Fitzwilton Ltd and Others v Judge Mahon and Others (Planning Tribunal)

JurisdictionIreland
JudgeMiss Justice Laffoy
Judgment Date16 February 2006
Neutral Citation[2006] IEHC 48
CourtHigh Court
Date16 February 2006

[2006] IEHC 48

THE HIGH COURT

No. 1018 JR/2005
FITZWILTON LTD & ORS v JUDGE MAHON & ORS (PLANNING TRIBUNAL)

BETWEEN

FITZWILTON LIMITED, GOULDING LIMITED AND RENNICKS SIGN MANUFACTURING
APPLICANTS

AND

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

SHORTT v DUBLIN CITY COUNCIL 2003 2 IR 69

RYANAIR v AER RIANTA 2003 4 IR 264

R v LANCASHIRE CC 1986 2 AER 941

O'KEEFFE v AN BORD PLEANALA 1993 1 IR 39

R v SECRETARY OF STATE FOR HEALTH EX PARTE HACKNEY LONDON BOROUGH & ORS UNREP BINGHAM CA 24.7.1994

AQUATECHNOLOGIE LTD v NATIONAL STANDARDS AUTHORITY OF IRELAND (NSAI) & ORS UNREP SUPREME 10.7.2000 2000/1/209

DPP v GILLIGAN UNREP CCA 2003/16/3514

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S4

KNOWLES TRIAL 1692 12 HOWELL'S STATE TRIALS 1167

ROYLANCE v GENERAL MEDICAL COUNCIL 1999 3 WLR 541

HERIJANTO v REFUGEE REVIEW TRIBUNAL 2000 170 ALR 379

HERIJANTO v REFUGEE REVIEW TRIBUNAL 2000 170 ALR 575

HERIJANTO v REFUGEE REVIEW TRIBUNAL 2000 HCA 49

MUIN v REFUGEE REVIEW TRIBUNAL 2002 190 ALR 601

RSC O.31

ROONEY'S APPLICATION, RE 1995 NI 398

CARLOW/KILKENNY RADIO LTD & ORS v BROADCASTING COMMISSION OF IRELAND 2003 3 IR 528 2004 1 ILRM 161

PRACTICE AND PROCEDURE Discovery Judicial review - Principles that apply - Scope of discovery in context of judicial review proceedings - Whether same principles of discovery apply to judicial review proceedings as to plenary proceedings - Whether documents sought relevant and necessary for disposing fairly of cause -Shortt v Dublin City Council [2003] 2 IR 69 and Carlow Kilkenny Radio Ltd v Broadcasting Commission [2003] 3 IR 528 considered; Ryanair plc v Aer Rianta cpt [2003] 4 IR 264 applied - Rules of the Superior Courts 1986 (SI 15/1986), O 31 - Application refused (2005/1018JR - Laffoy J - 16/2/2006) [2006] IEHC 48 Fitzwilton Ltd v Mahon Tribunal

Facts: The applicants, who had been granted leave to apply by way of an application for judicial review for certain orders regarding a decision of the respondents to hold a public hearing in relation to a certain payment allegedly made by the applicants to Fianna Fail, sought discovery of three categories of documents from the respondents. The documents sought related to the decision of the respondents to proceed to public hearing in relation to the payment allegedly made by the applicants.

Held by Laffoy J. in refusing the application: That the same principles applied to discovery in judicial review proceedings as applied generally in civil proceedings. The documents sought to be discovered in this application were not relevant and necessary to fairly dispose of the issues between the parties.

Reporter: L.O’S.

1

Judgment of Miss Justice Laffoy delivered 16th February, 2006.

The substantive judicial review proceedings
2

The issues on this judicial review are primarily delimited by the order made on 21st September, 2005 by White J. In that order leave was given to the applicants to apply by way of application for judicial review for a declaration that the respondents have failed to comply with paragraph J(2) of the Tribunal's Amended Terms of Reference in relation to the holding of a public hearing in relation to the Fitzwilton £30,000 payment and that, accordingly, any such public hearing is ultra vires the respondents and in breach of the applicants” constitutional rights. The applicants were also given leave to apply for ancillary relief in the form of orders of Certiorari and Prohibition. Such leave was granted on the grounds set forth at paragraph E of the applicants” Statement grounding their application for judicial review.

