O'Callaghan v Mahon

• Jurisdiction: Ireland
• Judge: Denham J.,Mr. Justice Hardiman,MR JUSTICE FENNELLY
• Judgment Date: 30 March 2007
• Neutral Citation: [2007] IESC 17
• Court: Supreme Court
• Docket Number: [S.C. No. 398
• Date: 30 March 2007

O'Callaghan v Mahon

Between/

Owen O'Callaghan, John Deane, Riga Limited, and Barkhill Limited

Applicants/Appellants

and

Judge Alan Mahon, Judge Mary Faherty and Judge Gerald Keys Members of the Tribunal of Inquiry into Certain Planning Matters and Payments

Respondents

[2007] IESC 17

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Finnegan J.

[S.C. No: 398 of 2006]

THE SUPREME COURT

PRACTICE AND PROCEDURE

SUCCESSION

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 - Appeal dismissed (398/2006 - SC - 30/3/2007) [2007] IESC 17O'Callaghan v Mahon

Facts The applicants sought to stop the Tribunal from investigating further or making any findings against the applicants. They claimed that the Tribunal had not treated them fairly, in particular by not treating them impartially in comparison with a witness, Mr. Tom Gilmartin and secondly, that the Tribunal had behaved in such way as to give rise to a reasonable apprehension of objective bias.

Held by the Supreme Court (Denham, Hardiman, Geoghegan, Fennelly and Finnegan JJ) in dismissing the appeal that there was no basis upon which to stop the Tribunal from its work.

Reporter: R.W.

CONSTITUTION ART 40.3

O'CALLAGHAN v MAHON & ORS (PLANNING TRIBUNAL) UNREP SUPREME 9.3.2005 2005/46/9637 2005 IESC 9

HAUGHEY, IN RE 1971 IR 217

O'CALLAGHAN & ORS v JUDGE MAHON & ORS (PLANNING TRIBUNAL) UNREP SMYTH 10.10.2006 2006 IEHC 311

ROYAL COMMISSION ON TRIBUNALS OF INQUIRY 1966 CMND 3121

HAUGHEY & MULHERN v MORIARTY & ORS 1999 3 IR 1 2000 10 3728

LAW REFORM COMMISSION CONSULTATION PAPER ON PUBLIC INQUIRIES INCLUDING TRIBUNALS OF INQUIRY 2003 (CP 22 - 2003)

BAILEY v FLOOD (PLANNING TRIBUNAL) UNREP MORRIS 6.3.2000 2000/2/457

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 632

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

AINSWORTH v CRIMINAL JUSTICE COMMISSION 1992 175 CLR 564

O'NEILL v BEAUMONT HOSPITAL BOARD 1990 ILRM 419 1989 8 2153

DUBLIN WELL WOMAN CENTRE LTD v IRELAND 1995 1 ILRM 408 1994 9 2704

R v SUSSEX JUSTICES EX PARTE MCCARTHY 1924 1 KB 256

ORANGE LTD v DIRECTOR OF TELECOMS (NO 2) 2000 4 IR 159

SPIN COMMUNICATIONS LTD T/A STORM FM v INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) & MAYPRIL LTD 2001 4 IR 411 2002 1 ILRM 98 2001 23 6256

R v WATSON EX PARTE ARMSTRONG 1976 136 CLR 248

HEGARTY, STATE v WINTERS 1956 IR 320

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORPORATION 1984 IR 381

FAULKNER v MIN INDUSTRY AND COMMERCE UNREP SUPREME 10.12.1996 1997/3/962 TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979

O'CALLAGHAN v MAHON & ORS (PLANNING TRIBUNAL) 2006 2 1R 32

O'CALLAGHAN v MAHON & ORS (PLANNING TRIBUNAL) UNREP O'NEILL 29.7.2005 2005/46/9589 2005 IEHC 265

O'CALLAGHAN v MAHON & ORS (PLANNING TRIBUNAL) UNREP O'NEILL 7.7.2004 2004/37/8597 2004 37 8597

DPP v WALL UNREP CCA 16.12.2005

CRIMINAL PROCEDURE ACT 1993

MAGUIRE & ORS v ARDAGH & ORS (OIREACHTAS JOINT COMMITTEE ON JUSTICE) [ABBEYLARA CASE] 2002 1 IR 385 2001 14 3995

O'FAOLAIN KING OF THE BEGGARS, A LIFE OF DANIEL O'CONNELL 1ED 1980 239 O'FLANAGAN THE MUNSTER CIRCUIT 1880 207

COMPAGNIE FINANCIERE DU PACIFIQUE v PERUVIAN GUANO CO 1882 11 QBD 55

RYANAIR PLC v AER RIANTA CPT 2003 4 IR 264 2004 1 ILRM 241 2003 46 11374

O COMPANY v M COMPANY 1996 2 LLOYD'S REP 347

WARD v SPECIAL CRIMINAL COURT & DPP 1999 1 IR 60 1998 2 ILRM 493 1998 33 13031 DPP v KELLY 2006 2 ILRM 321 2006 IESC 20

R v MELVIN UNREP CENTRAL CRIMINAL COURT 20.12.1993

WILSON v POLICE 1992 2 NZLR 533

DPP v KELLY 1987 IR 596 3 FREWEN 295 1987 6 1565

R v BROWN (WINSTON) 1998 AC 367

R v WARD 1993 2 AER 577 1993 1 WLR 619 R v HENNESSY 1978 68 CAR 419

O'H (M) v DPP UNREP O'SULLIVAN 25.3.1999 2000/20/7719

ABRAHAMSON, DWYER & FITZPATRICK DISCOVERY & DISCLOSURE 1ED 2007 PARA 22.8

DPP v K (G) UNREP CCA 6.6.2002 2002/9/2100

J (B) v DPP 2003 4 IR 525 2003 28 6503 2004 IEHC 147

O'C (P) v DPP & PRESIDENT OF CIRCUIT COURT 2000 3 IR 87 2000 14 5259

OXFORD ENGLISH DICTIONARY MAHON & ORS (PLANNING TRIBUNAL) v POST PUBLICATIONS LTD T/A SUNDAY BUSINESS POST UNREP SUPREME 29.3.2007 207 IESC 15

