High Court dismisses judicial review against Tribunal for failing to explicitly record a decision to proceed with public hearings.

[2006] IEHC 397

THE HIGH COURT

[2005 No. 1018 J.R.]

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

Judgment of Mr. Justice Feeney delivered on the 14th day of December, 2006.

1. This is an application for judicial review brought against the named respondents. They are members of the Tribunal of Inquiry into

Certain Planning Matters and Payments. The Tribunal was appointed by instrument of the Minister for the Environment and Local

Government dated the 4th November, 1997, as amended by subsequent instruments dated the 15th July, 1998, the 24th October,

2002, the 7th July, 2003 and the 3rd December, 2004. The Tribunal was established pursuant to the provisions of the Tribunals of

Inquiry (Evidence) Act 1921 as adapted and amended by subsequent enactments. The 1998 instrument added paragraph E to the

Tribunal’s terms of reference whereby the Tribunal was obliged to enquire urgently into and report to the clerk of the Dáil and to make

such findings and recommendations as its sees fit, in relation to…

“Whether any substantial payments were made or benefits provided, directly or indirectly, to Mr. Raphael Burke which

may, in the opinion of the sole member of the Tribunal, amount to corruption or involved attempts to influence or

compromise the disinterested performance of public duties or were made or provided in circumstances which may give rise

to a reasonable inference that the motive for making or receiving such payments was improperly connected with any

public office or position held by Mr. Raphael Burke, whether as Minister, Minister of State or elected representative.”

2. By the instrument dated the 3rd December, 2004, the terms of reference of the Tribunal were further amended so as to provide,

inter alia:

“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 2008 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.

J.(3) The Tribunal may in the course of investigating any additional matter under paragraph (2) or a matter being

investigated under paragraph J(1) investigate any other matter of which it becomes aware when it is satisfied that such

further investigation is necessary for the Tribunal to make findings on any such additional matter referred to in paragraph

J(1) above.

J.(4) Notwithstanding any other provision of these Terms of Reference the presentation to the Clerk of the Dáil of an

interim report or reports, as paragraph J(1)(a)-(g), J(2) and, where applicable, J(3) shall constitute compliance by the

Tribunal with all of its Terms Of Reference, as hereby amended, and no further investigation, or report shall be required of

or from the Tribunal on any other matter.

J.(5) Nothing in these amended Terms of Reference shall preclude the Tribunal from conducting hearings or investigations

into any compliance or non-compliance by any person with the orders or directions of the Tribunal.

J.(6) The Tribunal may in its sole discretion – in respect of any matter within paragraphs J(1), J(2) and J(3) of these

amended Terms of Reference – decide:

(I) To carry out such preliminary investigations in private as it thinks fit using all the powers conferred on it under

the Acts, in order to determine whether sufficient evidence exists in relation to the matter to warrant proceedings

to a public hearing if deemed necessary, or

(II) Not to initiate a preliminary investigation and/or a public hearing of evidence in relation to the matter

notwithstanding that the matter falls within the Tribunal’s Terms of Reference, or

(III) Having initiated a preliminary investigation in private (and whether or not same has been concluded) but prior

to the commencement of any public hearing of evidence in the matter, to discontinue or otherwise terminate its

investigation notwithstanding that the matter falls within the Tribunal’s Terms of Reference.

In exercising its discretion pursuant to this paragraph the Tribunal may have regard to one or more of the factors referred

to below:

(I) The age and/or state of health of one or more persons who are likely to be in a position to provide useful

information (including, but not confined to, oral evidence to be given privately or publicly), including the age and/or

likely state of health of any such person at such date in the future when that person or persons might be expected

to be called upon to give oral evidence or to otherwise cooperate with the tribunal, and in particular the issue as to

whether or not their age and/or state of health is or is likely to be an impediment to such person being in a position

to cooperate with the Tribunal or to give evidence to the Tribunal in private or in public;

(II) The likely duration of the preliminary investigation or public hearing into any matter;

(III) The likely cost (or other use of the resources of the Tribunal) of such investigation or any stage of the

investigation into any matter;

(IV) Whether or not the investigation into the matter is likely to provide evidence to the Tribunal which would

enable it to make findings of fact and conclusions and/or to make recommendations;

(V) Any other factors which in the opinion of the Tribunal would, or would be likely to, render an investigation, or

the continued investigation into any matter inappropriate, unnecessary, wasteful of resources, unduly costly,

unduly prolonged or which would be of limited or no probative value.

(7) Subject to paragraph J(3) any matter not brought to the attention of the Tribunal or of which it is not aware by the

16th day of December 2004 shall not be the subject of any investigation by the Tribunal.”

3. In these proceedings the Applicants seek relief by way of judicial review for a declaration that the Respondents have failed to

comply with paragraph J(2) of the Tribunals amended terms of reference concerning 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 also seek consequential orders of certiorari and prohibition.

