Fitzwilton Limited and others -v- Judge Alan Mahon and others, [2007] IESC 27 (2007)

Docket Number:37/07
Party Name:Fitzwilton Limited and others, Judge Alan Mahon and others
Judge:Denham J. / Kearns J.
 
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JUDGMENT BY: Denham J.

THE SUPREME COURT

[S.C. No: 037 of 2007]

Denham J.

Geoghegan J.

Fennelly J.

Kearns J.

Butler J.

Between/

Fitzwilton Limited and Goulding Limited

and Rennicks Sign Manufacturing

Applicants/Appellants

and

Judge Alan Mahon,

Judge Mary Faherty,

Judge Gerard Keyes,

Members of the Tribunal of Inquiry

into Certain Planning Matters and Payments

Respondents

Judgment delivered the 4th day of July, 2007 by Denham J.

  1. A single issue arises for consideration on this appeal. The question is whether the Tribunal document of 28th day of April, 2005, which will be set out fully in this judgment, complies with paragraph J(2) of the amended Terms of Reference of the Tribunal of Inquiry into Certain Planning Matters and Payments.

  2. Fitzwilton Limited, Goulding Limited and Rennicks Sign Manufacturing, the applicants/appellants, hereinafter referred to as 'the applicants,' have appealed from the judgment of the High Court (Feeney J.) of the 14th December, 2006, and the subsequent order of 11th January, 2007, which refused their application.

  3. The applicants sought the following reliefs, by way of an application for judicial review:-a. A declaration that the Tribunal has 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 that, accordingly, any such public hearing is ultra vires the Tribunal and in breach of the applicants' constitutional rights. b. An Order of Certiorari quashing the purported decision of the Tribunal to proceed to a public hearing in relation to the Fitzwilton £30,000 payment.

    1. An Order of Certiorari quashing the entry in the Tribunal's so-called "J(2) list" relating to the applicants. d. An Order of Prohibition restraining the Tribunal from holding any public hearing in relation to the Fitzwilton £30,000 payment and any public hearing in any matter related thereto.

  4. The context in which this issue arises is as follows. On behalf of the applicants it was deposed by Kevin McGoran, in an affidavit dated 20th September, 2005, that in June, 1989 the Fitzwilton Group made a political contribution to Fianna Fáil in the amount of £30,000. The contribution, it was stated, was made via the then Fianna Fáil Minister, Ray Burke and was made in the form of a "pick-me-up". It was submitted that the entirety of the political contribution was intended for the Fianna Fáil party. However, it was deposed that, in 1998 the applicants became aware that Fianna Fáil had not received all the money, that the greater portion of the money had not been passed on to Fianna Fáil by Ray Burke. The Tribunal made inquiries into the Fitzwilton £30,000 payment and in 1998 the Tribunal contacted the applicants, who co-operated with the investigations. From April, 2000 to February, 2003 the applicants heard nothing further from the Tribunal. It was deposed on behalf of the applicants that they had presumed that the Tribunal was satisfied that the sum was a bona fide political contribution to Fianna Fáil and they were surprised when they were contacted by the Tribunal, by letter dated 21st February, 2003, indicating that the Tribunal was considering making further orders for discovery. Once again the applicants assisted the Tribunal. It was deposed on behalf of the applicants that thereafter they believed that they had allayed any concerns the Tribunal might reasonably have had regarding the contribution of £30,000 and they considered that no issue remained unresolved which would warrant the holding of a public inquiry into the matter. On the 30th September, 2003 submissions were sent to the Tribunal on behalf of the applicants setting out why a public inquiry into the political contribution by the applicants to Fianna Fáil was not warranted. By letter dated 1st October, 2003, the applicants received an acknowledgement of the receipt of the submissions. That letter, from the solicitor to the Tribunal, contained the sentence: "I confirm that I have now brought same to the attention of the Tribunal Members and I will revert to you in early course."

    In the absence of communication from the Tribunal the applicants concluded that the Tribunal had accepted that a public hearing was not warranted. However, the Tribunal wrote to the applicants in July, 2005. By letter dated 4th day of July, 2005, the Tribunal rejected the applicant's submissions of 2003 that a public hearing of the Fitzwilton £30,000 payment was not required. Thereafter there was correspondence between the applicants and the Tribunal, which is not relevant to the issue before the Court.