3

The factual background to the proceedings is that the respondents are the members of the Tribunal of Inquiry into Certain Planning Matters and Payments (the Tribunal), which was established in 1997. Amongst the matters which the Tribunal has investigated since its establishment is what is described in the applicants” Statement as "a political contribution of IR£30,000 made to Fianna Fáil by the Fitzwilton Group in June, 1989 ( “the Fitzwilton £30,000 payment”)". The Tribunal first made inquiries in relation to the Fitzwilton £30,000 payment in April, 1998 and, as the applicant put it, has continued its inquiries sporadically since then. The applicants assert that they have at all times co-operated with the Tribunal's inquiries. By instrument dated 3rd December, 2004, executed on foot of a resolution passed by both Houses of the Oireachtas, the Terms of Reference of the Tribunal were amended by the addition of paragraph J. Paragraph J(2) provides:

"The Tribunal shall, subject to the exercise of its discretion pursuant to paragraph J(6) hereunder, by 1 May, 2005 or such earlier date as the Tribunal shall decide, consider and decide upon such additional matters (being matters in addition to those set forth at J(1)(a) to (g) above and in respect of which the Tribunal has conducted or is in the course of conducting a preliminary investigation as of the date of the decision) that shall be proceeding to a public hearing and shall record that decision in writing and shall duly notify all parties affected by that decision at such time or times as the Tribunal considers appropriate."

4

On 28th April, 2005 the respondents executed a document entitled "List of additional matters pursuant to paragraph J2 of the Amended Terms of Reference passed by Resolution of the Houses of the Oireachtas, on 17th November, 2004". The text of the document which preceded the list proper set out certain decisions which the Tribunal might take in relation to a matter on the list. It further stated that decisions as to whether or not any matter listed should continue to undergo private inquiry, or should proceed to public inquiry, would continue to be subject to review by the Tribunal in accordance with its Terms of Reference (as amended). The list contained 47 matters including a matter designated "Fitzwilton/MMDS/payment to Ray Burke by Rennicks".

5

By letter dated 4th July, 2005, the Tribunal responded to a submission which had been made by the applicants on 30th September, 2003, which had sought a private hearing of the applicants” submissions, stating that the Tribunal had shortly thereafter considered the request and decided that it would be inappropriate. The letter of 4th July, 2005 went on to state that the Tribunal was then currently reviewing all information and documentation in its possession relating to the Fitzwilton £30,000 payment. Notification to interested parties as to how the Tribunal intended to proceed would be effected as soon as it was deemed appropriate by the Tribunal. By further letter dated 15th July, 2005, the Tribunal informed the applicants that public hearings in the Fitzwilton £30,000 payment module would commence on 21st September, 2005 and were expected to continue for a period of three to four weeks thereafter. On 13th September, 2005, the Tribunal furnished to the applicants” solicitors a copy of the decision dated 28th April, 2005 from which all of the 47 matters listed on the J2 list other than the Fitzwilton £30,000 payment were redacted, stating that all of the contents which had been redacted comprised a list of decisions taken by the Tribunal to go to public hearing in matters other than the Fitzwilton £30,000 payment.

6

Insofar as they are relevant for present purposes, the grounds on which the applicants were given leave to seek judicial review are the following:

7

••That the J(2) List does not record in writing a decision by the Tribunal that the Fitzwilton £30,000 payment "shall be proceeding to a public hearing" and therefore does not comply with the mandatory requirements of paragraph J(2) of the Tribunal's Amended Terms of Reference (E(7)).

8

••That the Tribunal failed to û

9

••consider, adequately or at all, whether the Fitzwilton £30,000 payment "shall be proceeding" to a public hearing in the period between 3rd December, 2004 and 1st May, 2005, as required by paragraph J(2) and

10

••make a decision that it should within that period as required by paragraph J(2) (E(8)).

11

••That the J(2) List unlawfully purports to defer a decision as to whether or not to proceed to a public hearing in respect of the many matters apparently listed therein and/or to reserve to the Tribunal an ongoing discretion to make such decision in the future which is not contemplated or permitted by paragraph J(2), so that the Tribunal failed to exercise the power and/or discretion conferred by paragraph J(2) (E(9)).

12

The respondents” response to the foregoing grounds in their notice of opposition is as follows:

13

••In response to E(7) they refer to and explain the heading of the document of 28th April, 2005 and deny that the written record of the J(2) List does not record in writing a decision by the Tribunal that the Fitzwilton £30,000 payment "shall be proceeding to a public hearing" and does not comply with the requirements of paragraph J(2).

14

••In response to E(8) they deny that they failed to consider whether the Fitzwilton £30,000 payment "shall be proceeding" to a public hearing within the period between 3rd December, 2004 and 1st May, 2005 and they further deny that they failed to make that decision within the relevant period.

15

••In response to E(9) the respondents traverse the assertions made in that ground.

16

The respondents” statement of opposition is verified by an affidavit sworn on 29th September, 2005 by Dónall King, the solicitor to the Tribunal. In paragraph 18 Mr. King avers as to what he has been told by the Members of the Tribunal as to the creation of the J(2) List. The work of the Tribunal that was outstanding as of November, 2004 amounted to approximately 160 matters. In sub-paragraphs (e) to...

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