Supreme Court allows appeal, declaring Tribunal lacks jurisdiction for public hearing due to failure to meet statutory time limits.

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.

c. 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 document of the Tribunal dated 28th April, 2005, records the decision required in paragraph J(2).

Dónall King, in his affidavit sworn on 29th September, 2005, deposed in paragraph 18(k):

"In summary, lest there be any doubt, and having regard to the applicants' argument that the J2 list as prepared and

finalised does not record therein a decision to proceed to public hearing in the matter of the Fitzwilton ₤30,000 payment,

I have been specifically instructed and authorised by the Chairman and Members to state that the said decision was made

by them and that the J2 list of 28th April, 2005 is their record in writing of the making of that decision."

10. The redacted document of the Tribunal of the 28th day of April, 2005, is as follows:

"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 following matters have been designated as hereinafter listed for ease of reference.

The Tribunal may decide to continue its inquiries and/or proceed to public hearing in respect of one or more issues which

are currently part of a matter designated and listed herein.

The Tribunal may decide to amalgamate one or more issues in one designated matter with one or more issues in another

designated matter, and to proceed to privately and/or publicly investigate them in their amalgamated form.

The designation of any particular matter as hereinafter listed may be changed if the Tribunal so determines, in

circumstances where the subject matter remains the same.

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

public inquiry will continue to be subject to review by the Tribunal in accordance with its Terms of Reference (as

amended)."

There is a heading, "J.2 List", followed by a redacted area, and then "Fitzwilton/MMDS/payment to Ray Burke by Rennicks". The

document is dated the 28th day of April, 2005, and is signed by the three Members of the Tribunal.

This document requires to be construed to see if it meets the terms of paragraph J(2) of the Amended Terms of Reference.

11. In giving judgment, on the 14th December 2006, the High Court held that the word 'shall' in paragraph J(2) was mandatory. In

construing the document the learned High Court judge found considerable assistance in the heading. Having considered the document

he held:

"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.

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

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

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”.

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

12. The applicants have appealed against the order and judgment of the High Court. Twelve grounds of appeal were filed. In essence

the grounds of appeal are that:-

a) The High Court erred in fact and in law in determining that the Tribunal made a decision on the 28th April, 2005 to

proceed to a public hearing in relation to the Fitzwilton ₤30,000 module in accordance with the requirements of paragraph

J(2) of the Tribunal's amended terms of reference.

b) That the learned trial judge erred in fact and in law in determining that the document prepared by the Tribunal on the

28th day of April, 2005 (the J2 list) recorded a decision that the Tribunal shall proceed to public hearing in relation to the

Fitzwilton ₤30,000 module.

c) That the learned trial judge erred in fact and in law in failing to determine that the purported decision of the Tribunal to

proceed to a public hearing of the Fitzwilton ₤30,000 Module was not made in accordance with the provisions of

paragraph J(2) of the Tribunal's amended Terms of Reference and so were ultra vires the powers of the Tribunal.

d) Several grounds of appeal related to the construction of the words of the J2 list by the High Court, and it was

submitted that the learned trial judge had erred.

13. Submissions

On behalf of the applicants it was submitted that the learned trial judge had erred in fact and in law. It was argued that the

document of 28th April, 2005 does not comply with paragraph J(2). It was submitted that the document shows deferral of a decision

as to whether or not to proceed to a public hearing; and that the document is inconsistent with a decision to proceed to public

hearing.

On behalf of the Tribunal it was submitted that it had complied with paragraph J(2) and that the order of the High Court should be

affirmed.

14. Decision

This appeal turns on the construction of paragraph J(2) of the Amended Terms of Reference and the query whether the Tribunal

complied with paragraph J(2) in its document of 28th April, 2005.

I would uphold the trial judge's determination that the word 'shall' in paragraph J(2) is mandatory. I would uphold also the decision of

the learned trial judge that whether the Tribunal considered it had complied with paragraph J(2) or not is not relevant. It is a question

of the construction of the document. I would affirm the decision of the High Court that compliance with paragraph J(2) is a necessary

pre-requisite to the Tribunal proceeding to public hearing on an additional matter. Further, I would affirm the decision of the High

Court that the consequence 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 on those additional matters.

