Supreme Court allows appeal against Tribunal for failing to strictly comply with mandatory written terms of reference.

THE SUPREME COURT

Denham J.

Geoghegan J.

Fennelly J.

Kearns J.

Butler J.

[037/2007]

BETWEEN

FITZWILTON LIMITED, GOULDING LIMITED AND RENNICKS SIGN MANUFACTURING

APPLICANTS/APPELLANTS

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 Kearns delivered the 4th day of July, 2007

I have read the judgment delivered herein by Denham J. and gratefully adopt the narrative statement of background facts contained

therein.

A very net point falls to be considered in this appeal, and it is this: does a document dated 28 April, 2005 and signed by the Members

of the Tribunal demonstrate that effect has been given by the Tribunal to the mandatory terms contained in the Amended Terms of

Reference given to the Tribunal following the passing of a resolution by the Houses of the Oireachtas on 17 November, 2004 and the

making of an instrument for that purpose by the Minister for the Environment and Local Government on 3 December, 2004?

Those Amended Terms of Reference contained a new paragraph, paragraph J, which, so far as is material to these proceedings,

provided as follows:-

“(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.

(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 proceeding 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.”

These directions were given to the Tribunal following the publication by the Tribunal of its Fourth Interim Report on 4th June, 2004.

Quite clearly, the Oireachtas intended, as undoubtedly the Tribunal did also, that the work of the Tribunal should achieve finality

within a reasonable time, particularly having regard to the time and cost associated with its ongoing work, and thus the mandate

given to the Tribunal was clear. The additional terms were much more specific than those suggested by the Tribunal itself in its

Report to the Oireachtas. The Tribunal was obliged under its Amended Terms of Reference, by 1st May, 2005, or such earlier date as

it should decide, to:-

(a) ‘consider and’

(b) ‘decide’ upon those ‘additional matters’ in respect of which the Tribunal had conducted or was currently conducting a

preliminary investigation (it being agreed that the “Fitzwilton matter” was one such matter) that ‘shall’ be proceeding to a

public hearing ‘and shall’

(c) ‘record’ that decision in writing ‘and shall’

(d) ‘duly notify’ all parties affected by that decision at such time or times as the Tribunal considers appropriate.

In the course of his judgment in the High Court, Feeney J. stated (at p10):-

“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).”

In the course of the hearing of this appeal neither side has challenged the correctness of that finding by the learned High Court

judge. This is not a case where it falls to the Tribunal to apply its own interpretation to the instruction from the Oireachtas

notwithstanding that it may do so in relation to its other terms of reference. Nor do the parties challenge the further finding of the

High Court that compliance with paragraph J(2) is a necessary prerequisite to the Tribunal having jurisdiction to proceed to a public

hearing in respect of the designated matters. That said, the respondents have in this Court queried whether ‘strict’ compliance with

the Amended Terms was necessary and, as a fallback position, argue that ‘substantial compliance’ in carrying out the wishes of the

Oireachtas would meet the compliance requirements contained in J(2). In either event, both parties accept that the issue raised in

this case falls to be determined solely by reference to the interpretation to be placed on the document of 28th April, 2005

(hereinafter referred to as the “J(2) List”) and not by anything which the Tribunal may have intended when preparing same.

The J(2) document reads as follows:-

“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.

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 is hereinafter listed may be changed if the Tribunal so determines, in the

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 a

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

amended).

J (2) List

Fitzwilton-MMDS-Payment to Ray Burke by Rennicks

Dated 28th day of April, 2005

Signed (members of Tribunal).”

The learned High Court judge took the view that while the document as a whole must be looked at to determine its meaning, the

heading of the document gave it both context and meaning. He noted that it was expressly stated therein that the list of additional

matters was pursuant to paragraph J(2). He was of the opinion that the use of the word “pursuant” in a postpositive form followed by

the word “to” was demonstrative of a clear stated intention that the document had been prepared so as to be in agreement or

conformity with paragraph J(2) of the amended Terms of Reference.

I would agree with that finding if the only obligation created by paragraph J(2) was one to list additional matters without specifying

any specific purpose for their listing. Equally, I would have no difficulty in accepting or adopting the conclusion of the learned High

Court judge that the requirements of J(2) were met if there was but one requirement contained in J(2). There are however four

distinct mandatory requirements created by J(2), being respectively the obligation to consider, the obligation to decide, the obligation

to record that decision in writing and the obligation to notify all parties affected by that decision. The fact - if fact it be - that there

has been compliance with the first three requirements must be apparent from the face of the written record. But is such a decision,

ie, that public hearings should take place in respect of any listed matter, apparent from the heading of this document? I do not

believe it is. The heading conveys to me only that certain matters were listed and designated somewhere else in the document but it

certainly does not state for what purpose.

In interpreting the remainder of the document the learned High Court judge was of the view that the first paragraph identified the

matters which had been designated and which were thereinafter listed. He said:-

“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.”

I agree only with the last part of this sentence, namely, that there is no obligation to use any particular form of words. However the

fact that a decision has been made to hold public hearings in respect of the listed matters must be apparent. The first paragraph,

which merely recites that “the following matters have been designated as hereinafter listed for ease of reference”, is neutral or silent

as to which of the J(2) purposes is served by the designation and listing. The second paragraph simply does not lend itself to an

interpretation that a decision to hold public hearings had been made in respect of the designated matters because it provides:-

“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.”(emphasis added)

In my view this paragraph, most notably by its use of the words which I have emphasised, conveys precisely the opposite meaning

from that contended for by the respondents. The use of the conditional “may” and the words “and/or proceed to public hearing” in

the context of continuing “its inquiries” (which must, in these circumstances, mean inquiries which are still private) is incompatible

with an interpretation which posits that an actual decision to hold public hearings has already been taken.