4. The issues to be considered by this court in determining this application are, whether or not the Tribunal failed to comply with the

requirements of paragraph J(2) of its terms of reference and whether or not such requirements are mandatory and if there was such

failure as to whether or not the Tribunal is competent to proceed to a public hearing in relation to the Fitzwilton £30,000 Module.

5. The Applicants contend that the clear effect of paragraph J(2) is that the Tribunal is competent to proceed to a public hearing in

any matter, other then matters specified in paragraph J(1), if and only if the Tribunal considered whether to do so and decided that it

would so do and recorded that decision in writing not later than the 1st May, 2005. The Applicants contend that strict compliance

with paragraph J(2) is a mandatory prerequisite to any public hearing in respect of any matter other than a matter specified in

paragraph J(1). The Respondents contend that there has been compliance with paragraph J(2) and contend in the alternative that if

there has not been compliance that such compliance is not a precondition to its jurisdiction to proceed to a public hearing.

6. The Applicants were informed by the Tribunal of its purported decision to proceed to a public hearing by letter of the 15th July,

2005. The Fitzwilton £30,000 payment matter had been included in a J(2) list as one of the matters in a list of additional matters

pursuant to paragraph J(2) of the amended terms of reference which was typed on the 28th April, 2005 and was then signed by each

of the three Respondents on that date. It is averred in the affidavit of Donal King sworn on behalf of the Respondents that prior to

each of the matters being entered into that J(2) list that the Tribunal members had considered each matter at various times between

November, 2004 and April, 2005 and as the Tribunal members considered each matter and decided whether or not that matter should

go to public hearing and that the Fitzwilton £30,000 payment was one such matter. The Respondents decided in the course of such

review that the Fitzwilton £30,000 payment was a matter which should proceed to a public hearing. It was further averred that the

J(2) list represents the record in writing of the decision in each matter, and having regard to the wording and intent of paragraph J(2)

of the amended terms of reference it does not have any other purpose.

7. The Applicants contend that the J(2) list as prepared by the Respondents and signed by them on the 28th April, 2005, manifestly

does not comply with the requirements of paragraph J(2) of the Tribunal’s terms of reference.

8. The Applicants contend that the issue falls to be determined by reference to and only to, the J(2) list document of the 28th April,

2005 and that document and only that document constitutes the record of the Tribunal’s decision to proceed to a public hearing and

that such document must establish on its face compliance with paragraph J(2). It is contended on behalf of the Applicants that

paragraph J(2) required that, before proceeding to a public hearing in relation to the Fitzwilton £30,000 Module that the Tribunal

would during the period between the 3rd December, 2004 and the 1st May, 2005:

1. Consider the material in the Tribunal’s possession relating to the subject matter of the module and

2. Decide that the issue of the payment was one that would proceed to a public hearing and

3. Record its decision in writing.

9. It is claimed that strict compliance with paragraph J(2) is a mandatory prerequisite to any public hearing and that the J(2) list as

prepared by the Respondents manifestly does not comply with the requirements of paragraph J(2) as such document does not record

in writing a decision by the Tribunal that the Fitzwilton £30,000 Module “shall be proceeding to a public hearing” and therefore does

not comply with the mandatory requirements of paragraph J(2).

10. In considering the matters in issue herein the court should have regard to the special nature of a body such as the Tribunal of

inquiry. This is particularly relevant when considering the terms of reference of a Tribunal of Inquiry. Denham J. dealt with the special

nature of such Tribunals in her judgment in O’Brien v. Moriarty (Unreported delivered the 16th February, 2006) at p. 6 of that

judgment where she stated:

“In contemplating the terms of reference of a Tribunal of Inquiry the special nature of such a body requires to be borne in

mind. First, the nature of its establishment. It was established by resolutions of both Houses of the Oireachtas by persons

elected in this democracy. It is an organ specifically chosen by the representatives of the people to inquire into specific

issues. The fact that the terms of reference are rooted in resolutions of both Houses of the Oireachtas is an important

factor.”

11. In the same case Hardiman J. also commented on the nature of statutory Tribunals. He did so in a dissenting judgment but the

section of the judgment hereinafter set out does form part of that dissent. His description of the nature and powers of a Tribunal set

up under the 1921 Act are of general application and in this courts view identifies the nature and power of such Tribunals. At p. 29 of

his judgment Hardiman J. stated:

“The words of the 1921 Act as amended and the terms of reference are of central importance in this case. The first

defines the power of Houses of the Oireachtas themselves to call for a statutory inquiry: they cannot seek an enquiry

with a roving, or open-ended, or indefinite remit. The terms of reference are the instrument whereby the Houses control

the Inquiry for which they have called. The words of the terms of reference must be taken to express the intention of the

Houses. It is for the Tribunal to work within these terms and not unilaterally to extend them. That power is restricted to

the houses, who have provided an easy process for seeking an extension of the terms if needed. A construction of the

terms of reference according to the ordinary legal rules of construction is essential if the primacy of the Oireachtas in this

area is to be recognised and given effect to.”