It is necessary to consider the document of 28th April, 2005 to see if it shows compliance with paragraph J(2). I fail to find any great

assistance in the heading. It states that it refers to a "List of additional matters pursuant to paragraph J(2) of the Amended Terms of

Reference passed by resolution of the Houses of the Oireachtas, on 17th November 2004". While it is a reference to additional matters

and to paragraph J(2) it does not state that it is a decision pursuant to paragraph J(2). Nor does the first sentence of the document

clarify the matter. That sentence states: "The following matters have been designated as hereinafter listed for ease of reference". So

matters are designated? But designated for what? I do not agree with the submission of counsel for the respondents that this

sentence records a decision to proceed to public hearing in respect of the Fitzwilton £30,000 Module. Whatever may have been the

intention, the words are not capable of bearing that meaning.

I also note the words of the next paragraph. These are:-

"The Tribunal may decide to continue its inquiries and/or proceed to public hearing in respect of one or more issues which

are currently part of a matter designated and listed herein."

The words "The Tribunal may decide" is not a record that a decision has been made. The words are not "The Tribunal has decided".

Rather, the words, "The Tribunal may decide", indicate that a decision may be taken in the future by the Tribunal. It is clear that the

Tribunal has considered the listed matters. This is the first step required by the Houses of the Oireachtas.

The second step the Tribunal was required to take was to make a decision as to the additional matters which should proceed to

public hearing. The words in the document "… may decide to continue its inquiries and/or proceed to public hearing in respect of one

or more issues … listed herein" indicate that the Tribunal reserved its decision to a future date, which may be a reference to the

discretion conferred by paragraph J(6). The words "may decide", indicate an action in the future. This is confirmed by the words

stating that the Tribunal may do either of two things. The specific words: "and/or proceed to public hearing", describe a situation

where the matters are under consideration not decision.

The third step is to record the decision. On its face the document of the 28th April, 2005, does not record a decision that specified

additional matters go to a public hearing.

Counsel on behalf of the Tribunal made submissions that paragraph J(2) must be read in conjunction with paragraph J(6), and that the

operation of paragraph J(2) is affected by paragraph J(6). This was an ingenious argument. However, I am satisfied that the

paragraphs refer to separate and discrete decisions. Paragraph J(2) requires that a decision be made as to additional matters to go to

public hearing. Thereafter the Tribunal retains the discretion set out in paragraph J(6). This discretion may be exercised on matters

identified in paragraph J(1) and in paragraph J(2). The matters in J(1) were identified in the Amended Terms of Reference itself. The

matters under paragraph J(2) were to be identified by the Tribunal. A decision is required under paragraph J(2) to bring a matter to

public hearing before the discretion in paragraph J(6) may be exercised. As the decision was not recorded under paragraph J(2), the

matter of the exercise of the discretion under paragraph J(6) does not arise.

The decision required of the Tribunal by the 1st day of May, 2005 is relevant to the jurisdiction of the Tribunal. It is a condition

precedent to additional matters going to a public hearing. The decision not having been made by the Tribunal by the 1st day of May,

2005, the Tribunal has no jurisdiction to proceed with additional matters under paragraph J(2). Thus the Tribunal has no jurisdiction to

proceed to public hearing of the Fitzwilton £30,000 module.

15. In this Court the Tribunal put forward in written submissions, and to a limited extent in oral submissions, an alternative argument.

The High Court being satisfied that the Tribunal had complied with the requirements of paragraph J(2), did not address these

alternative arguments. The discretionary arguments were referred to as 'fall back arguments' in the High Court. In this Court they

were submitted as a 'fall back argument' also. The submission was that even if there were criticisms to be made of the record that it

undoubtedly was a record of the decision and that any infirmity in the written recording does not go to jurisdiction.

In general, issues which have not been decided by the High Court do not arise for decision in this appellate Court. It is only in

exceptional circumstances that this Court will exercise its discretion and entertain an issue not determined in the High Court. This is

done on rare occasions in the interests of justice.

