Maigueside Communications Ltd v I.R.T.C.

• Jurisdiction: Ireland
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: [1997 No. 126 J.R.]
• Court: High Court

High Court

[1997 No. 126 J.R.]

Maigueside Communications Ltd. v. I.R.T.C.

Maigueside Communications Ltd., New Limerick FM Ltd., Limerick 95 FM Ltd. and Michael Richardson, John Franks and Wendi Feris-Richardson (Trading as Big L. Radio Limerick)

Applicants

and

The Independent Radio and Television Commission and The Minister for Transport, Energy and Communications

Respondents

Cases mentioned in this report:-

Brandon Book Publishers Ltd. v. Radio Telefís Éireann éireann [1993] I.L.R.M. 806.

In re Dunleavy's Estate [1952] I.R. 86.

East Donegal Co-operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317.

Egan v. Minister for Defence (Unreported, High Court, Barr J., 24th November, 1988).

International Fishing Vessels Ltd. v. Minister for Marine [1989] I.R. 149.

Manning v. Shackleton [1994] 1 I.R. 397; [1994] 1 I.L.R.M. 346.

McCormack v. Garda Síochána Complaints Board [1997] 2 I.R. 489; [1997] 2 I.L.R.M. 321.

Navan Tanker Services Ltd. v. Meath County Council [1998] 1 I.R. 166.

O'Dwyer v. McDonagh (Unreported, High Court, Barr J., 14th October, 1996).

O'Reilly v. Cassidy [1995] 1 I.L.R.M. 306.

R. v. Gaming Board Ex p. Benaim [1970] 2 W.L.R. 1009; [1970] 2 Q.B. 417; [1970] 2 All E.R. 528.

Radio Limerick One Ltd. v. Independent Radio and Television [1997] 2 I.R. 291; [1997] 2 I.L.R.M. 1.

Rajah v. The College of Surgeons [1994] 1 I.R. 384.

The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642; [1987] I.L.R.M. 202.

The State (Elizabeth McGeough) v. Louth C.C. (1956) 107 I.L.T.R. 13.

Webb v. Ireland [1988] I.R. 353; [1988] I.L.R.M. 565.

Judicial review - Fair procedures - Oral hearing - Reasons for decision - Broadcasting licence - Application for sound broadcasting licence - Whether fair procedures were employed in short listing applicants - Whether duty to give reasons - Whether legitimate expectation of oral hearing - Radio and Television Act, 1988 (No. 20) ss. 5 and 6.

Judicial review.

The facts are summarised in the headnote and are fully set out in the judgment of McGuinness J.,infra.

Leave to seek relief by way of judicial review challenging the decision of the respondent was granted by the High Court (Moriarty J.) on the 3rd April, 1997. The applicants brought a motion for discovery seeking discovery of the applications of the four applicants successful in being selected for the second stage. Discovery was refused by the High Court and that refusal was appealed to the Supreme Court which upheld the decision of the High Court delivering judgment on the 10th June, 1997.

The matter came on for hearing in the High Court before McGuinness J. on the 19th and 20th June, 1997.

The Independent Radio and Television Commission ("the Commission")invited expressions of interest in securing a contract to provide local sound broadcasting in the Limerick area in accordance with the provisions of the Radio and Television Act, 1988. Some twenty different groups expressed an interest in the contract and the Commission sought applications by public advertisement. Section 6 of the Act of 1988 sets out a list of matters to which the Commission should have regard in determining who is the most suitable candidate to be awarded a sound broadcasting contract. In its guidelines which were circulated to all those who expressed an interest in applying for the contract, the Commission notified applicants that there would be a two stage decision making process. The first stage involved the Commission making an individual assessment of each written submission with a view to qualifying suitable applications for the second stage. Applicants who were successful in reaching the second stage were to be invited to make an oral presentation at a public hearing. The applicants in these proceedings were unsuccessful in reaching the second stage.

By way of judicial review the applicants challenged the decision of the Commission on the grounds,inter alia, that the Commission had failed to give any or any adequate consideration to the application, had failed to give any reasons sufficient to enable the applicants to ascertain whether the powers of the respondent had been validly exercised, failed to accord the applicants a fair hearing or fair procedures and failed to have regard to the applicants legitimate expectation that they would be considered in a similar and equal manner to each of the other applicants.

