Redmond v Flood

• Jurisdiction: Ireland
• Judgment Date: 06 January 1999
• Neutral Citation: 1998 WJSC-SC 13814
• Date: 06 January 1999
• Docket Number: [S.C. No. 352 of 1998]
• Court: Supreme Court

1998 WJSC-SC 13814

THE SUPREME COURT

Hamilton C.J.

O'Flaherty J.

Denham J.

Barrington J.

Murphy J.

352/98

REDMOND v. JUSTICE FLOOD

JUDICIAL REVIEW

BETWEEN

GEORGE REDMOND

Applicant

and

MR. JUSTICE FEARGUS FLOOD, THE SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS

Respondent

Citations:

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S4

HAUGHEY V MORIARTY UNREP SUPREME 28.7.1998

TRIBUNAL OF INQUIRY ACTS 1921–1998

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S1

Synopsis

Constitutional Law

Tribunal of Inquiry; public hearings; terms of reference; right to privacy; fair procedures; constitutional justice; challenge in respect of investigation of allegations against the applicant by Tribunal of Inquiry into Certain Planning Matters; whether the Tribunal had misinterpreted its Terms of Reference; whether the Terms of Reference were ultra vires the Tribunals of Inquiry (Evidence) Acts, 1921–1998 in that they were too broad to constitute definite matters of urgent public importance; whether right to privacy would be infringed by public hearing of allegations; whether fair procedures required that proceedings of the Tribunal be conducted in private; whether Tribunal was required to hold private inquiry before proceeding to a public inquiry; whether prima facie case was required before proceeding to a public inquiry; whether fair procedures required that applicant should see the evidence against him prior to the public inquiry; Tribunals of Inquiry (Evidence) Acts, 1921–1998

Held: There was no arguable case that the Tribunal had misinterpreted its terms of reference; there was no arguable case that the Terms of Reference were ultra vires the Tribunals of Inquiry (Evidence) Acts, 1921–1998; the Tribunal was not obliged to hold a private inquiry before proceeding with its public inquiry; appeal dismissed Redmond v. Flood - Supreme Court: Hamilton C.J.*, O'Flaherty J., Denham J., Barrington J., Murphy J. (*Judgment of the Court delivered by Hamilton C.J.) - 06/01/99 - [1999] 3 IR 79 - [1999] 1 ILRM 241

While the terms of reference of the Tribunal of Inquiry did not give the tribunal a roving commission, its powers were limited to the investigation of and reporting on acts associated with the planning process of which it became aware during the course of the inquiries authorised by paragraphs A1 to A4 of its terms of reference and which in its opinion amounted to corruption or an attempt to compromise the disinterested performance of public duties. These were definite matters of urgent public importance within the contemplation of the Houses of the Oireachtas when the relevant resolutions were passed. The applicant had not established an arguable case that the terms as interpreted by the tribunal were ultra vires the Tribunals of Inquiry (Evidence) Act 1921. The tribunal was entitled to decide that certain allegations were of sufficient substance to warrant investigation at a public inquiry. On the evidence before the court there were no grounds on which it could be argued that the tribunal had either exceeded its jurisdiction or failed to observe fair procedures. The Supreme Court so held in dismissing the relief sought by the applicant.

1 Judgment of the Court delivered on the 6th day of January 1999.

2 On the 22nd day of December 1998 the Applicant here in applied to the High Court (Mr. Justice C.Kelly) for leave to apply for the following reliefs:-

3 (1) An Order of Certiorari by way of an application for judicial review of the decision of the Respondent (made on a date unknown to the Applicant) to investigate certain allegations made concerning the Applicant by one James Gogarty.

4 (2) An Order of Certiorari by way of an application for judicial review of the decision of the Respondent (made on a date unknown to the Applicant) to conduct a full public inquiry into certain allegations made concerning the Applicant by one James Gogarty.

5 (3) An Order of Prohibition by way of an application for judicial review prohibiting the Respondent from investigating or further investigation certain allegations made concerning the Applicant by one James Gogarty.

6 (4) An Order of Prohibition by way of an application for judicial review prohibiting the Respondent from conducting a public inquiry into certain allegations made concerning the Applicant by one James Gogarty.

7 (5) A Declaration that the provisions of paragraph A5 of the Terms of Reference of the Tribunal of the Tribunal of Inquiry referred to in the title hereto (hereinafter "the Tribunal") do not authorise the Respondent as the sole member thereof to inquire into or investigate any matter.