In this case it is not necessary to consider such an unusual step, as the alternative arguments do not arise. Paragraph J(2) required

the Tribunal to consider what additional matters should go to public hearing, to decide what additional matters should so proceed, to

make a written record of the decision, and to notify the parties. This is not a situation of an infirmity in a written record, it is a matter

going to jurisdiction, and dependent on the necessary decisions. I am satisfied that the Tribunal did not make a decision, it deferred

its decision on the 28th April, 2005. Consequently, no decision was made prior to 1st May, 2005. The document of the 28th April,

2005 clearly indicates a postponement of the decision. Thus it is not a record of a decision to proceed to public hearings. Nor is it a

document with an infirmity. It is a document plainly indicating a contrary decision, a postponement of the decision. I would distinguish

this appeal from the authorities referred to. Reference was made to Monaghan UDC v Alf-a-Bet Promotions Ltd [1980] ILRM 64 at p.69

where Henchy J. dealt with the issue of sufficient compliance with the terms of the planning regulations, stating:-

"In such circumstances, what the Legislature has, either immediately in the Act or mediately in the regulations, nominated

as being obligatory may not be depreciated to the level of a mere direction except on the application of the de minimis

rule. In other words, what the Legislature has prescribed, or allowed to be prescribed, in such circumstances as

necessary should be treated by the courts as nothing short of necessary, and any deviation from the requirements must,

before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so technical, or so

peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that

matters, the prescribed obligation has been substantially, and therefore adequately, complied with."

I would distinguish that analysis from this case. This is not a trivial, technical, peripheral or insubstantial matter. It is not a situation

where the obligation has been substantially met. Indeed, it is quite the contrary situation.

Counsel relied also on the words of Finlay C.J. in McDonagh & Sons Ltd v Galway Corporation [1995] 1 IR 191, at p.202, where he

stated:-

"I am quite satisfied that in this particular case, whilst compliance with regulations concerning applications for planning

permission is important, and in many cases may be fundamental, that a misstatement, which was not intentional, which

did not have the effect of misleading anyone and which could not possibly have been in any way to the disadvantage

either of the planning authority or of the public who would have a right to object, could not possibly have prevented

these applicants from obtaining the declarations if otherwise they were entitled to them."

The facts of the two cases are entirely different, and distinguishable. This is not a case of misstatement, and there is a clear

disadvantage to the applicants. However, the fundamental difference is that this is a case where the issue goes to jurisdiction. As

there is a want of jurisdiction by the Tribunal these "fall back arguments" of the Tribunal have no application.

16. Conclusion

The Tribunal was established in 1997. The concept behind the establishment of a tribunal is that there be an inquiry into definite

matters as a matter of urgent public importance. The fact that the Tribunal is still inquiring ten years later is the antithesis of an

urgent public inquiry.

In the Amended Terms of Reference the Houses of the Oireachtas limited the scope of the Tribunal. In paragraph J(2) the Houses set

a limit on subject matters and also set a time limit. These were mandatory requirements of the Houses. The Tribunal was required to

consider, decide and record what additional matters should go forward to a public hearing, and this was to be done by 1st May, 2005.

The Houses of the Oireachtas sought certainty on the additional matters to go to public hearing, and put a time limitation on that

decision.

The Tribunal has submitted that the document of the 28th April, 2005 was the implementation of paragraph J(2) of the Amended

Terms of Reference. However, for the reasons set out previously, that document does not record a decision on the additional matters

which should proceed to public hearing.

The Tribunal has not recorded the decision required of it by the Houses of the Oireachtas. Such decision was a condition precedent

to the Tribunal having jurisdiction to bring additional matters to a public hearing, pursuant to paragraph J(2). This not having been

done, the Tribunal has no jurisdiction to proceed under paragraph J(2). Consequently, the Tribunal has no jurisdiction to proceed with

the £30,000 Fitzwilton module.

I would allow the appeal. I would grant a declaration that the Tribunal has failed to comply with paragraph J(2) of the Amended Terms

of Reference and that accordingly the Tribunal has no jurisdiction to proceed to hold a public hearing in relation to the £30,000

Fitzwilton module. As the document of 28th April, 2005 does not record a decision to go to public hearing, it is not necessary or

appropriate to grant the relief of certiorari. In the circumstances, where the Tribunal has not got jurisdiction to proceed to hold a

public hearing on the £30,000 Fitzwilton module, and where a declaration to that effect is being granted, I do not deem it necessary

to grant an order of prohibition restraining the Tribunal from holding a public hearing on the £30,000 Fitzwilton module as I am satisfied

that the lack of jurisdiction having been determined on this appeal, it is unnecessary to make any further order.