13. This court in considering the terms of reference set out at paragraph J(2) will do so on the basis of giving the words therein their

ordinary and natural meaning and will as required apply the ordinary legal rules of construction. In adopting such an approach this

court is recognising the primacy of the Oireachtas in this area and is giving recognition and effect thereto.

14. It is therefore appropriate in seeking to interpret how the word “shall” should be treated to have regard to the approach adopted

by the courts in dealing with such word in statute or statutory instrument. The Supreme Court in the case of The State (Elm

Developments Limited) v. An Bord Pleanála [1981] ILRM 108 at p. 110 in the judgment of Henchy J. considered the use of the word

shall in a statute or statutory instrument. In his judgment Henchy J. stated:

“Whether a provision in a statute or statutory instrument, which on the face of it is obligatory (for example, by use of the

word “shall”), should be treated by the courts as truly mandatory or merely directory depends on the statutory scheme as

a whole and the part played in that scheme by the provision in question. If the requirement which has not been observed

may fairly be said to be an integral and indispensable part of the statutory intendment, the courts will hold it to be truly

mandatory, and will not excuse a departure from it. But if, on the other hand, what is apparently a requirement is in

essence merely a direction which is not of the substance of the aim and scheme of the statute, non-compliance may be

excused.”

15. It is clear from reading the entire of the additional terms of reference added by instrument of the 3rd December, 2004, that an

integral and indispensable part of the intendment was that a definitive identification of additional matters set down in writing was

required. This court is satisfied that it can be correctly stated that it was an integral and indispensable part of the Oireachtas’s

intendment that there should be by the 1st May, 2005, a written record of the additional matters in respect of which the Tribunal had

made a decision by that date. This court is therefore satisfied that the use of the word “shall” in J(2) was truly mandatory and that

the same applies to each of the five uses of the word “shall” in paragraph J(2).

16. In considering whether or not there was compliance with such mandatory requirement the court must look at such issue as a

matter of fact and of law. It is not relevant to the courts consideration of same as to whether the Tribunal itself considered that the

steps taken by it in compiling the document of the 28th April, 2005, complied with the mandatory requirements. The appropriateness

of such an approach is confirmed by the clear terms of paragraph J(2).

17. The consequences of this court finding that the use of the word “shall” in paragraph J(2) as being truly mandatory is that the

entitlement of the Tribunal to proceed to a public hearing pursuant to paragraph J(2) is dependant upon the Tribunal having made a

decision and recorded such a decision by the 1st May, 2005. This court is satisfied that compliance with paragraph J(2) is a

necessary prerequisite to the Tribunal proceeding to a public hearing in respect of the Applicants herein. The words of paragraph J(2)

are plain and require that a decision be recorded in writing by the 1st May, 2005. The record of such a decision must be in writing and

cannot be in the form of an oral decision. It is also clear that there is no obligation as to the form or content of the written record

but rather that the Tribunal must record the decision in writing.

18. The consequences of failure to record a decision in writing pursuant to J(2) by the 1st May, 2005, would be that the Tribunal

could not proceed to a public hearing. The requirement is mandatory and where there is such a mandatory requirement set forth in

clear and unambiguous terms it should not and must not be disregarded.

19. In looking at the document of the 28th April, 2005, this court must consider whether or not on its face it demonstrates

compliance with paragraph J(2). It is contended for on behalf of the Applicants that the document does not comply as it does not

indicate that the Fitzwilton £30,000 Module shall be proceeding to a public hearing and record that decision in writing and it is claimed

that the document effectively defers a decision as to whether or not to proceed to a public hearing. It is claimed that the document

relied on by the Respondents far from recording any such decision in fact demonstrates the opposite and is inconsistent with such a

decision having been made. In this regard particular emphasis is placed on the use of the word “may” in the second paragraph of the

text. It is on the above basis that the Applicants contend that the Tribunal has failed to exercise or exercise properly the power and

or discretion conferred on it by paragraph J(2) of the terms of reference.

20. In considering those contentions the court must look at the entire of the document dated the 28th April, 2005. In both the

written and oral submissions the Applicants paid little if any regard to the heading on the document. That heading reads as follows:

“List of additional matters pursuant to paragraph J(2) of the amended terms of reference passed by resolution of Houses

of the Oireachtas, on the 17th November, 2004.”

21. That heading is of considerable assistance to the court in endeavouring to determine the meaning and effect of that document.