Held by the High Court (McGuinness J.), in refusing the relief sought, 1, that the applicants had no legitimate expectation that they would be granted an oral hearing. Even if the Commission had at all times previously granted oral hearings to every applicant, that did not in itself create a legitimate expectation that all future competitions would be run in the same way.

Egan v. Minister for Defence (Unreported, High Court, Barr J., 24th November, 1988) followed.

2. That the giving of reasons for a decision made by an administrative body was not in all cases necessary and the court must distinguish between a situation where a licence was open to a large number of individual applicants and one particular applicant was refused and the situation where there was a competition between applicants and one particular applicant must be chosen and all others excluded.

McCormack v. Garda Síochána Complaints Board [1997] 2 I.R. 489 applied.

3. That this was not a situation where the statute permitted an appeal from the decision of the respondent and therefore reasons were not necessary to give effect to a statutory right of appeal.

Cur. adv. vult.

McGuinness J. 18th July, 1997

The first respondent ("the Commission") was established under s. 3 of the Radio and Television Act, 1988, for the purpose, inter alia, of entering into contracts in accordance with the provisions of the Act for the provision of local sound broadcasting services. The four applicants in these proceedings are separate applicants for a contract to provide local sound broadcasting services in the Limerick area. The applicants' proceedings against the second respondent, the Minister for Energy and Communications, were dismissed by order of the High Court (Kelly J.) on the 6th May, 1997. The Commission had previously contracted with a company called Radio Limerick One Ltd. to provide sound broadcasting services in the Limerick area but this contract was terminated by the Commission in 1996. The history of this matter is fully set out in the judgment of the Supreme Court (Keane J.) in the case ofRadio Limerick One Ltd. v. Independent Radio and Television [1997] 2 I.R. 291, and is irrelevant to the present proceedings save that it gave rise to the position where the Commission sought to enter into a new contract for the provision of sound broadcasting services in the Limerick area.

The statutory provisions relating to the making of applications for sound broadcasting contracts and the manner in which they are to be considered by the Commission are set out in ss. 5 and 6 of the Act of 1988. The process to be carried out by the Commission under ss. 5 and 6 begins by the Commission inviting expressions of interest in the securing of contracts for sound broadcasting services. Areas for local sound broadcasting services are specified by the Minister for Communications having regard to the availability of radio frequencies. The next steps to be taken by the Commission are set out in s. 5 (4), (5), (6) and (7) of the Act of 1988 as follows:-

"5.(4) The Commission shall, subject to the provisions of this Act, invite applications for a sound broadcasting contract for the provision of a sound broadcasting service in each area specified by the Minister under subsection (2) and, subject to the provisions of this Act, may enter into such contracts.

(5) Where the Commission invites applications for a sound broadcasting contract for the provision of a sound broadcasting service it shall by public notice specify the area in relation to which the sound broadcasting service is to be provided pursuant to such contract and by such notice shall invite persons interested in providing such a service to apply for such contract.

(6) Having regard to the findings of the Commission under subsection (1) the Commission may, in considering applications for the award of a sound broadcasting contract, place greater emphasis on one or more of the criteria specified in section 6(2) of this Act and whenever it is the Commission's intention to so do it shall specify such intention to each person who has indicated his intention as being an applicant for a contract.

(7) Every notice under subsection (5) shall -

• (a) be published in at least one national newspaper, and where appropriate, in one local newspaper circulating in the area to be served;

• (b) specify the procedure to be followed in order to make an application;

• (c) specify any other matters which appear to the Commission to be necessary or relevant."

Section 6 of the Act of 1988 sets out the manner of determination of applications for the award of sound broadcasting contracts as follows:-

"6.(1) The Commission shall, in accordance with the provisions of this Act, consider every application for a sound broadcasting contract received by it pursuant to a notice under section 5(5) for the purpose of determining the most suitable applicant, if any, to be awarded a sound broadcasting contract.

(2) In the consideration of applications received by it and in determining the most suitable applicant to be awarded a sound broadcasting contract, the Commission shall have regard to -

• (a) the character of the applicant or, if the applicant is a body corporate, the character of the body and its directors, manager, secretary or other similar officer and its members and the persons entitled to the beneficial ownership of its shares;

• (b) the adequacy of the expertise and experience and of the financial resources that will be available to each applicant and the extent to which the...