8 (6) In the alternative a Declaration that the provisions of paragraph A5 of the Terms of Reference of the Tribunal do not authorise the Respondent as the role member thereof to inquire into or investigate any matter in public.

9 (7) Further and other relief, and

10 (8) Costs.

11 By order of the High Court made on that date, it was ordered that

12 (i) that the Applicant do have leave by way of application for judicial review for the reliefs set forth at paragraphs (2), (4), (7) and (8) on the ground that the Tribunal has proceeded and proposes to proceed in a manner which constitutes a breach of fair procedures and the Applicant's constitutional rights to same.

13 The other reliefs sought by the Applicant were refused by the learned trial judge and the Applicant has now appealed to this Court against such refusal.

14 As appears from the grounds of appeal dated the 30th day of December 1998, the Applicant applies to this court for:-

15 Leave to apply for the following reliefs by way of judicial review, such leave having been refused by the High Court by order of Mr. Justice Cyril Kelly dated the 22nd day of December, 1998:-

16 (i) An order of certiorari by way of an application for judicial review of the decisions of the Respondent (made on a date unknown to the Applicant) to investigate certain allegations made concerning the Applicant by one James Gogarty;

17 (ii) An order of prohibition by way of an application for judicial review prohibiting the Respondent from investigating, or further investigating, certain allegations made concerning the Applicant by one James Gogarty;

18 (iii) A declaration that the provisions of paragraph A5 of the Terms of Reference of the Tribunal of Inquiry referred to in the title hereto (hereafter "the Tribunal") do not authorise the Respondent, as the Sole Member thereof, to inquire into or investigate any matter.

19 (iv) In the alternative, a declaration that the provisions of paragraph A5 of the Terms of Reference of the Tribunal do not authorise the Respondent, as the sole member thereof, to inquire into or investigate any matter in public.

20 The grounds upon which the relief herein before referred to as sought in the High Court are set out in the Statement of Grounds filed by the Applicant and dated the 22nd day of December 1998 as follows:-

"Grounds upon which such relief is sought:"

21 (i) The allegations made by the said James Gogarty concerning the Applicant (herein after referred to as the Gogarty allegations) are not matters which the Tribunal has been charged by Dail Eireann to inquire urgently into under its Terms of References and as such the Respondent has not entitlement to inquire into same;

22 (ii) Insofar as the Gogarty allegations amount to allegations of action by the Applicant associated with the planning process which may amount to corruption the Tribunal's obligation under its Terms of Reference to report thereon does not authorise the Respondent to investigate those allegations;

23 (iii) Without prejudice to the aforementioned grounds, if the Tribunal is entitled or obliged to investigate the Gogarty allegations it is to obliged to do so in private since the Tribunal's entitlement to conduct a full public; inquiry arises only in relation to matters falling within paragraphs A1, A2, A3, A4,E1 and E2 of its Terms of Reference;

24 (iv) Without prejudice to the aforementioned grounds, if the Tribunal is entitled or obliged to investigate the Gogarty allegations it is obliged to do so in private since under paragraphs Band E of its Terms of References, the Tribunal's entitlement to conduct a full public inquiry to relation to any particular matter arises only once it has determined that sufficient evidence exists in relation to that matter to warrant proceeding to a full public inquiry in relation thereto and

25 (a) The Gogarty allegations and the other evidence gathered by the Tribunal in relation thereto are not capable of constituting sufficient evidence in this sense, and

26 (b) The Tribunal has failed to afford the Applicant an opportunity to make representatives is relations to the evidence available to it before reaching a determination as to the sufficiency thereof;

27 (c) The Tribunal failed to carry out an investigation prior to making a determination;

28 (d) The Tribunal has now received information since.

29 (v) The Tribunal's interpretation of paragraph A5 of its Terms of Reference purports to authorise the Tribunal to determine that any matter which it choose to investigate is a definite matter of urgent public importance and as such is ultra vires the Tribunals of inquiry (Evidence) Acts 1921 to 1998;

30 (vi) The Tribunal has failed to set out its final interpretation of its Terms of Reference but has instead set out its initial interpretation and has invited and received submissions in relation thereto and has further stated that it is entitled to revise its interpretation of its Terms of Reference with the result that the status of the said initial interpretation is doubtful and the Applicant cannot know how the Tribunal interprets its Terms of Reference and, in particular paragraph A5 thereof;

31 (vii) The Tribunal has proceed and proposes to...