  5. The Tribunal was appointed by instrument of the Minister for Environment and Local Government on 4th November, 1997, which instrument was amended on the 15th July, 1998, the 24th October, 2002, the 7th July, 2003, and the 3rd December, 2004.

  6. In its Fourth Interim Report the Tribunal:- (i) informed the Oireachtas of the extent of its workload and its likely duration; (ii) requested amendments to the Terms of Reference; and, (iii) informed the Oireachtas of other related matters. The Tribunal estimated that if all the inter-linked modules currently destined for public hearings were to proceed to public hearing, the public hearings would extend until 2007 - 2008, and would be reported on thereafter. If this workload was completed by the Tribunal as estimated, the Tribunal pointed out that it would not be in a position to embark upon any further public hearings on any other matters until 2009. The Tribunal referred to other matters identified by the Tribunal as likely to merit investigation in public, and estimated that the likely duration of such additional modules was approximately three to four years from commencement. In addition, time would be required to consider the submissions and write the report. The Tribunal estimated that, if it retained its present constitution of three Members and the current Terms of Reference, the likely timescale for completion of the currently identified workload was ten or eleven years, i.e. until 2014 or 2015.

    The Tribunal requested the Oireachtas to amend its Terms of Reference. The amendment suggested by the Tribunal commenced: "Where the Tribunal in the course of its inquiries is made aware of any acts or payments which fall within its Terms of Reference the Tribunal may in its sole discretion decide; …"

    However, this request relating to 'its sole discretion' was not granted.

  7. The Houses of the Oireachtas, while they did amend the Terms of Reference of the Tribunal, did not follow the suggestions of the Tribunal. Rather, the Houses of the Oireachtas set specific limitations as to time and subject matter.

    On the 3rd December, 2004, the Houses of the Oireachtas amended the Terms of Reference of the Tribunal. The scope of inquiry of the Tribunal was limited. Paragraph J(1) set out a list of specified matters which were to proceed to a conclusion. Paragraph J(2) gave the Tribunal a discretion to consider additional matters, but required specific steps to be taken before a stated date. The precise wording of paragraphs J(1) and J(2) were as follows:- "J(1) The Tribunal shall, subject to the exercise of its discretion pursuant to J(6) hereunder, proceed as it sees fit to conclude its inquiries into the matters specified below (and identified in the Fourth Interim Report of this Tribunal) and to set out its findings on each of these matters in an interim report or reports or in a final Report:

    (c) The Carrickmines I Module;

    (d) The Fox and Mahony Module;

    (e) The St. Gerard's Bray Module;

    (f) The Carrickmines II Module and related Issues;

    (g) The Arlington/Quarryvale I Module;

    (h) The Quarryvale II Module;(i) Those modules that are interlinked with the modules set out at paragraphs (a) to (f), and that are referred to in paragraph 3.04 of the Fourth Interim Report of the Tribunal.

    J. (2) 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 those 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."

    Paragraph J(6) gave to the Tribunal 'in its discretion' the right to decide, in respect of matters within paragraph J(1), J(2) and J(3), whether it would proceed with a matter.

  8. By paragraph J(2) the Houses of the Oireachtas required the Tribunal to take certain steps. The paragraph sets out mandatory requirements, as may be seen by the words at the commencement: "The Tribunal shall ...". Thereafter paragraph J(2) states in clear terms that the Tribunal shall consider and decide upon the additional matters by the 1st day of May, 2005. There is a requirement that the decision be recorded in writing and that the Tribunal notify all parties affected by the decision at such time as it considers appropriate. Thus the Tribunal was required to take two important steps by the 1st of May, 2005:

    (a) to consider additional matters to go to public hearing; and,

    (b) to decide which matters, (additional to those listed in J(1)), .

    shall proceed to a public hearing;

    Paragraph J(2) specifically required that the consideration and decisions be completed by the 1st May, 2005. There is a reference to the discretion set out in paragraph J(6), to which I shall return.

  9. It is the Tribunal's case that the...

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