In the course of argument before this Court, the respondents have not sought to argue or maintain that any distinction of

significance is to be drawn between the word “issues” and “matter”. Nor do I believe any such distinction could be drawn. If the J(2)

list represents a decision to conduct public hearings in respect of any matter, it necessarily follows that an issue, which forms part of

such matter, must also be the subject matter of such decision. The second paragraph can only mean, in my view, that the Tribunal,

having reviewed its files, had identified and selected a number of matters in respect of which it might wish in futuro to hold public

hearings

This interpretation is reinforced by the final paragraph of the J(2) list which provides:-

“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).”(Emphasis added)

Again, this provision is quite inconsistent with a decision already made to hold or conduct public hearings in respect of the matters

designated in the J(2) List.

Gerard Hogan, senior counsel for the respondents, has however sought to persuade the court that paragraph J(2) in the Amended

Terms of Reference must be read in conjunction with J(6) so that the two provisions are construed as one. He argued that J(6)(1)

specifically authorised the Tribunal to carry out such preliminary investigations in private under J(2) as it thought fit in order to

determine whether sufficient evidence existed in relation to a designated matter to warrant proceeding to a public hearing if deemed

necessary. However, in response, Maurice Collins, senior counsel for the appellants, argued that J(6) (1) could only refer to some

altogether other matter of which the Tribunal became aware while investigating a J(1) matter or ‘an additional matter’ under J(2),

because J(3) provides:-

“The Tribunal may in the course of investigating any additional matter under paragraph J(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.” (Emphasis added)

I think Mr. Collins is correct in this submission and that the provision of J(2) and J(6) can not be conflated as suggested by Mr.

Hogan. The construction of J(6)(1) for which Mr Hogan argues can not sit in harmony with an ‘already made’ J(2) decision to proceed

to public hearing in respect of a listed matter. The amended Terms of Reference contemplate an initial decision to proceed to a public

hearing being made on or before 1 May, 2005. A later decision to qualify, modify or abandon that decision may be taken by reference

to J(6). That does not in any way affect the obligation to decide which additional matters shall be proceeding to a public hearing as

required by J(2). In other words, J(6) confers a discretion which may later be exercised by the Tribunal in relation to a matter already

decided by it under J(2).

Thus, while the members of the Tribunal may have intended to comply with their Terms of Reference, the J(2) list was unfortunately

drafted in such a way as to indicate at most only that consideration had been given to the designated matters. It certainly does not

indicate that a decision had been made to hold public hearings, nor does it record any such decision.

Mr Hogan suggested that, if criticisms were to be made of the record, any infirmities did not go to jurisdiction given that there had

been ‘substantial compliance’ with the mandatory requirements of paragraph J(2). He argued that the court still retained a discretion

not to grant certiorari if some minor error only had arisen, particularly in circumstances where the applicants had suffered no

demonstrable loss or prejudice. In making this ‘fall back’ case, Mr Hogan relied in particular on the observations of Henchy J in

Monaghan UDC v Alf-a-Bet Promotions Limited [1980] ILRM 64 where, in relation to a question as to whether there had been sufficient

compliance with the terms of planning regulations, Henchy J stated:-

“…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 regret I can not take the view that the requirement to consider, decide and record compliance with the mandatory requirements of

the Oireachtas can be watered down or pushed aside, or that the omissions in this case fall to be characterised as mere technical or

peripheral matters. Having regard to the substantial encroachment on the rights of those citizens or bodies subjected to public

hearings, I am satisfied that there must be strict compliance with those requirements of Terms of Reference which go to the heart of

jurisdiction.

In Maguire v Ardagh [2002] 1 I.R 385, this Court had to consider whether a consent under s. 3 of the Committees of the Houses of

the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 could be rendered in oral form when s. 3(9) of the

Act indicated that a consent of an appropriate subcommittee should be in writing and signed by the chairman of the subcommittee. At

p. 572 of her judgment in the case Denham J, reflecting the view of both the Divisional Court and the majority of the Supreme Court,

stated:-

“The words (of the section) are plain. They require that a consent of the appropriate sub-committee shall be in writing.

The words are clear. It is a mandatory requirement. The consent is required to be in writing. There is no provision for an

oral consent….I am satisfied that a valid consent under this section must be in writing in a document as specified. An oral

consent, or a consent not yet in document form as specified, is not a consent for the purposes of s. 3(9) of the Act.”

While this was said in the context of an Act of the Oireachtas I fail to see how a direction from the Oireachtas, couched as it is in

such peremptory terms in the Amended Terms of Reference, can be the subject of some other standard when the requirements of the

Terms are so explicitly expressed. I see no room for an approach based on ‘substantial compliance’ where a fundamental issue of

jurisdiction is concerned and where, on the face of the record, any decision which may have been made appears to me to be at

variance with the type of decision required by the Amended Terms of Reference.

I would therefore allow the appeal and agree with the form of order suggested by Denham J.