohibition - prohibiting the Respondents from further investigating or making any finding in relation to matters affecting the Applicants in the Tribunal of Inquiry (of which the Respondents are members); and
(b) Certiorari, quashing the decision of the Respondents whereby the Respondents refused to desist from further investigating or making findings in relation to matters affecting the Applicants.
There are two central claims made by the Applicants -
(i) the Applicants contend that the documents and related facts documents obtained by them pursuant to court orders, demonstrated that the Applicants have not been treated fairly by the Tribunal with regard to a specific issue (Quarryvale I); and, have been denied fair procedures, in that they have been treated in an unequal manner compared to a Mr. Gilmartin.
Mr. Gilmartin, the Applicants contend, is a person who has made very serious allegations against them, and that this unfairness and denial of fair procedures and unequal treatment represents a serious infringement of their rights. These complaints were referred to throughout the hearing as the "fair procedures/inequality of treatment" ground.
(ii) The Applicants contend that there is an appearance of bias and partiality on the part of the Tribunal, and that the approach by the Tribunal to date gives rise to a reasonable apprehension or suspicion of bias.
This matter comes before the court as the consequences of a judgment of the Supreme Court dated 9th March 2005, which determined that the Applicants, up to that time had been denied the rights they had as a result of the decision In re Haughey [1971] IR 217. The order and judgment of the Supreme Court arose out of previous judicial review proceedings (Record No. JR 324). In those proceedings the Tribunal had submitted to the court that there was nothing in the undisclosed documentation (to the Applicants) material(s) which was or were inconsistent with a statement of evidence of 23rd May 2001, which was made available to the Applicants in connection with the module known as Quarryvale (I).
The contention of the Applicants in these proceedings is that the documentation which has been disclosed as a result of these earlier judicial review proceedings did contain a number of important matters which were very significantly inconsistent with the statement of Mr. Gilmartin and that it could not be credibly contended that such inconsistencies were not "gross or glaring or significant."
In JR 324 the High Court (O'Neill J. in his judgment of 7th July 2004) noted that in the context of a ruling by the Tribunal (which was overruled by the courts - hence the documents upon which the instant case is based) -
"… this court fully accepts the assurance or guarantee given by the Tribunal to the effect that the undisclosed written or recorded statements of the notice party [Mr. Gilmartin] do not contain material which is either glaringly or grossly or significantly inconsistent with the statement of the Notice Party of the 25th May 2001 and the oral evidence given by the Notice Party."
In the events the Applicants contend that if there can be shown to exist gross or glaring or significant inconsistencies then such "assurance" given earlier to the court taken in conjunction with the inconsistencies themselves now known to exist betoken a disposition by the Tribunal towards the Applicant. This is not a ground upon which relief was specifically sought or granted. In my judgment it is now irrelevant what assurance(s) (if any) were considered to have been given to the court and such as did arise had their origins in counsel's submissions - because in the events the materials have now been disclosed as a result of the court orders, and any erroneous assessment or adjudication as to the inconsistencies or degrees thereof stand as set aside and can be addressed by the Applicants in open session at any future hearing by the Tribunal.
Prior to any consideration of the detailed submissions made in this case the following general observations are pertinent: -
(a) Judicial review is not an appeal process (O'Keeffe -v- An Bord Pleanala [1993] 1 IR 39 at 71).
(b) The Tribunal has been found in error in JR 324; the policy which was adopted by the Tribunal long predated the commencement of hearings involving Mr. Gilmartin or Mr. O'Callaghan: It had been universally applied to everyone prior to JR 324.
(c) It is inappropriate for the court to examine in minute detail a large number of issues which relate to factual events or to carry out a microscopic investigation in relation to decisions made by the Tribunal in the course of its deliberations in relation to particular documents or events: -
"We do no service to the public in general if we subject every decision of every administrative Tribunal to minute analysis."
(Per O'Flaherty J. in Faulkner -v- Minister for Industry and Commerce)
(d) Procedural decisions of the Tribunal are reviewable - and a fortiori post JR 324 must be so.
(e) The individual decisions challenged must be examined only to the extent necessary to determine whether such indicates a particular frame of mind by the Tribunal.
(f) A court can strike down a decision of a Tribunal which is in error - it does not substitute its own view for that of the decision maker, even if constitutional rights are affected -
"It is not a licence for the courts to stand in the shoes of the decision maker".
(Per Morris P. in Bailey -v- Flood [2000[ IECH 169).
(g) A procedural or policy error on the part of the Tribunal which constituted a failure or infringed In re Haughey...
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