O'Callaghan v Judge Mahon and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 16 May 2012 |
| Neutral Citation | [2012] IEHC 603 |
| Court | High Court |
| Date | 16 May 2012 |
[2012] IEHC 603
THE HIGH COURT
BETWEEN
HAUGHEY, IN RE 1971 IR 217
MAXWELL v DEPARTMENT OF TRADE 1974 1 QB 523
O'CALLAGHAN & ORS v JUDGE MAHON & ORS UNREP O'NEILL 6.10.2009 2009/44/10977 2009 IEHC 428
MURPHY & ORS v FLOOD & ORS 2010 3 IR 136
TRIBUNAL OF INQUIRY ACT 1921 S1(2)
GOODMAN INTERNATIONAL v JUSTICE HAMILTON 1992 2 IR 542
THE STATE OF VICTORIA v AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES & BUILDING LABOURERS' FEDERATION 1982 152 CLR 25
O'CALLAGHAN v JUDGE ALAN MAHON & ORS 2006 2 IR 32
MAHON v AIR NEW ZEALAND LTD & ORS 1984 AC 808
WADE & FORSYTH ADMINISTRATIVE LAW 10TH ED OXFORD 2009 PARA 240
WADE & FORSYTH ADMINISTRATIVE LAW 10TH ED OXFORD 2009 PARA 241
WADE & FORSYTH ADMINISTRATIVE LAW 10TH ED OXFORD 2009 PARA 242
WADE & FORSYTH ADMINISTRATIVE LAW 10TH ED OXFORD 2009 PARA 243
WADE & FORSYTH ADMINISTRATIVE LAW 10TH ED OXFORD 2009 PARA 244
MAGUIRE v ARDAGH 2002 1 IR 385
O'CALLAGHAN & ORS v JUDGE MAHON & ORS UNREP O'NEILL 6.10.2009 2009/44/10977 2009 IEHC 428
P (A) v DPP 25.1.2011 2011 1 IR 729 2011 2 ILRM 100 2011/43/12480 2011 IESC 2
TRIBUNALS
Tribunals of inquiry
Judicial review - Certiorari - Planning tribunal - Payments to politicians - Final report - Adverse findings - Application to have certain findings of tribunal quashed - Fair procedures - Effect of adverse findings of tribunal - Definition of corruption for planning tribunal - Whether definition of corruption too vague - Whether final report adhered to definition of corruption - Whether failure to put allegations of corruption to applicant - Whether applicant aware of possible finding of corruption - Whether obligation on tribunal to furnish draft findings to applicant - Whether fair procedures followed - O'Callaghan v Mahon (Unrep, ex tempore, SC, 24/11/2010) applied - O'Callaghan v Mahon [2009] IEHC 428 (Unrep, O Néill J, 6/10/2009) followed - In Re Haughey [1971] IR 217; Murphy v Flood [2010] IESC 21, [2010] 3 IR 136; Goodman International v Hamilton [1992] 2 IR 542; State of Victoria v Australian Building Construction Employees and Builders Labourers' Federation [l982] l52 CLR 25; O'Callaghan v Mahon [2005] IEHC 265, [2005] IESC 9, [2006] 2 IR 32; Mahon v Air New Zealand Ltd [1984] AC 808; Maguire v Ardagh [2002] 1 IR 385 and P(A) v DPP (Unrep, SC, 25/1/2011) considered - Relief refused (2012/544JR - Hedigan J - 16/5/2012) [2012] IEHC 603
O'Callaghan v Mahon
The applicant was a property developer and a director of Barkhill Ltd and Riga Ltd. The respondents were members of the Tribunal of Inquiry into Certain Planning Matters and Payments (‘the Tribunal’) which had been established in October 1997 to investigate corrupt payments to public officials. The applicant was called to give evidence before the Tribunal in relation to a development he was involved in known as Quarryvale where he admitted he had made political donations as well as employing a consultant to help him secure support for the development from local councillors. The consultant had admitted before the Tribunal that he had made corrupt payments to certain politicians in this role, but the applicant argued had not been aware this was occurring. The Tribunal”s final report on the 22 nd March 2012 included findings that the applicant was corrupt and had made corrupt payments through an intermediary.
On the 18 th June 2012, the applicant was granted leave to apply for judicial review to challenge the findings of the Tribunal. He sought an order of certiorari to quash the findings against him by the Tribunal, an injunction to remove these findings from the final report as well as a declaration that the findings were in breach of natural and constitutional justice as well as fair procedures. He argued that although the final report stated that a donation by a developer to a local developer in circumstances where the interests of the developer may be affected by an upcoming vote which the councillor was entitled to participate in could amount to a corrupt payment, this was never put to him in cross-examination. He also argued that this situation was outside the definition of corruption that was given to him by the Tribunal at an early stage.