The court accepts that the issue raised in this case falls to be determined by reference to, and only to, that document of the 28th

April, 2005. However it is the heading of that document which gives context and meaning to the document. It is expressly stated that

the list of additional matters are pursuant to paragraph J(2). It is apparent that the use of the word “pursuant” in a postpositive form

followed by the word “to” is demonstrative of a clear stated intention that the document has been prepared to be expressly in

agreement or conformity with paragraph J(2) of the amended terms of reference. The court is satisfied that the use of such words

including express reference to a list is demonstratively and self evidently a list of matters that the Tribunal had decided as of the 28th

April, 2005, should proceed to a public hearing. It is further emphasised not only by the cross-reference to J(2) of the amended terms

of reference but also by the use of the words “additional matters”. Those words “additional matters” are expressly contained in

paragraph J(2) and the reference in the title is a clear and explicit identification that the list is being prepared pursuant to and to

ensure compliance and conformity with the requirements of paragraph J(2).

22. The document of the 28th April, 2005, goes on to identify, in the first paragraph of the text, that matters have been designated

and are thereinafter listed. That list is in writing and the decision relating thereto is recorded in writing. The precise words of the

decision are not used but this court is satisfied that the obligation is to identify that a decision was made and to record same in

writing and that there is no obligation to use any specific words. It is the making of the decision and the recording of that decision in

writing rather than the use of specific words recording the decision which is required by paragraph J(2).

23. One of the matters contained in the list forming part of the document of the 28th April, 2005 and designated therein is Fitzwilton-

MMDS-Payment to Ray Burke by Rennicks.

24. The claim by the Applicants that the document of the 28th April, 2005, effectively defers a decision is substantially based upon

the wording of the second paragraph in the text and in particular the use of the word “may” therein. The word “may” is used in

relation to what is identified as “issues” and does not attach to what is identified as a matter or matters or part of a matter which

have been designated and listed. A reading of the second paragraph of the document confirms that as of the 28th April, 2005,

additional matters had been designated and listed. At very best the argument that can be put forward on behalf of the Applicants,

from a correct and proper reading, of the second paragraph of the document of the 28th April, 2005, is that the Tribunal were

reserving a right, which it is contended they did not have, at some future date to make a decision not to proceed with an issue which

was part of an additional matter. The “may” used in the second paragraph relates to a possible future decision which was not made

as of the date upon which the document was prepared and it is clear that as of that date, that is the 28th April 2005, additional

matters had been designated and listed. This court is satisfied that the words contained in paragraph 2 of the text of the document

of the 28th April, 2005, are demonstrative of a decision having been made pursuant to J(2) as to the additional matters which were to

proceed to public hearing and recorded in writing.

25. During the course of argument counsel on behalf of the Applicants also made reference to the fifth paragraph in the text of the

document of the 28th April, 2005, in support of the argument that a decision had been deferred rather than made as to the additional

matters required by paragraph J(2). That paragraph reads as follows:

“Decisions as to whether or not any matter listed below should continue to undergo private enquiry, or should proceed to

public enquiry will continue to be subject to review by the Tribunal in accordance with its terms of reference (as

amended).”

26. The reference to any review taking place in accordance with the terms of reference and the use of the words contained in that

paragraph clearly lead to a finding that such paragraph must be interpreted by reference to paragraph J(6) of the amended terms of

reference. When one looks at paragraph J(6) one finds that that paragraph is dependant upon a matter being within J(1), J(2) and

J(3). For any matter covered by paragraph J(2) to be covered by paragraph J(6) a decision and designation pursuant to paragraph

J(2) would have to have been made. That is what occurred in the document of the 28th April, 2005, and the listed matters referred

to are the designated and listed additional matters pursuant to paragraph J(2) as recorded in the document of the 28th April, 2005.

27. This court is satisfied that the purpose and meaning of the list forming part of the document of the 28th April, 2005, is clear from

the face of the document and from the contents thereof. The court is satisfied that the document of the 28th April, 2005, is a

document which clearly is a written record of the decision taken by the members of the Tribunal on the 28th April, 2005, which was

prior to the 1st May, 2005, listing the additional matters which should proceed to public hearing. The court is satisfied it represents a

written record of the additional matters which the Tribunal decided shall be proceeding to public hearing. No precise wording was

required and the document records the decision in writing.

28. The court is satisfied that the Tribunal has compiled with the requirements of paragraph J(2) and that the list forming part of the

document of the 28th April, 2005, satisfies those requirements.

29. In the light of the above finding this court does not have to address the alternative arguments which were put forward on behalf

of the Respondents relating to the discretionary considerations which were claimed might arise if the court were to have identified

non compliance by the Respondents with the requirements of paragraph J(2). It was expressly identified by counsel for the

Respondents that such argument was a “fall back argument”.

30. For the reasons outlined above the court will decline the application for judicial review.