O'REILLY v CASSIDY & ORS 1995 1 ILRM 306

R v WATSON 1976 1 FAM LR 11297

AMEC PROJECTS LTD v WHITEFRIARS CITY ESTATES LTD 2005 1 AER 723

DISCAIN PROJECT SERVICES LTD v OPECPRIME DEVELOPMENT LTD 2001 AER(D) 138 KINGSLEY v UNITED KINGDOM 2002 35 EHRR 10 177

CANADA (AG) v CANADA (COMMISSION OF INQUIRY ON THE BLOOD SYSTEM 1997 3 SCR 440

LAWLOR v FLOOD 1999 3 IR 107 1999 16 4678

JOYCE v MIN FOR HEALTH & ORS 2004 4 IR 293 2004 23 5314

LANDERS v DPP 2004 2 IR 363 2004 27 6259

WATSON, IN RE EX PARTE ARMSTRONG 1976 50 ALJR 778

LOCABAIL (UK) LTD v BAYFIELD PROPERTIES LTD & ANOR 20001 AER 65 2000 2 WLR 870 BULA LTD v TARA MINES LTD 2000 4 IR 412

VAKAUTA v KELLY 1989 167 CLR 568 1989 87 ALR 275

WEBB v THE QUEEN 1994 181 CLR 41

METROPOLITAN PROPERTIES CO (FGC) LTD v LANNON 1969 1 QB 577

CONSTITUTION ART 40.3.3

R v SANDERS UNREP UK CCC 29.8.1989

1 Judgment delivered the 30th day of March, 2007 by Denham J.

2 1. These are judicial review proceedings in which Owen O'Callaghan, John Deane, Riga Limited and Barkhill Limited, the applicants/appellants, hereinafter referred to as "the applicants", have appealed to this Court from the judgment and order of the High Court (Smyth J.) delivered on 10th October, 2006, which order refused the applicants the reliefs they sought. Judge Alan Mahon, Judge Mary Faherty and Judge Gerald Keys, are members of the Tribunal of Inquiry into Certain Planning Matters and Payments, and are hereinafter referred to as "the Tribunal".

3 2. In these proceedings the applicants seek to stop the Tribunal from investigating further, or making any findings against, the applicants, on the basis of bias, partiality and/or unfairness by Tribunal.

4 3. Inspite of the fact that these are judicial review proceedings, a significant feature of this case is the very high level of factual detail in the pleadings and in the submissions, as to the proceedings before the Tribunal. To address fully the issues submitted by the applicants I consider that it is necessary to refer in some detail to the allegations.

5 4. The applicants were granted leave to apply by way of judicial review for the following reliefs:

6 (i) an order of prohibition by way of judicial review prohibiting the Tribunal from further investigating or making any finding in relation to matters affecting the applicants;

7 (ii) an order of certiorari by way of judicial review quashing the decision of the Tribunal whereby the Tribunal refused to desist from further investigating or making any findings in relation to matters affecting the applicants.

8 5. The grounds upon which the applicants were granted leave to seek judicial review were lengthy, replete with facts, and as follows:

9 (a) The first named applicant is a property developer and is a director of Barkhill Limited having its registered office at Mahon Industrial Estate, Cork and Riga Limited having its registered office at Mahon Industrial Estate, Cork. The second named applicant is a solicitor acting as a consultant to the firm of Ronan Daly Jermyn, Solicitors, 12 South Mall, Cork and is a property developer and a director of Barkhill Limited and Riga Limited.

10 i (b) (i) The applicants have been granted representation at the Tribunal. The Tribunal was established by the Oireachtas in October 1997 and its terms of reference has been expanded on a number of occasions to investigate alleged improper payments to politicians in connection with the planning process. The Quarryvale I Module of the Tribunal commenced in public session on the 3rd of March 2004 being day 455 and is entitled "Arlington/Quarryvale and related matters". The said module was concerned with allegations of corruption relating to lands at Bachelor's Walk in Dublin City and Quarryvale in west County Dublin.

11 (ii) The Quarryvale I Module deals with the years 1987 to 1990.

12 (c) A further module of the Tribunal was due to commence on the 29th of November 2005 to deal with Quarryvale lands thereafter, from the years 1990 to 1996. The Tribunal had not yet commenced public hearings into the Quarryvale 2 Module and while the majority of the public hearings dealing with the first module have been completed, it was envisaged that the Tribunal would resume further hearings to complete outstanding issues.

13 (d) Prior to the commencement of the Quarryvale I module, the Tribunal caused to be distributed to relevant interested parties a brief containing statements and documents. The brief was accompanied by a letter from the Tribunal. This brief was intended to consist of all evidence to be adduced before the Tribunal for the first module and was distributed to the applicants before they were granted representation. The brief was subsequently thereafter supplemented by the Tribunal on a number of occasions.

14 (e) On the 12th of December 2003 the Tribunal circulated a document entitled "An explanatory memo re: Rezoning Module". This document purported to describe the procedure adopted by the Tribunal in the conduct of the inquiries in public. This indicated that relevant material would be circulated as part of the brief.

15 (f) The brief for the Quarryvale I Module was circulated to interested parties and contains statements from various proposed witnesses with relevant documentation. It included a lengthy statement from Tom Gilmartin dated the 25th of May 2001, large parts of which were redacted apparently on the basis that they did not concern that...