Held by Hedigan J that throughout the applicant”s attendance before the Tribunal, he was made aware that he was being investigated in relation to alleged donations that were made by him to a public official, focusing on whether such payments were corrupt. He could therefore not have been in any doubt as to what he had to answer to and indeed, he attempted to explain these donations as being legitimate.
In relation to the definition of corruption that was given at an early stage, it was noted that no challenge was made by the applicant to the definition at any stage during the hearing. If the Tribunal had altered their definition of corruption to include other circumstances which it would consider corrupt, it could not be said that the applicant was not given notice or an opportunity to reply.
Relief sought refused.
Judgment of Mr. Justice Hedigan delivered on the 16th of May 2012.
1. The applicant seeks the following reliefs:-
(a) An order of certiorari by way of judicial review quashing the decision of the respondents whereby the respondents in the final report of the tribunal made the findings enumerated in the schedule to their statement of grounds;
(b) an injunction directing the respondents to delete the said findings from the final report and to submit the report so amended to the Houses of the Oireachtas;
(c) a declaration that the said findings were made in breach of natural and constitutional justice and/or fair procedures and/or that they were otherwise ultravires the respondents.
(d) Further and other reliefs;
(e) The costs of proceedings.
2 2.1 The applicant is a property developer and is a director of Barkhill Limited having its registered office at 21, Lavitt's Quay, Cork and Riga Limited having its registered office at 21, Lavitt's Quay, Cork. The respondents are members of the Tribunal of Inquiry into Certain Planning Matters and Payments. (The Tribunal)
2 3.1 The Mahon tribunal was established by the Oireachtas in October 1997 to investigate corrupt payments to public officials. There were a number of modules within the inquiry and the applicant was involved in the module known as Quarryvale 2.The applicant's involvement in this module stemmed from his participation in the development of Liffey Valley (then Quarryvale) in Dublin. The development was Mr. Tom Gilmartin's initiative and the applicant became involved when Mr. Gilmartin got into financial difficulties, with the applicant later buying him out.
3 3.2 The Quarryvale 2 brief was circulated by the Tribunal to interested parties on the 17 th December, 2004, and this brief was updated from time to time, eventually comprising approximately 30,000 pages. The Quarryvale 2 module began on the 29 th November, 2005, day 603 of the public hearing. It was then adjourned and recommenced on the 28 th May, 2007, day 725 and ran to the 3 rd December, 2008, day 917 of the public sittings. The applicant gave evidence from the 18 th June, 2008, day 874 of the public hearings, to the 16 th October, 2008, day 913.
4 3.3 The applicant was examined about matters arising from 1990-1998. He admitted having made political donations to Mr. Liam Lawlor and accepted he had also retained and paid Mr. Frank Dunlop as a consultant and lobbyist from early on in the Quarryvale project to assist him in securing support among councillors for Liffey Valley. Mr. Dunlop, it later transpired, made payments to certain politicians which he admitted were corrupt. The applicant said he did not know about these payments and only became aware of them during the course of the tribunal.
5 3.4 The tribunal's final report was published on the 22 nd March, 2012, with chapters 2 and 17 making findings against the applicant. 13 of the findings were that the applicant was corrupt and further findings were made that he was guilty of corrupt payments through an intermediary.
6 3.5 The applicant was unhappy with these findings and argues that the tribunal did not put the matters noted in the report to him during the inquiry or before publication of the report. He denies any wrong doing and argues that he did not make improper payments to anyone or authorise anyone to do so and his donations were legitimate political donations. He is now seeking, by way of judicial review, to have certain findings from the report quashed and deleted .On the 18 th June, 2012, Mc Govern J. granted the applicant leave to apply for judicial review.
2 4.1 Definitions of "corruption";
During its lifetime the tribunal's terms of reference were extended a number of times. Under paragraph A5 of its terms the tribunal had the power to make a finding of corruption, which term was defined by the sole member Flood J. on the 21 st October, 1998 and appears in chapter 1 of the final report. He said it covered:-
"…destroying, hindering or perverting the integrity or fidelity of a person in the discharge of his duty, or the abuse of influence or power or duty by any person, or to bribe, or to induce another to act dishonestly or unfaithfully, or an attempt to do the same, or circumstances of control, influence or involvement with such person to the extent that it gives rise to a reasonable inference of unequal access, or favouritism, or a set of circumstances detrimental to his duties."
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David Dully v Athlone Town Stadium Ltd
...of that report before publication (see De Smith Judicial Review of Administrative Action 5 th Ed. at para. 8–059; O'Callaghan v. Mahon [2012] IEHC 603 at para. 16). There is no reason why Courts of law should be treated differently when issuing their judgments, and many reasons of both prin......